O'brien v. Bainbridge

• Decision Date: 18 November 2011
• Parties: Colleen O'BRIEN, Plaintiff–Respondent–Appellant,v.Larry J. BAINBRIDGE and Fedex Ground Package System, Inc., Defendants–Appellants–Respondents. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 1511
932 N.Y.S.2d 785
2011 N.Y. Slip Op. 08401

Colleen O'BRIEN, Plaintiff–Respondent–Appellant,
v.
Larry J. BAINBRIDGE and Fedex Ground Package System, Inc., Defendants–Appellants–Respondents. (Appeal No. 2.)

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

Nov. 18, 2011.

[932 N.Y.S.2d 786]

Burden, Gulisano & Hickey, LLC, Buffalo (Sarah Hansen of Counsel), for Defendants–Appellants–Respondents.Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Respondent–Appellant.PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ.MEMORANDUM:

[89 A.D.3d 1511] Plaintiff commenced this action seeking damages for injuries she sustained when the United States Postal Service vehicle she was driving was broadsided at an intersection in the City of Buffalo by a delivery truck owned and operated by defendant Larry J. Bainbridge pursuant to a contract for package delivery with defendant FedEx Ground Package System, Inc. In appeal No. 1, defendants appeal and plaintiff cross-appeals from an order denying defendants' motion 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) and denying plaintiff's cross motion for partial summary judgment on the issue of serious injury. We note at the outset that, in her original bill of particulars, plaintiff alleged that she sustained four categories of serious injury, i.e, the significant disfigurement, permanent loss of use, significant limitation of use and 90/180–day categories. In her amended bill of particulars, however, which predates Supreme Court's decision in appeal No. 1, plaintiff added the category of permanent consequential limitation of use. In its written decision underlying the order in appeal No. 1, the court addressed only the initial four categories in denying defendants' motion, but did not address the additional fifth category. Thus, the permanent loss of use category remained intact despite the [89 A.D.3d 1512] court's failure to address it expressly in the order, inasmuch as the decision controls the order in the case of a discrepancy between the two ( see generally Matter of Edward V., 204 A.D.2d 1060, 614 N.Y.S.2d 348), and neither party challenges

[932 N.Y.S.2d 787]

the court's ruling with respect to that category.

In appeal No. 2, defendants appeal and plaintiff cross-appeals from an order granting defendants' motion for leave to reargue...