Frizzell v. Giannetti

• Decision Date: 17 November 2006
• Docket Number: CA 06-00360.
• Citation: 824 N.Y.S.2d 531,34 A.D.3d 1202,2006 NY Slip Op 08369
• Parties: DEBRA A. FRIZZELL et al., Appellants, v. GEORGE T. GIANNETTI et al., Respondents.
• Court: New York Supreme Court — Appellate Division

34 A.D.3d 1202

824 N.Y.S.2d 531

2006 NY Slip Op 08369

DEBRA A. FRIZZELL et al., Appellants, v. GEORGE T. GIANNETTI et al., Respondents.

CA 06-00360.

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, Jefferson County (Hugh A. Gilbert, J.), entered September 13, 2005 in a personal injury action. The order granted defendants' motions for summary judgment dismissing the complaint and denied plaintiffs' cross motion.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motions in part and reinstating the complaint with respect to the permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system categories of serious injury within the meaning of Insurance Law § 5102 (d) and reinstating the derivative cause of action and granting that part of the cross motion with respect to the issue of negligence against defendant George T. Giannetti and as modified the order is affirmed without costs.

Memorandum:

Plaintiffs commenced this action seeking damages for injuries sustained by Debra A. Frizzell (plaintiff) in a motor vehicle accident. According to plaintiffs, a vehicle driven by defendant Corinne M. Mulligan rear-ended plaintiff's vehicle, which was stopped at a red light. Plaintiffs alleged that a vehicle driven by defendant George T. Giannetti then rear-ended Mulligan's vehicle, which in turn again rear-ended plaintiff's vehicle.

Supreme Court erred in granting those parts of defendants' motions for summary judgment dismissing the complaint with respect to two of the three categories of serious injury allegedly sustained by plaintiff, i.e., a permanent consequential limitation of use and a significant limitation of use (see Insurance Law § 5102 [d]), and we therefore modify the order accordingly. Mulligan met her initial burden with respect to those two categories of serious injury by submitting the report of defendants' examining physician, who stated that plaintiff sustained "causally related cervical and lumbar strains ... that would have been healed within the first six weeks after the motor vehicle accident." The physician further stated that "[a]ll of the imaging studies showed only degenerative changes" that were not related to the accident and that plaintiff's nerve compression disorders shown by the nerve conduction tests and the EMG study were not related to the accident. The medical records submitted by Giannetti in support of his motion and by plaintiffs in opposition to defendants' motions raised a triable issue of fact with respect to those two categories of serious injury. The physician who treated plaintiff for her back and neck injuries diagnosed plaintiff with fibromyalgia and documented plaintiff's decreased reflexes, positive straight leg tests, and a positive Flip test (see Pagels v P.V.S. Chems., 266 AD2d 819 [1999]). Moreover, an EMG study showed objective...