Carlson v. Manning

• Decision Date: 04 August 2022
• Docket Number: 447,CA 21-00896
• Citation: 208 A.D.3d 997,173 N.Y.S.3d 809
• Parties: Antoinette N. CARLSON, Plaintiff-Respondent, v. Carol L. MANNING, and Douglas M. Nichols, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 997
173 N.Y.S.3d 809

Antoinette N. CARLSON, Plaintiff-Respondent,
v.
Carol L. MANNING, and Douglas M. Nichols, Defendants-Appellants.

447
CA 21-00896

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

Entered: August 4, 2022

LAW OFFICE OF JOHN WALLACE, ROCHESTER (JORDYN MARIE PHILLIPS OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

CELLINO LAW LLP, BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

208 A.D.3d 997

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff sustained a serious injury to her cervical spine under the significant limitation of use and permanent consequential limitation of use categories of serious injury within the meaning of Insurance Law § 5102 (d), and that plaintiff sustained a serious injury to her left shoulder, and dismissing the claim for economic loss in excess of basic economic loss, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when her vehicle was struck, while making a left turn at an intersection, by a vehicle driven by defendant Douglas M. Nichols and owned by Nichols's mother, defendant Carol L. Manning. Insofar as relevant here, plaintiff alleged that, as a result of the motor vehicle accident, she sustained serious injuries within the meaning of Insurance Law § 5102 (d) under the significant disfigurement, permanent consequential limitation of use, significant

208 A.D.3d 998

limitation of use, and 90/180-day categories based on injuries to her right foot, cervical spine, lumbar spine, and left shoulder. Defendants moved for

173 N.Y.S.3d 813

summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a serious injury to her cervical spine as contemplated by section 5102 (d), and that any injuries to her left shoulder, right foot, and lumbar spine were related to preexisting conditions. Plaintiff cross-moved for summary judgment on the issue of, inter alia, negligence. Defendants now appeal from an order that, among other things, denied their motion and granted that part of plaintiff's cross motion seeking summary judgment on the issue of negligence.

We conclude at the outset that, contrary to defendants’ contention, Supreme Court did not abuse its discretion in allowing plaintiff to make her cross motion after expiration of both the 120-day period after the filing of the note of issue and a subsequent deadline allegedly imposed by the court (see CPLR 3212 [a] ). There is no order in the record demonstrating that the subsequent deadline was imposed, defendants established no prejudice from the delay (see Chambers v. City of New York , 147 A.D.3d 471, 472, 47 N.Y.S.3d 17 [1st Dept. 2017] ), the cross motion was timely within the meaning of CPLR 2215, and the record supports the court's conclusion that plaintiff's delay was attributable to the parties’ good faith participation in settlement negotiations (see generally Brill v. City of New York , 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004] ; Cibener v. City of New York , 268 A.D.2d 334, 334, 701 N.Y.S.2d 405 [1st Dept. 2000] ). Furthermore, even assuming, arguendo, that the cross motion was untimely, it is well settled that "[a]n untimely ... cross motion for summary judgment may be considered by the court where[, as here,] a timely motion was made on nearly identical grounds" ( Sikorjak v. City of New...