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Grasso v. Finn

Supreme Court of New York, Fourth Department

July 5, 2013

VINCENT GRASSO AND MICHELLE GRASSO, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF KATLYN GRASSO, PLAINTIFFS-APPELLANTS,
v.
DAVID FINN, DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered April 24, 2012. The order, inter alia, granted the motion of defendant for summary judgment and dismissed the complaint.

WAYNE C. FELLE, P.C., WILLIAMSVILLE (WAYNE C. FELLE OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (LAUREN M. YANNUZZI OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.

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

Memorandum: Plaintiffs commenced this action to recover damages for injuries allegedly sustained by plaintiff Vincent Grasso (Vincent) and plaintiffs' infant daughter in a motor vehicle accident. Plaintiffs appeal from an order that, inter alia, granted defendant's motion for summary judgment dismissing the complaint on the ground that neither Vincent nor plaintiffs' daughter sustained a serious injury within the meaning of the four categories of Insurance Law § 5102 (d) set forth in plaintiffs' bill of particulars. We affirm. Specifically, with respect to the permanent loss of use category of serious injury, defendant established that neither Vincent nor plaintiffs' daughter sustained a "total loss of use" of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 N.Y.2d 295, 297). With respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury, defendant established that some of the injuries sustained by Vincent and plaintiffs' daughter had resolved (see generally Gaddy v Eyler, 79 N.Y.2d 955, 957-958), and that the remainder were merely mild, minor or slight (see generally Dufel v Green, 84 N.Y.2d 795, 798). Finally, with respect to the 90/180-day category, defendant established that neither Vincent nor plaintiffs' daughter was prevented "from performing substantially all of the material acts which constitute [his or her] usual and customary daily activities" for at least 90 out of the 180 days immediately following the accident (§ 5102 [d]; see generally Perl v Maher, 18 N.Y.3d 208, 220). In response, plaintiffs failed to raise a triable issue of fact with respect to any of those categories of serious injury (see generally Zuckerman v City of New York, 49 N.Y.2d 557, 562).

In light of our determination, we do not address plaintiffs' remaining contentions.


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