Connis v. Menichetti

• Decision Date: 12 January 2012
• Citation: 936 N.Y.S.2d 391,2012 N.Y. Slip Op. 00162,91 A.D.3d 1092
• Parties: Robert CONNIS, Appellant, v. M.E. MENICHETTI, Jr., Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00162
91 A.D.3d 1092
936 N.Y.S.2d 391

Robert CONNIS, Appellant,
v.
M.E. MENICHETTI, Jr., Respondent.

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

Jan. 12, 2012.

[936 N.Y.S.2d 391]

Stanley Law Offices, Syracuse (Robert A. Quattrocci of counsel), for appellant.

Smith, Sovik, Kendrick & Sugnet, Syracuse (Robert Cahalan), for respondent.

Before: SPAIN, J.P., LAHTINEN, MALONE, JR., STEIN and EGAN, JR., JJ.

SPAIN, J.P.

[91 A.D.3d 1092] Appeal from an order of the Supreme Court (Lebous,[91 A.D.3d 1093] J.), entered December 2, 2010 in Broome County, which partially granted plaintiff's motion for, among other things, summary judgment.

In this personal injury action involving a rear-end automobile accident, plaintiff successfully moved for summary judgment on the issue of negligence, but his motion for summary judgment on the issue of serious injury was denied. Only plaintiff appeals. Finding questions of fact which preclude summary judgment on the issue of serious injury, we now affirm.

Plaintiff alleges a “permanent consequential limitation of use of a body organ or member” and “significant limitation of use of a body function or system” (

[936 N.Y.S.2d 392]

Insurance Law § 5102[d] ). To support his motion for summary judgment, in addition to his own testimony describing debilitating pain, mobility restrictions and efforts to manage his pain, plaintiff submitted reports from a CT scan taken after the accident and a subsequent MRI showing degenerative disc disease and bulging at the C3–4 and C4–5 levels. Plaintiff's chiropractor, his primary care physician and three other physicians, each of whom examined plaintiff, all described significant limitations in plaintiff's range of motion. The expert medical opinions submitted also provide evidence of causation, in that plaintiff was diagnosed with cervical strain resulting from the automobile accident that aggravated his preexisting degenerative disc disease.

In response, defendant did not argue that plaintiff failed to make a prima facie case, but instead creates a material issue of fact precluding summary judgment by offering evidence to undermine plaintiff's credibility. Defendant provided evidence that plaintiff misrepresented the reason that he eventually stopped working after the accident, a videotape which suggests that defendant may have a greater range of motion in his neck than he claims and various comments from doctors suggesting that plaintiff's description of...