Cicco v. Durolek

• Decision Date: 10 February 2017
• Citation: 147 A.D.3d 1487,47 N.Y.S.3d 198
• Parties: Michael P. CICCO, Plaintiff–Appellant, v. Fred S. DUROLEK and Elaine A. Durolek, Defendants–Respondents. (Appeal No. 2.).
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1487

47 N.Y.S.3d 198

Michael P. CICCO, Plaintiff–Appellant,

v.Fred S. DUROLEK and Elaine A. Durolek, Defendants–Respondents. (Appeal No. 2.).

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

Feb. 10, 2017.

Law Office of Eric B. Grossman, Williamsville (Eric B. Grossman of Counsel), for Plaintiff–Appellant.

Roe & Associates, Williamsville (Robert E. Gallagher, Jr., of Counsel), for Defendants–Respondents.

PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

In this action to recover damages for personal injuries, plaintiff appeals from an order that, inter alia, denied those parts of his motion for partial summary judgment on the issues of whether he sustained a serious injury as a result of the motor vehicle accident and whether he incurred economic loss in excess of basic economic loss. We affirm. With respect to the issue of serious injury, and even assuming, arguendo, that plaintiff met his initial burden of demonstrating his entitlement to judgment as a matter of law (see DeAngelis v. Martens Farms, LLC, 104 A.D.3d 1125, 1126–1127, 961 N.Y.S.2d 643 ; Monette v. Trummer [Appeal No. 2], 96 A.D.3d 1547, 1549, 946 N.Y.S.2d 748 ), we conclude that defendants raised a triable issue of fact concerning whether plaintiff's injuries were causally related to the accident or the result of a preexisting injury to his lumbar spine (see DeAngelis, 104 A.D.3d at 1126–1127, 961 N.Y.S.2d 643 ; Monette, 96 A.D.3d at 1549, 946 N.Y.S.2d 748 ). On this record, it is not possible to determine as a matter of law whether the injuries of plaintiff that were objectively ascertained after the accident were the same injuries that were objectively ascertained before the accident. To the contrary, the conflicting opinions of the parties' respective experts warrant a trial on the issue of serious injury (see Cooper v. City of Rochester, 16 A.D.3d 1117, 1118, 791 N.Y.S.2d 239 ; see generally Selmensberger v. Kaleida Health, 45 A.D.3d 1435, 1436, 845 N.Y.S.2d 659 ).

We likewise conclude that there are triable issues of fact concerning whether plaintiff sustained economic losses in excess of basic economic loss as a result of the accident (see Colvin v. Slawoniewski, 15 A.D.3d 900, 900, 789 N.Y.S.2d 368 ; cf. Wilson v. Colosimo, 101 A.D.3d 1765, 1767, 959 N.Y.S.2d 301 ; Hartman–Jweid v. Overbaugh, 70 A.D.3d 1399, 1400–1401, 894 N.Y.S.2d 784 ; see generally Insurance Law §§ 5102[a] ; 5104[a] ).

It is hereby ORDERED that the order so...