Ellithorpe v. Marion

• Decision Date: 17 November 2006
• Docket Number: CA 05-02620.
• Citation: 34 A.D.3d 1195,824 N.Y.S.2d 836,2006 NY Slip Op 08366
• Parties: DANIEL L. ELLITHORPE, Respondent, v. JOHN A. MARION et al., Appellants. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

34 A.D.3d 1195

824 N.Y.S.2d 836

2006 NY Slip Op 08366

DANIEL L. ELLITHORPE, Respondent, v. JOHN A. MARION et al., Appellants. (Appeal No. 2.)

CA 05-02620.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided November 17, 2006.

Appeal from an order of the Supreme Court, Onondaga County (William R. Roy, J.), entered November 16, 2005 in a personal injury action. The order granted defendants' motion for leave to renew and, upon renewal, adhered to the court's prior determination.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by providing that plaintiff's motion is granted with respect to the permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system, and 90/180 categories of serious injury within the meaning of Insurance Law § 5102 (d) and with respect to causation of those injuries and by providing that a trial shall be held on damages only and as modified the order is affirmed without costs.

Memorandum:

Plaintiff commenced the instant action seeking damages for injuries he allegedly sustained in a motor vehicle accident wherein his vehicle collided with a vehicle driven by John A. Marion (defendant) and owned by defendant's wife, defendant Cecilia M. Marion. Plaintiff's complaint, as amplified by the bill of particulars, alleges that plaintiff sustained a serious injury under the permanent loss of use, permanent consequential limitation of use, significant limitation of use, and 90/180 categories of serious injury. Supreme Court granted plaintiff's motion seeking summary judgment on liability insofar as it determined "that liability for the accident is solely upon the defendants" and, without specifying the statutory category, that plaintiff "sustained a serious injury in the accident." The court nevertheless ordered that a trial be held to determine not only damages but also "the proximate cause of plaintiff's injuries." Defendants contend that the court erred in determining that plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident.

We conclude that plaintiff failed to establish that he had a total loss of a body function, and therefore that he failed to establish his entitlement to judgment with respect to the permanent loss of use category (see Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]). We further conclude, however, that plaintiff established his entitlement to judgment with respect to the remaining three categories of serious injury and that defendants failed to raise an issue of fact sufficient to defeat the motion. Indeed, we note that defendants' examining physician concurred with the findings of plaintiff's treating neurosurgeon that plaintiff's injuries are causally related to the accident and that surgical intervention is appropriate. We therefore modify the order accordingly.

With respect to the permanent consequential limitation of use and significant limitation of use categories, plaintiff's deposition testimony establishes that, despite a history of weightlifting and a prior work-related accident, plaintiff did not have back pain prior to the accident. He testified that, although he eventually returned to work as a personal...