Fanti v McLaren

Fanti v McLaren 2013 NY Slip Op 06489 Released on October 4, 2013 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 October 4, 2013
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., SCONIERS, VALENTINO, AND WHALEN, JJ.
1017 CA 13-00389

[*1]ANTHONY P. FANTI AND DEBORAH FANTI, PLAINTIFFS-RESPONDENTS,

v

RYAN L. MCLAREN AND STACY MCLAREN, DEFENDANTS-APPELLANTS.


Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered October 23, 2012. The order, insofar as appealed from, denied the motion of defendants for summary judgment dismissing the complaint.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (MICHAEL J. CHMIEL OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
FREID AND KLAWON, WILLIAMSVILLE (WAYNE I. FREID OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


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 loss of use category of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

Memorandum: In this action commenced by plaintiffs to recover damages for injuries allegedly sustained by Anthony P. Fanti (plaintiff) in an automobile accident, defendants appeal from an order denying their 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). We conclude that Supreme Court properly denied the motion with respect to the permanent consequential limitation of use, significant limitation of use, and 90/180-day categories of serious injury. "It is well settled that the aggravation of an asymptomatic condition can constitute a serious injury" (Verkey v Hebard, 99 AD3d 1205, 1206). Here, defendants' own submissions, including plaintiff's deposition testimony, raise triable issues of fact whether, under those three categories, "the accident aggravated and exacerbated plaintiff's pre-existing, asymptomatic degenerative disease in his [lumbosacral] spine" (Austin v Rent A Ctr. E., Inc., 90 AD3d 1542, 1543; see Hint v Vaugh, 100 AD3d 1519, 1520). Finally, plaintiffs have abandoned the permanent loss of use category of serious injury alleged in their bill of particulars (see Austin, 90 AD3d at 1543; see also Yoonessi v Givens, 39 AD3d 1164, 1165), and we therefore modify the order accordingly.
Entered: October 4, 2013
Frances E. Cafarell
Clerk of the Court