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

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