TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (CHRISTOPHER R.
POOLE OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
COSGROVE LAW FIRM, BUFFALO (EDWARD C. COSGROVE OF COUNSEL),
PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW,
from an order of the Supreme Court, Erie County (James H.
Dillon, J.), entered April 27, 2016. The order, insofar as
appealed from, denied the motion of defendants for summary
judgment dismissing the complaint.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Plaintiff commenced this action seeking to recover damages
for injuries that he sustained while he was a passenger in a
vehicle driven by his wife, third-party defendant. Defendant
Jason Austin was operating a dump truck with an attached
trailer, both of which were owned by defendant City of
Buffalo. Austin and third-party defendant were traveling in
the same direction on Eggert Road, when Austin turned right
and collided with the vehicle driven by third-party
defendant, which was to his right. On a prior appeal, this
Court affirmed an order denying third-party defendant's
motion for summary judgment dismissing the third-party
complaint (Jackson v City of Buffalo, 144 A.D.3d
1555, 1555 [4th Dept 2016]).
Court properly denied defendants' motion for summary
judgment dismissing the complaint. Defendants failed to meet
their initial burden of establishing that third-party
defendant was negligent as a matter of law and that her
negligence was the sole proximate cause of the accident
(see Russo v Pearson, 148 A.D.3d 1762, 1763 [4th
Dept 2017]; see generally Zuckerman v City of New
York, 49 N.Y.2d 557, 562 ). Although defendants
submitted the expert affidavit of an engineer who opined that
there is only one lane of travel in each direction on the
portion of Eggert Road where the accident occurred,
defendants also submitted the deposition testimony of
plaintiff, third-party defendant, and Austin, each of whom
testified that two cars can fit side-by-side each way on that
portion of road, "thereby functionally creating two
lanes in the same direction from a single lane"
(Jackson, 144 A.D.3d at 1556). Moreover, plaintiff
further testified at his deposition that the vehicle in which
he was riding was positioned on the right side of
Austin's dump truck, and that Austin did not activate his
turn signal before turning. We thus conclude that there are
issues of fact whether the road has one or two lanes of
travel in each direction and whether Austin made an improper
right turn from the left lane (see id.).
also failed to meet their initial burden of establishing that
plaintiff did not sustain a serious injury under the
90/180-day category of Insurance Law § 5102 (d) (see
Summers v Spada, 109 A.D.3d 1192, 1193 [4th Dept 2013]).
To qualify as serious injury under that category, "
there must be objective evidence of a medically determined
injury or impairment of a non-permanent nature... as well as
evidence that plaintiff's activities were curtailed to a
great extent' " (Crewe v Pisanova, 124
A.D.3d 1264, 1265 [4th Dept 2015]; see generally Toure v
Avis Rent A Car Sys., 98 N.Y.2d 345, 357 ). In
support of their motion, defendants submitted the transcript
of plaintiff's General Municipal Law § 50-h hearing,
which occurred 176 days after the accident. Plaintiff
testified at the hearing that he went to the hospital the day
after the accident, that he was then forbidden by his
physician from returning to work because he had two herniated
discs and a torn disc in his back, and that he had not yet
returned to work after the accident. Although defendants'
expert physician opined in his affirmed report that plaintiff
could continue working, that opinion was based upon an
examination of plaintiff that occurred over four years after
the accident, and thus the physician " did not examine
plaintiff during the relevant statutory period and did not
address plaintiff's condition during the relevant
period' " (Crewe, 124 A.D.3d at 1265-1266).
respect to the permanent consequential limitation of use and
significant limitation of use categories of serious injury,
even assuming, arguendo, that defendants met their initial
burden of establishing their entitlement to judgment as a
matter of law, we conclude that plaintiff raised an issue of
fact by submitting the expert opinion of his treating
chiropractor, "who relied upon objective proof of
plaintiff's injury, provided quantifications of
plaintiff's loss of range of motion along with
qualitative assessments of plaintiff's condition, and
concluded that plaintiff's injury was significant,
permanent, and causally related to the accident' "