Williams v. Jones

• Citation: 31 N.Y.S.3d 348,139 A.D.3d 1346,2016 N.Y. Slip Op. 03607
• Decision Date: 06 May 2016
• Docket Number: 286 CA 15-00730.
• Parties: Tyshawn J. WILLIAMS, Plaintiff–Appellant, v. Lavalra M. JONES, Defendant–Respondent.
• Court: New York Supreme Court Appellate Division

139 A.D.3d 1346
31 N.Y.S.3d 348
2016 N.Y. Slip Op. 03607

Tyshawn J. WILLIAMS, Plaintiff–Appellant,
v.
Lavalra M. JONES, Defendant–Respondent.

286 CA 15-00730.

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

May 6, 2016.

31 N.Y.S.3d 348

Louis Rosado, Buffalo, for Plaintiff–Appellant.

31 N.Y.S.3d 349

Hagelin Kent LLC, Buffalo (Brent C. Seymour of Counsel), for Defendant–Respondent.

PRESENT: WHALEN, P.J., CENTRA, CARNI, DeJOSEPH, AND TROUTMAN, JJ.

MEMORANDUM:

139 A.D.3d 1346

Plaintiff commenced this action seeking damages for injuries he sustained in a motor vehicle accident that occurred when defendant tried to turn left in front of plaintiff's oncoming vehicle. Supreme Court granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and plaintiff appeals.

139 A.D.3d 1347

To the extent that plaintiff contends that he sustained a serious injury under the permanent loss of use category, that contention is not properly before us because it is raised for the first time on appeal (see Verkey v. Hebard, 99 A.D.3d 1205, 1206, 952 N.Y.S.2d 356 ). In any event, we conclude that the contention is without merit inasmuch as the record establishes that plaintiff did not sustain a “total” loss of use of his cervical spine (Oberly v. Bangs Ambulance, 96 N.Y.2d 295, 299, 727 N.Y.S.2d 378, 751 N.E.2d 457 ; see Constantine v. Serafin, 16 A.D.3d 1145, 1145–1146, 790 N.Y.S.2d 917 ).

We reject plaintiff's contention that there is a triable issue of fact whether he sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories. Defendant met her burden on the motion with respect to those categories by submitting evidence that plaintiff sustained only a temporary cervical strain, rather than any significant injury to his nervous system or spine, as a result of the accident (see Jones v. Leffel, 125 A.D.3d 1451, 1452, 3 N.Y.S.3d 230 ; Parkhill v. Cleary, 305 A.D.2d 1088, 1089, 759 N.Y.S.2d 262 ; see generally Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). In opposition to the motion, plaintiff failed to provide a qualitative or quantitative assessment demonstrating the seriousness of his injuries and thus failed to raise a triable issue of fact as to either of those two categories (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350–351, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Bleier v. Mulvey, 126 A.D.3d 1323, 1324, 5 N.Y.S.3d 749 ).

We agree with plaintiff, however, that the court erred in granting defendant's motion with respect to the claim of a serious injury under the 90/180–day category, i.e., a medically determined injury or impairment of a nonpermanent nature that prevented him from performing substantially all of his usual and customary daily activities for 90 of the 180 days after the accident (see Insurance Law § 5102[d] ). We therefore modify the order accordingly. Even assuming, arguendo, that defendant met her initial burden of establishing as a matter of law that plaintiff did not sustain the requisite medically determined injury (cf. Zeigler v. Ramadhan, 5 A.D.3d 1080, 1081, 774 N.Y.S.2d 211 ), we conclude that plaintiff raised triable issues of fact through the affirmed report of his treating physician, who described objective MRI findings that included a disc bulge and asserted that plaintiff had sustained a “chronic/recurrent acute cervical strain /sprain with cervical disc injury” that was causally related to the accident (see Rissew v. Smith, 89 A.D.3d 1383, 1384, 932 N.Y.S.2d 291 ; Mancuso v. Collins, 32 A.D.3d 1325, 1326, 822 N.Y.S.2d 193 ; cf. Nitti v. Clerrico, 98 N.Y.2d 345, 357, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ). We further conclude that defendant failed to establish as a matter of law that

139 A.D.3d 1348

plaintiff

31 N.Y.S.3d 350

“was not ‘curtailed from performing [his] usual activities to a great extent rather than some slight curtailment’ ” during the time period at issue (O'Neal v. Cancilla, 294 A.D.2d 921, 922, 741 N.Y.S.2d 815, quoting Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088 ; see Summers v. Spada, 109 A.D.3d 1192, 1193, 971 N.Y.S.2d 773 ; Zeigler, 5 A.D.3d at 1081, 774 N.Y.S.2d 211 ; Cummings v. Riedy, 4 A.D.3d 811, 813, 771 N.Y.S.2d 629 ).

We cannot agree with the dissent that plaintiff's submissions failed to raise an issue of fact concerning the alleged causal relationship between the accident and his limitations during the ensuing 180 days. One of plaintiff's medical records from the period at issue states that, “[b]ased on [plaintiff's] reports and [his medical providers'] clinical findings,” plaintiff was suffering from a temporary total disability and was to remain off work pending a further evaluation, and we therefore conclude that this is not a case in which contemporaneous medical records contain no reference to any limitations on the plaintiff's daily activities (cf. Womack v. Wilhelm, 96 A.D.3d 1308, 1310, 948 N.Y.S.2d 163 ). Moreover, plaintiff was 20 years old at the time of the accident, with no preexisting injuries, and, as noted above, the physician who treated plaintiff after the accident asserted that he had sustained a causally related cervical disc injury. In our view, when a plaintiff presents objective evidence of a medically determined...