THORNTON, DIANE v. HUSTED DAIRY, INC. ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1220
CA 14-02230
PRESENT: SCUDDER, P.J., SMITH, CENTRA, WHALEN, AND DEJOSEPH, JJ.
DIANE THORNTON, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
HUSTED DAIRY, INC., DEFENDANT-RESPONDENT.
MORGAN LAW FIRM, P.C., SYRACUSE (WILLIAM R. MORGAN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN J. KROGMAN DAUM
OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Onondaga County (Hugh
A. Gilbert, J.), entered September 8, 2014. The order denied the
motion of plaintiff for partial summary judgment on serious injury and
liability and granted the cross motion of defendant for summary
judgment dismissing the amended complaint.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the cross motion in part
and reinstating the second cause of action and as modified the order
is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking economic and
noneconomic damages arising from an accident in which a vehicle owned
by defendant collided with her vehicle. Plaintiff moved for partial
summary judgment on “[s]erious [i]injury and [l]iability,” and
defendant cross-moved for summary judgment dismissing the amended
complaint. Supreme Court denied plaintiff’s motion and granted
defendant’s cross motion, dismissing the amended complaint. Plaintiff
now appeals.
We reject plaintiff’s contention that the court erred in denying
that part of her motion seeking partial summary judgment on the issue
of defendant’s negligence. Plaintiff contends that the emergency
doctrine does not apply to the driver of defendant’s vehicle, but we
conclude that plaintiff’s own submissions raise questions of fact
regarding the applicability of that doctrine (see Colangelo v
Marriott, 120 AD3d 985, 986-987).
Contrary to plaintiff’s further contention, the court properly
denied that part of her motion seeking partial summary judgment on the
issue of serious injury, and properly granted that part of defendant’s
cross motion seeking dismissal of the first cause of action in the
-2- 1220
CA 14-02230
amended complaint insofar as it sought damages based on plaintiff’s
alleged serious injury. We note that on appeal plaintiff relies only
on the 90/180-day category of serious injury, and thus has abandoned
the remaining categories of serious injury alleged in her bill of
particulars and supplemental bill of particulars (see Harrity v Leone,
93 AD3d 1204, 1205; Delk v Johnson, 92 AD3d 1234, 1234; see generally
Ciesinski v Town of Aurora, 202 AD2d 984, 984).
In support of its cross motion, defendant established that
plaintiff did not sustain an injury that prevented her “ ‘from
performing substantially all of the material acts which constitute
such person’s usual and customary daily activities for not less than
90 days during the 180 days immediately following the occurrence of
the injury’ ” (Hill v Cash, 117 AD3d 1423, 1425, quoting Nitti v
Clerrico, 98 NY2d 345, 357 n 5). Defendant relied on plaintiff’s
medical records, which showed that plaintiff’s treating physician
cleared plaintiff to work less than 90 days after the accident (see
Dann v Yeh, 55 AD3d 1439, 1441). We conclude that defendant thereby
established that plaintiff’s activities were not curtailed to a “great
extent” (Licari v Elliott, 57 NY2d 230, 236). In addition, defendant
submitted evidence establishing that there was no objective proof that
plaintiff sustained a serious injury (see Lauffer v Macey, 74 AD3d
1826, 1827; see generally Nitti, 98 NY2d at 357). The report of an
orthopedic surgeon who examined plaintiff concluded that plaintiff had
only degenerative disc changes (see Lux v Jakson, 52 AD3d 1253, 1254).
In opposition to the cross motion, plaintiff failed to raise a triable
issue of fact. The affirmation of her treating physician did not
dispute his office notes showing that plaintiff was cleared for work
less than 90 days after the accident, and he failed to address the
degenerative changes in plaintiff’s imaging results (see id.).
Contrary to plaintiff’s contention, the court properly granted
that part of defendant’s cross motion with respect to her claim for
economic loss in the first cause of action. While we agree with
plaintiff that she is not required to show a serious injury on her
claim for economic loss, she failed to establish that her total
economic losses exceeded her basic economic loss (see Wilson v
Colosimo, 101 AD3d 1765, 1767; Colon v Montemurro, 33 AD3d 512, 512-
513). We agree with plaintiff, however, that the court erred in
granting that part of defendant’s cross motion with respect to the
second cause of action in the amended complaint, seeking damages for
her vehicle, and we therefore modify the order accordingly. Basic
economic loss does not include property damage, including damage to a
party’s vehicle (see Olsen v State of New York, 2014 WL 10520538, *2
[Ct Cl]; see also Porto v Blum, 39 AD3d 614, 616; Pajda v Pedone, 303
AD2d 729, 730).
Entered: December 23, 2015 Frances E. Cafarell
Clerk of the Court