Flisch v. Walters, 500415.
| Decision Date | 12 July 2007 |
| Docket Number | 500415. |
| Citation | 2007 NY Slip Op 05980,839 N.Y.S.2d 602,42 A.D.3d 682 |
| Parties | JESSE L. FLISCH, an Infant, by His Mother and Guardian, KATHLEEN M. FLISCH, et al., Respondents, v. ERIC M. WALTERS et al., Defendants, and LINCOLN D. FLISCH et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court (Hummel, J.), entered February 15, 2006 in Columbia County, which, upon reconsideration, adhered to its prior decision denying a motion by defendants Lincoln D. Flisch and Yaicha A. Flisch for summary judgment dismissing the complaint of plaintiff Ashley Styles against them.
Plaintiffs commenced this action seeking damages for, among other things, the alleged residual consequences of a head injury sustained by plaintiff Ashley Styles (hereinafter plaintiff) in a motor vehicle accident. Following discovery, defendants Yaicha A. Flisch and Lincoln D. Flisch (hereinafter collectively referred to as defendants) moved for summary judgment dismissing the complaint of plaintiff against them on the ground that she had not sustained a serious injury within the meaning of Insurance Law § 5102 (d). Supreme Court denied the motion, finding that defendants had failed to meet their initial burden of proof. Defendants moved to reargue, pointing out that the court had mistakenly rejected the report of an independent medical evaluation (hereinafter IME) conducted by defendants' neurologist. Supreme Court then acknowledged its error, reviewed the report, again found that defendants had not met their burden and stated that "[d]efendants' motion to ... reargue is denied." Defendants appeal.
Although defendants' notice of appeal refers only to Supreme Court's order purporting to deny reargument and, of course, an order denying reargument is not appealable (see e.g. Fitzgerald v Adirondack Tr. Lines, Inc., 23 AD3d 907, 909 n [2005]), we view the court's decision and order as having granted the motion for leave to reargue. Despite the court's statement that it denied reargument, it nevertheless acknowledged its error with respect to the IME, reconsidered defendants' motion for summary judgment and then adhered to its prior decision (see CPLR 2221 [f]). Under these circumstances, we consider this to be an appeal as of right (see Corey v Gorick Constr. Co., 271 AD2d 911, 912 [2000]; see also CPLR 5701 [a] [2] [viii]).
Turning to Supreme Court's finding that defendants failed to meet their burden of proof, we note that their moving papers focused on whether plaintiff sustained a serious injury under either the permanent consequential limitation of use or the significant limitation of use categories (see Insurance Law § 5102 [d]). They rely primarily on the report of Rene Elkin, a neurologist who stated that although plaintiff sustained a "significant head injury" with contusions and an epidural hematoma, these conditions subsequently resolved and an IME conducted two years later revealed no objective signs of neurological dysfunction. Elkin also opined that plaintiff's current subjective complaints, such as headaches, dizziness, poor concentration and short-term memory loss, could not be connected to any objective findings, and plaintiff's reported behavioral changes could not be ascribed to the head injury with any degree of medical certainty. Also, Elkin properly relied on the reports of plaintiff's treating physicians (see McElroy v Sivasubramaniam, 305 AD2d 944, 945 [2003]; Cody v Parker, 263 AD2d 866, 867 [1999]), the hospital records and an MRI report, in addition to her own physical examination of plaintiff.
In reply to plaintiffs' opposing papers, which first raised the claim that plaintiff sustained a qualifying serious injury in the 90/180-day category, defendants pointed out both that the records established, at most, only a six-day period of disability and there was no objective medical evidence of an injury that prevented plaintiff from performing her normal activities thereafter. In addition, plaintiff was able to return to school and neither she nor her mother avowed that she had been unable to undertake any of her normal activities other than not participating in sports. Thus, contrary to Supreme Court's finding, defendants met their initial burden as to all categories of serious injury claimed by plaintiffs (see Tuna v Babendererde, 32 AD3d 574, 576 [2006]; Hayes v Johnston, 17 AD3d 853, 853-854 [2005]; Jones v Norwich City School Dist., 283 AD2d 809, 811 [2001])...
To continue reading
Request your trial
-
Tully v. Kenmore-Tonawanda Union Free Sch. Dist.
...had significant affective disorder underlying her various subjective mental and physical complaints (see Flisch v. Walters , 42 A.D.3d 682, 683, 839 N.Y.S.2d 602 [3d Dept. 2007] ). Although plaintiff asserts that defendants’ own submissions raise a triable issue of fact because the IME neur......
-
McDonald v. McDonald
...a disabled parent ( see e.g. Matter of Graby v. Graby, 87 N.Y.2d at 611, 641 N.Y.S.2d 577, 664 N.E.2d 488; Matter of Weymouth v. Mullin, 42 A.D.3d at 682, 839 N.Y.S.2d 600; Matter of Cohen v. Hartmann, 285 A.D.2d at 675–676, 726 N.Y.S.2d 806), the same result is appropriate in relation to S......
-
Tully v. Kenmore-Tonawanda Union Free School Dist.
...and, instead, had significant affective disorder underlying her various subjective mental and physical complaints (see Flisch v Walters, 42 A.D.3d 682, 683 [3d Dept 2007]). Although plaintiff asserts that defendants' own submissions raise a triable issue of fact because the IME neurologist ......
-
Rodriguez v. Jacoby & Meyers, LLP
...and adhered to its prior decision—notwithstanding language in the order indicating that reargument was denied (see Flisch v. Walters, 42 A.D.3d 682, 683, 839 N.Y.S.2d 602 [2007] ; Adderley v. State of New York, 35 A.D.3d 1043, 1043, 825 N.Y.S.2d 384 [2006] ; Grasso v. Schenectady County Pub......