Bleier v. Mulvey

• Citation: 5 N.Y.S.3d 749,2015 N.Y. Slip Op. 02248,126 A.D.3d 1323
• Decision Date: 20 March 2015
• Docket Number: 116 CA 14-01342
• Parties: William J. BLEIER, Plaintiff–Respondent, v. Gregory J. MULVEY and Mulvey Construction, Inc., Defendants–Appellants.
• Court: New York Supreme Court Appellate Division

126 A.D.3d 1323

5 N.Y.S.3d 749

2015 N.Y. Slip Op. 02248

William J. BLEIER, Plaintiff–Respondent

v.Gregory J. MULVEY and Mulvey Construction, Inc., Defendants–Appellants.

116 CA 14-01342

Supreme Court, Appellate Division, Fourth Department, New York.

March 20, 2015.

Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Rochester (Alison K.L. Moyer of Counsel), for Defendants–Appellants.

Brenna, Brenna & Boyce, PLLC, Rochester (Robert L. Brenna, Jr., of Counsel), for Plaintiff–Respondent.

PRESENT: SMITH, J.P., CARNI, LINDLEY, and VALENTINO, JJ.

OpinionMEMORANDUM:

Plaintiff commenced this action seeking damages for injuries he allegedly sustained when a vehicle he was operating was rear-ended by a vehicle owned by defendant Mulvey Construction, Inc. and operated by defendant Gregory J. Mulvey. Defendants moved for summary judgment on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and Supreme Court granted their motion only in part, denying the motion with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury. We agree with defendants that the court should have granted their motion in its entirety. Defendants met their burden with respect to those two categories by submitting the affirmed reports of a physician who examined plaintiff on their behalf and reviewed plaintiff's medical records.

The physician concluded that plaintiff had sustained only a minor cervical strain

in the accident, that the injury had resolved, that the limitations he measured in plaintiff's range of motion were evidenced solely by subjective complaints of pain, and that there was no objective evidence of any injury causally related to the accident (see Griffo v. Colby, 118 A.D.3d 1421, 1422, 988 N.Y.S.2d 763 ; Wilson v. Colosimo, 101 A.D.3d 1765, 1766, 959 N.Y.S.2d 301 ). The evidence submitted by plaintiff in opposition to the motion does not provide “either a quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones” (Clements v. Lasher, 15 A.D.3d 712, 713, 788 N.Y.S.2d 707, citing Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; see Malesa v. Burg, 105 A.D.3d 1410, 1410–1411, 963 N.Y.S.2d 808 ), and is therefore insufficient to raise an issue of fact with respect to either category (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).

It is hereby...