Faso v Fallato

Faso v Fallato 2007 NY Slip Op 03466 [39 AD3d 1234] April 20, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

Angelino Faso, Respondent, v James Fallato et al., Defendants, and Peter C. Fleck, Jr., Appellant.

—[*1] Law Office of Epstein & Hartford, Williamsville (Jennifer V. Schiffmacher of counsel), for defendant-appellant.

Miserendino, Celniker, Seegert & Estoff, P.C., Buffalo (Philip Celniker of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered July 24, 2006 in a personal injury action. The order denied the motion of defendant Peter C. Fleck, Jr. for summary judgment dismissing the amended complaint against him.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the amended complaint against defendant Peter C. Fleck, Jr. is dismissed.

Memorandum: Plaintiff commenced this action seeking damages for injuries sustained in two motor vehicle accidents. Peter C. Fleck, Jr. (defendant), who was involved in the second accident, moved for summary judgment dismissing the amended complaint against him on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Supreme Court erred in denying defendant's motion. Defendant met his initial burden on the motion with respect to each of the four categories of serious injury alleged by plaintiff by submitting, inter alia, the deposition testimony of plaintiff in which she stated that her "complaints after the first accident stayed the same" after the second accident and the affirmation of an orthopedic surgeon who found no injury as the result of the second accident and no aggravation of any preexisting injury as the result of that accident. Defendant thus established that plaintiff did not sustain a serious injury that was causally related to the second accident (see McNamara v Wood, 19 AD3d 921, 922-923 [2005]). In response, plaintiff failed to submit "competent medical evidence based upon objective medical findings and tests to support [the] claim of serious injury and to connect the condition to the [second] accident" and thus failed to raise a triable issue of fact to defeat the motion (Blanchard v Wilcox, 283 AD2d 821, 822 [2001]). Present—Gorski, J.P., Lunn, Fahey, Green and Pine, JJ.