Thornton v. Husted Dairy, Inc.

• Citation: 134 A.D.3d 1402,23 N.Y.S.3d 760
• Parties: Diane THORNTON, Plaintiff–Appellant, v. HUSTED DAIRY, INC., Defendant–Respondent.
• Decision Date: 23 December 2015
• Court: New York Supreme Court Appellate Division

134 A.D.3d 1402

23 N.Y.S.3d 760

Diane THORNTON, Plaintiff–Appellant,

v.HUSTED DAIRY, INC., Defendant–Respondent.

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

Dec. 23, 2015.

Morgan Law Firm, P.C., Syracuse (William R. Morgan of Counsel), for Plaintiff–Appellant.

Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Karen J. Krogman Daum of Counsel), for Defendant–Respondent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, WHALEN, and DeJOSEPH, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking economic and noneconomic damages arising from an accident in which a vehicle owned by defendant collided with her vehicle. Plaintiff moved for partial summary judgment on "[s]erious [i]injury and [l]iability," and defendant cross-moved for summary judgment dismissing the amended complaint. Supreme Court denied plaintiff's motion and granted defendant's cross motion, dismissing the amended complaint. Plaintiff now appeals.

We reject plaintiff's contention that the court erred in denying that part of her motion seeking partial summary judgment on the issue of defendant's negligence. Plaintiff contends that the emergency doctrine does not apply to the driver of defendant's vehicle, but we conclude that plaintiff's own submissions raise questions of fact regarding the applicability of that doctrine (see Colangelo v. Marriott, 120 A.D.3d 985, 986–987, 990 N.Y.S.2d 763 ).

Contrary to plaintiff's further contention, the court properly denied that part of her motion seeking partial summary judgment on the issue of serious injury, and properly granted that part of defendant's cross motion seeking dismissal of the first cause of action in the amended complaint insofar as it sought damages based on plaintiff's alleged serious injury. We note that on appeal plaintiff relies only on the 90/180–day category of serious injury, and thus has abandoned the remaining categories of serious injury alleged in her bill of particulars and supplemental bill of particulars (see Harrity v. Leone, 93 A.D.3d 1204, 1205, 940 N.Y.S.2d 386 ; Delk v. Johnson, 92 A.D.3d 1234, 1234, 938 N.Y.S.2d 401 ; see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 ).

In support of its cross motion, defendant established that plaintiff did not sustain an injury that prevented her " ‘from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury’ " (Hill v. Cash, 117 A.D.3d 1423, 1425, 985 N.Y.S.2d 345, quoting Nitti v. Clerrico, 98 N.Y.2d 345, 357 n. 5, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ). Defendant relied on plaintiff's medical records, which showed that plaintiff's treating physician cleared plaintiff to work less than 90 days after the accident (see Dann v. Yeh, 55 A.D.3d 1439, 1441, 865 N.Y.S.2d 472 ). We conclude that defendant thereby established that plaintiff's activities were not curtailed to a "great extent" (Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088 ). In addition, defendant submitted evidence establishing that there was no objective proof that plaintiff sustained a serious injury (see Lauffer v. Macey, 74 A.D.3d 1826, 1827, 903 N.Y.S.2d 631 ; see generally Nitti, 98 N.Y.2d at 357, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ). The report of an orthopedic surgeon who examined plaintiff concluded that plaintiff had only degenerative disc changes (see Lux v. Jakson, 52 A.D.3d 1253, 1254, 859 N.Y.S.2d 813 ). In opposition to the cross motion, plaintiff failed to raise a triable issue of fact. The affirmation of her treating physician did not dispute his office notes showing that plaintiff was cleared for work less than 90 days after the accident, and he failed to address the degenerative changes in plaintiff's imaging results (see id. ).

Contrary to plaintiff's contention, the court properly granted that part of defendant's cross motion...