Clarke v. Dangelo

• Decision Date: 27 September 2013
• Parties: James B. CLARKE, Plaintiff–Appellant, v. Carol DANGELO, Raymond Dangelo and Lori Gayhart Zecchino, Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 1194
971 N.Y.S.2d 774
2013 N.Y. Slip Op. 06202

James B. CLARKE, Plaintiff–Appellant,
v.
Carol DANGELO, Raymond Dangelo and Lori Gayhart Zecchino, Defendants–Respondents.

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

Sept. 27, 2013.

[971 N.Y.S.2d 775]

Thomas J. Rzepka, Rochester, for Plaintiff–Appellant.

Law Offices of Destin C. Santacrose, Buffalo (Elise L. Cassar of Counsel), for Defendants–Respondents Carol Dangelo and Raymond Dangelo.

Law Offices of Foster, Foster & Zambito, LLP, Spencerport (Charles N. Zambito of Counsel), for Defendant–Respondent Lori Gayhart Zecchino.

PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.

MEMORANDUM:

[109 A.D.3d 1194][1] Plaintiff commenced this action seeking damages for injuries he allegedly

[971 N.Y.S.2d 776]

sustained in a three-vehicle collision. In his bill of particulars, plaintiff alleged that he sustained a serious injury under the permanent loss of use, permanent consequential limitation of use, significant limitation of use, and 90/180–day categories set forth in Insurance Law § 5102(d). Supreme Court properly granted defendants' respective motion and cross motion seeking summary judgment dismissing the complaint and cross claims against them on the ground that plaintiff did not sustain a serious injury within the meaning of the statute. Plaintiff does not raise any issue on appeal regarding the permanent loss of use category, and he has therefore abandoned any contention with respect thereto ( see Smith v. Reeves, 96 A.D.3d 1550, 1551, 946 N.Y.S.2d 750;Austin v. Rent A Ctr. E., Inc., 90 A.D.3d 1542, 1543, 935 N.Y.S.2d 767).

Defendants met their burden with respect to the permanent consequential limitation of use and significant limitation of use categories by submitting the affirmed report of the physician who examined plaintiff on behalf of defendants. That physician concluded that plaintiff sustained only sprain/strain injuries in the accident, which had resolved ( see Scheer v. Koubek, 70 N.Y.2d 678, 679, 518 N.Y.S.2d 788, 512 N.E.2d 309;Rabolt v. Park, 50 A.D.3d 995, 995, 858 N.Y.S.2d 197), and that the conditions revealed in the diagnostic imaging tests were preexisting degenerative changes that were not causally related to the accident ( see Pommells v. Perez, 4 N.Y.3d 566, 579, 797 N.Y.S.2d 380, 830 N.E.2d 278). Contrary to plaintiff's contention, the affidavit of his [109 A.D.3d 1195]treating neurologist failed to address that evidence, “except in conclusory...