MONACO, JOANNE v. STEINER, AMANDA M. ( 2012 )


Menu:
  •            SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1413
    CA 12-01206
    PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.
    JOANNE MONACO, PLAINTIFF-APPELLANT,
    V                            MEMORANDUM AND ORDER
    AMANDA M. STEINER AND TERRENCE J. STEINER,
    DEFENDANTS-RESPONDENTS.
    WILLIAM K. MATTAR, P.C., WILLIAMSVILLE (APRIL J. ORLOWSKI OF COUNSEL),
    FOR PLAINTIFF-APPELLANT.
    KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (NANCY A. LONG OF COUNSEL),
    FOR DEFENDANTS-RESPONDENTS.
    Appeal from an order of the Supreme Court, Erie County (John M.
    Curran, J.), entered September 14, 2011 in a personal injury action.
    The order granted defendants’ motion for summary judgment and
    dismissed the complaint.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: Plaintiff commenced this action seeking damages for
    injuries she allegedly sustained in a motor vehicle accident.
    Defendants moved for summary judgment dismissing the complaint on the
    ground that plaintiff did not sustain a serious injury within the
    meaning of Insurance Law § 5102 (d) as a result of the accident.
    Supreme Court properly granted the motion. Defendants met their
    initial burden of establishing that plaintiff did not sustain a
    serious injury under any of the categories alleged, i.e., the
    permanent loss of use, permanent consequential limitation of use,
    significant limitation of use and 90/180-day categories (see generally
    Zuckerman v City of New York, 49 NY2d 557, 562), and plaintiff failed
    to raise an issue of fact with respect to the permanent loss of use
    and 90/180-day categories (see generally id.). Although plaintiff
    arguably raised an issue of fact whether she is suffering from a
    permanent consequential limitation of use or a significant limitation
    of use, the motion nevertheless was properly granted inasmuch as her
    medical expert failed to establish that the injuries were causally
    related to the accident and not to her prior neck and back complaints
    (see Pommells v Perez, 4 NY3d 566, 572; MacMillan v Cleveland, 82 AD3d
    1388, 1388-1389; Clark v Perry, 21 AD3d 1373, 1374).
    Entered:   December 28, 2012                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 12-01206

Filed Date: 12/28/2012

Precedential Status: Precedential

Modified Date: 11/1/2024