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McKendry v. Thornberry

January 26, 2009


The opinion of the court was delivered by: Henry F. Zwack, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

In this motor vehicle accident case, defendant moves for summary judgment. Plaintiff opposes the motion.

On December 9, 2002, the parties collided in their respective vehicles on 8th Street and Jacob Street in the City of Troy.

Defendant now moves for summary judgment on the basis that plaintiff failed to sustain a serious injury as defined by Insurance Law 5102(d). Plaintiff's bill of particulars lists "loss of the unborn child of the plaintiff" as the basis for plaintiff's alleged serious injury. Defendant relies upon plaintiff's testimony at her deposition wherein she testified that she was told by a physician's assistant that the motor vehicle accident was not the cause of her miscarriage. Defendant submits an affirmed report from a doctor who avers that it is his opinion "to within a reasonable degree of medical certainty that the motor vehicle accident was not the casualty of this early pregnancy loss". The doctor also notes his medical opinion that "From conception to 6 weeks gestation, the pregnancy is in the embryonic stage and the product of conception is an embryo and not a fetus." He notes his opinion that plaintiff was "no more than 1 week pregnant".

In opposition to the motion, plaintiff argues that, as a matter of law, a pregnancy of any duration constitutes a "fetus" as the term is used in the Insurance Law's No Fault statute. Plaintiff also submits that a triable question of fact is raised by plaintiff's submission of an affidavit of plaintiff's treating doctor, who avers that based upon a reasonable degree of medical probability, the subject motor vehicle accident was the cause of plaintiff's miscarriage.

In reply, defendant notes that plaintiff's doctor's affidavit did not respond to or contradict defendant's doctor on the issue of whether a one week pregnancy would be termed an "embryo" or a "fetus". Defendant also argued that there did not appear to be a dispute regarding the fact that plaintiff was approximately one week pregnant at the time of the accident and that medical and dictionary definitions of the term "fetus" do not include a pregnancy of one week. Defendant notes that a medical dictionary defines the term "fetus" as "from the third month to birth", Webster's dictionary defines the term as "usually two months after conception to birth" and that an "Expectant mother's guide", cited in plaintiff's opposition papers, states that "by the 10th week, the embryo is known as a fetus". Defendant argues that therefore the plain meaning of the statutory language mandates a finding that plaintiff did not sustain a "loss of a fetus".

In surreply, plaintiff argues that the rules of statutory construction require that the intent of the Legislature be given priority over medical definitions and dictionary definitions because the term "fetus" is a word of technical or special meaning.

Oral argument was held on January 20, 2009. At the appearance, plaintiff's counsel stipulated to the fact that plaintiff was less than 6 weeks pregnant. Defendant's counsel acknowledged that medical definitions of the term "fetus" appear to range from 6 to 12 weeks of gestation.

Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The focus should be on issue identification rather than issue determination (Sternbach v. Cornell University, 162 AD2d 922, 923 [3d Dept. 1990]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Ayotte v Gervasio, 81 NY2d 1062 [1993]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once the movant has established a right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez, supra; Zuckerman, supra). The evidence must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, in order to determine whether there is any triable issue of fact outstanding (see Suffolk Co. Dept. of Soc. Servs. v James M., 83 NY2d 178, 182 [1994]; Boyce v Vazquez, 249 AD2d 724, 725 [3d Dept. 1998]).

In New York State, a party alleging negligence in a motor vehicle accident may only recover damages for pain and suffering if they have suffered a "serious injury" pursuant to Insurance Law § 5102(d) (see Ins. Law § 5104[a]; Pommells v Perez, 4 NY3d 566 [2005]). A serious injury is defined as follows:

a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Ins. Law § 5102[d].

A defendant seeking summary judgment asserting that plaintiff failed to meet the serious injury threshold has the initial burden of presenting evidence in admissible form establishing that plaintiff did not suffer a serious injury causally related to the accident in question (Gaddy v Eyler, 79 NY2d 955, 956-57 [1992]; Hayes v Johnston, 17 AD3d 853, 853-54 [3d Dept 2005]; Santos v Marcellino, 297 AD2d 440, 441 [3d Dept 2002]). To meet this burden, defendant may submit plaintiff's own deposition testimony and defendant's own examining doctor's affirmed report (Moore v Edison, 25 AD3d 672 [2d Dept 2006]; Farozes v Kamran, 22 AD3d 458, 458 [2d Dept 2005]; McNamara v Wood, 19 AD3d 921, 922 [3d Dept 2005]). Once a defendant has met their burden, the burden shifts to the plaintiff "to come forward with ...

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