Boroszko v. Zylinski

• Decision Date: 17 June 2016
• Citation: 2016 N.Y. Slip Op. 04830,140 A.D.3d 1742,32 N.Y.S.3d 424
• Parties: Brenda M. BOROSZKO and Robert R. Boroszko, Plaintiffs–Appellants, v. Gerald J. ZYLINSKI, Praxair Distribution, Inc., Michael A. Peca and Kristen L. Peca, Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1742

32 N.Y.S.3d 424

2016 N.Y. Slip Op. 04830

Brenda M. BOROSZKO and Robert R. Boroszko, Plaintiffs–Appellants,

v.Gerald J. ZYLINSKI, Praxair Distribution, Inc., Michael A. Peca and Kristen L. Peca, Defendants–Respondents.

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

June 17, 2016.

Magavern Magavern Grimm LLP, Buffalo (Edward J. Markarian of Counsel), for Plaintiffs–Appellants.

Goldberg Segalla LLP, Buffalo (Paul D. McCormick of Counsel), for Defendants–Respondents Gerald J. Zylinski and Praxair Distribution, Inc.

Burgio, Kita, Curvin & Banker, Buffalo (James P. Burgio of Counsel), for Defendants–Respondents Michael A. Peca and Kristen L. Peca.

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Brenda M. Boroszko (plaintiff) in two separate motor vehicle accidents. In January 2009, plaintiff was involved in an accident when defendant Gerald J. Zylinski, who was operating a vehicle owned by his employer, defendant Praxair Distribution, Inc. (collectively, Praxair defendants), exited a parking lot onto the street and collided with the passenger side of plaintiff's vehicle. In January 2011, plaintiff was involved in another accident when she was rear-ended while stopped at a red light by a vehicle operated by defendant Michael A. Peca and owned by defendant Kristen L. Peca (collectively, Peca defendants). As relevant on appeal, plaintiffs alleged that, as a result of the accidents, plaintiff “sustained[,] aggravated [,] and/or exacerbated” injuries to her cervical and lumbar spine under the permanent loss of use, permanent consequential limitation of use, and significant limitation of use categories of serious injury as defined in Insurance Law § 5102(d). The Peca defendants moved for summary judgment dismissing the complaint against them on the ground that plaintiff did not sustain a serious injury within the meaning of those categories, and the Praxair defendants cross-moved for the same relief. Plaintiffs opposed defendants' motions, and cross-moved for partial summary judgment on the issue of the Praxair defendants' negligence. Supreme Court granted the Peca defendants' motion and the Praxair defendants' cross motion, and denied plaintiffs' cross motion. We affirm.

We note at the outset that plaintiffs limit their appeal to the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d), and therefore they have abandoned the other remaining category of serious injury alleged in their bills of particulars, i.e., permanent loss of use (see Fanti v. McLaren, 110 A.D.3d 1493, 1494, 972 N.Y.S.2d 807 ). Further, plaintiffs concede that plaintiff suffered no serious injury to her cervical or lumbar spine following the first accident in January 2009. They contend that plaintiff's lumbar spine injury did not exist until the second accident in January 2011 and that her cervical spine injury qualified as serious under the statute only upon aggravation or exacerbation as a result of the second accident in January 2011.

Plaintiffs contend that the Peca defendants failed to meet their initial burden of establishing that plaintiff did not have any serious injury following the second accident that arose from aggravation or exacerbation of her preexisting injuries and/or conditions. We reject that contention. In support of their motion, the Peca defendants submitted hospital records from the date of the second accident, which established that, although plaintiff reported neck and back pain and was ultimately diagnosed with a sprain in those areas, her physical examination demonstrated “[n]o true pain along her cervical spine,” her cervical spine X rays showed no fracture, she was given pain medication, and she was discharged. Moreover, while plaintiff's radiology report showed no visible pathologic prevertebral soft tissue swelling, it did show “moderate multilevel degenerative disc disease with moderate degenerative changes throughout the cervical spine.” In addition to various other medical records, the Peca defendants also submitted an affirmed report of a physician who reviewed plaintiff's records and conducted a physical examination of her, as well as an affirmed report of a radiologist who reviewed plaintiff's MRI records. The physician and the radiologist opined that plaintiff's complaints following the second accident were the same as those prior to that accident, that plaintiff's MRIs and X rays—which showed degenerative changes—were unchanged after the second accident, and that there was no evidence of posttraumatic injuries to plaintiff's cervical or lumbar spine following the second accident (see Garcia v. Feigelson, 130 A.D.3d 498, 499, 13 N.Y.S.3d 417 ; Heatter v. Dmowski, 115 A.D.3d 1325, 1326, 983 N.Y.S.2d 179 ; Pina v. Pruyn, 63 A.D.3d 1639, 1639, 881 N.Y.S.2d 740 ; Faso v. Fallato, 39 A.D.3d 1234, 1234, 834 N.Y.S.2d 409 ...