Reilly v. Fulmer, 95466.

• Decision Date: 29 July 2004
• Docket Number: 95466.
• Citation: 2004 NY Slip Op 06237,780 N.Y.S.2d 830,9 A.D.3d 818
• Parties: JERID REILLY, Respondent, v. MARVIN FULMER, Respondent, and NATHAN L. HILL et al., Appellants.
• Court: New York Supreme Court — Appellate Division

9 A.D.3d 818

780 N.Y.S.2d 830

2004 NY Slip Op 06237

JERID REILLY, Respondent, v. MARVIN FULMER, Respondent, and NATHAN L. HILL et al., Appellants.

95466.

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

July 29, 2004.

Appeal from an order of the Supreme Court (Mulvey, J.), entered May 21, 2003 in Chemung County, which denied the motion of defendants Nathan L. Hill and Carrie A. Clark for summary judgment dismissing the complaint and any cross claims against them.

LAHTINEN, J.

Plaintiff was involved in two motor vehicle accidents occurring approximately four months apart. The first took place in October 1999 when defendant Marvin Fulmer allegedly failed to stop for a red light and struck the passenger side of plaintiff's car. Following the accident, plaintiff sought treatment for, among other things, purported injuries to his lower back. In February 2000, an automobile driven by defendant Nathan L. Hill and owned by defendant Carrie A. Clark struck the rear of plaintiff's vehicle while he was stopped at a red light. He continued seeking treatment for back problems, which he states worsened after the second accident. A May 2000 MRI scan showed disc bulging and a February 2001 discography of his lumbar spine revealed annular tears of varying degrees at L1-2, L2-3, L3-4, L4-5 and L5-S1.

Plaintiff commenced this action in March 2002. In his subsequent bill of particulars, he alleged that he sustained back injuries in the first accident and that such injuries were aggravated in the ensuing accident. Prior to the completion of discovery, Hill and Clark moved for summary judgment dismissing the complaint as to them upon the ground that plaintiff did not suffer a separate serious injury in the second accident. Supreme Court denied the motion. Hill and Clark appeal.

The issue before us is narrow. Hill and Clark did not seek to establish before Supreme Court that plaintiff, who was not deposed when this motion was made, did not sustain any serious injury. Instead, their argument focused on the contention that the medical records established that plaintiff did not suffer a serious injury in the second accident. Generally, a successive tortfeasor's liability is limited to the separate injury or aggravation caused by his or her conduct, unless the injuries are incapable of practicable allocation, in which instance joint and several liability may be implicated (see Ravo v Rogatnick, 70 NY2d 305, 310 [1987]; La Fountaine v Franzese, 282 AD2d 935, 938 [2001]). Moreover, the fact that an earlier injury or condition makes an individual more susceptible to a subsequent injury does not provide a ground for the later tortfeasor to fully escape liability (see Owen v Rochester-Penfield Bus Co., 304 NY 457, 460-461 [1952]; ...