Smith v. Cornell,

• Court: New York Supreme Court Appellate Division
• Citation: 2012 N.Y. Slip Op. 04561,96 A.D.3d 1462,947 N.Y.S.2d 696
• Parties: Eleanor M. SMITH, Plaintiff–Respondent, v. Crystal M. CORNELL and Christina Cornell, Defendants–Appellants.
• Decision Date: 08 June 2012

96 A.D.3d 1462
947 N.Y.S.2d 696
2012 N.Y. Slip Op. 04561

Eleanor M. SMITH, Plaintiff–Respondent,
v.
Crystal M. CORNELL and Christina Cornell, Defendants–Appellants.

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

June 8, 2012.

[947 N.Y.S.2d 697]

Thomas P. Durkin, Rochester (Stephanie A. Mack of Counsel), for Defendants–Appellants.

Jones & Skivington, Geneseo (Peter K. Skivington of Counsel), for Plaintiff–Respondent.

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.

MEMORANDUM:

[96 A.D.3d 1462]Plaintiff commenced this action seeking damages for injuries she allegedly sustained when her vehicle was [96 A.D.3d 1463]rear-ended by a vehicle driven by defendant Crystal M. Cornell and owned by defendant Christina Cornell. Although plaintiff failed to comply with the scheduling order with respect to completing discovery and filing a note of issue, the record establishes that plaintiff's surgery for injuries she allegedly sustained as a result of the accident was delayed on several occasions for reasons outside of her control. Thus, in the absence of a “clear abuse of discretion,” we conclude that Supreme Court properly denied that part of defendants' motion seeking to dismiss the complaint based on the failure of plaintiff to comply with the scheduling order ( Roswell Park Cancer Inst. Corp. v. Sodexo Am., LLC, 68 A.D.3d 1720, 1721, 891 N.Y.S.2d 827;see Eaton v. Hungerford, 79 A.D.3d 1627, 1628, 915 N.Y.S.2d 429;cf. Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 81, 917 N.Y.S.2d 68, 942 N.E.2d 277;Arts4All, Ltd. v. Hancock, 54 A.D.3d 286, 863 N.Y.S.2d 193,affd.12 N.Y.3d 846, 881 N.Y.S.2d 390, 909 N.E.2d 83,rearg.denied13 N.Y.3d 762, 886 N.Y.S.2d 862, 915 N.E.2d 1158,cert. denied––– U.S. ––––, 130 S.Ct. 1301, 175 L.Ed.2d 1076).

With respect to that part of defendants' motion seeking summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102(d), we agree with defendants that they established their entitlement to judgment as a matter of law with respect to the 90/180–day category and that plaintiff failed to raise an issue of fact ( see generally Harrity v. Leone, 93 A.D.3d 1204, 1205–1206, 940 N.Y.S.2d 386). We therefore modify the order accordingly. With respect to the significant limitation of use category of serious injury, however, we conclude that, although defendants met their initial burden, plaintiff raised an issue of fact sufficient to defeat...