D'ANGELO, STEPHANIE v. LITTERER, ANDREA S. ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
981
CA 11-00425
PRESENT: SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ.
STEPHANIE D’ANGELO, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
ANDREA S. LITTERER, DEFENDANT-APPELLANT.
HAGELIN KENT LLC, BUFFALO (VICTOR M. WRIGHT OF COUNSEL), FOR
DEFENDANT-APPELLANT.
BROWN CHIARI LLP, LANCASTER (BRADLEY D. MARBLE OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered September 17, 2010 in a personal injury action.
The order, insofar as appealed from, denied in part the motion of
defendant for summary judgment.
It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is granted
in its entirety and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when the vehicle she was driving
collided with a vehicle driven by defendant. Supreme Court erred in
denying in part defendant’s motion seeking summary judgment dismissing
the complaint on the ground that plaintiff did not sustain a serious
injury within the meaning of Insurance Law § 5102 (d). Defendant met
her initial burden by submitting medical records and the report of the
physician who conducted a medical examination on defendant’s behalf
establishing that the injuries allegedly sustained by plaintiff in the
accident were preexisting. “Because defendant submitted ‘persuasive
evidence that plaintiff’s alleged pain and injuries were related to .
. . preexisting condition[s], plaintiff had the burden to come forward
with evidence addressing defendant’s claimed lack of causation’ ”
(Clark v Perry, 21 AD3d 1373, 1374, quoting Pommells v Perez, 4 NY3d
566, 580). Plaintiff, however, failed to meet that burden. Indeed,
her “submissions in opposition to the motion did not ‘adequately
address how plaintiff’s current medical problems, in light of
[plaintiff’s] past medical history, are causally related to the
subject accident’ ” (Anania v Verdgeline, 45 AD3d 1473, 1474; see
Hartman-Jweid v Overbaugh, 70 AD3d 1399, 1400).
Entered: September 30, 2011 Patricia L. Morgan
Clerk of the Court