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Walter P. Malesa v. Kristi M. Burg

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 26, 2013

WALTER P. MALESA,
PLAINTIFF-RESPONDENT,
v.
KRISTI M. BURG, WHEELS LT., TAKEDA AMERICA HOLDINGS, INC.,
ALSO KNOWN AS TAKEDA AMERICA, INC., AND
TAKEDA PHARMACEUTICALS AMERICA, INC.,
ALSO KNOWN AS TAKEDA PHARMACEUTICALS AMERICA SALES CO.,
DEFENDANTS-APPELLANTS.

Appeal from an order of the Supreme Court, Erie County (Michael L. D'Amico, A.J.), entered January 5, 2012.

Malesa v Burg

Appellate Division, Fourth Department

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 Official Reports.

Released on April 26, 2013

PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.

The order, insofar as appealed from, denied the motion of defendants for summary judgment dismissing the complaint.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the complaint, as amplified by the bill of particulars, with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this personal injury action seeking damages for injuries that he sustained as a result of an automobile accident. Defendants moved 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 Supreme Court denied their motion. In our view, defendants established their entitlement to summary judgment dismissing the complaint, as amplified by the bill of particulars, with respect to two of the three categories of serious injury allegedly sustained by plaintiff. We therefore modify the order accordingly. We conclude that defendants established that plaintiff did not sustain a permanent consequential limitation of use, and plaintiff failed to raise an issue of fact whether the injury was both permanent and consequential, i.e., important or significant (see Kordana v Pomellito, 121 AD2d 783, 784, appeal dismissed 68 NY2d 848). We further conclude that defendants established as a matter of law that plaintiff did not sustain a significant limitation of use and that plaintiff failed to raise an issue of fact with respect thereto (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Indeed, the evidence submitted by plaintiff in opposition to the motion does not provide " either a quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones' " (Secore v Allen, 27 AD3d 825, 827; see Scott v Aponte, 49 AD3d 1131, 1134). Even assuming, arguendo, that the injuries sustained by plaintiff were caused by the accident, we conclude that plaintiff's proof "fell short of demonstrating that [the injuries] constituted a significant limitation" (Scott, 49 AD3d at 1134). We agree with the court, however, that there is an issue of fact whether plaintiff sustained a serious injury within the meaning of the 90/180-day category (see Rienzo v La Greco, 11 AD3d 1038; DiNunzio v County of Suffolk, 256 AD2d 498, 498, lv denied 93 NY2d 812). Entered: April 26, 2013 Frances E. Cafarell Clerk of the Court

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