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Barton v. Kohler

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


March 19, 2010

JANICE BARTON, APPELLANT,
v.
JENNIFER L. KOHLER ET AL., RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered February 13, 2009 in a personal injury action. The order, among other things, granted defendants' motion for summary judgment.

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

As corrected through Wednesday, April 28, 2010

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum

Plaintiff commenced this action seeking damages for injuries she allegedly sustained when her vehicle was struck by a vehicle owned by defendant Terry H. Kohler and operated by defendant Jennifer L. Kohler. Supreme Court properly granted defendants' motion seeking summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). "Defendants met their initial burden by submitting medical records and reports constituting 'persuasive evidence that plaintiff's alleged pain and injuries were related to . . . pre-existing condition[s]' . . . , and plaintiff[ ] failed to raise a triable issue of fact whether [her] alleged pain and injuries were causally related to the subject accident rather than those pre-existing conditions" (Spanos v Fanto, 63 AD3d 1665, 1666 [2009]).

Present---Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ.

20100319

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