Aughtmon v Ward

Aughtmon v Ward 2015 NY Slip Op 08321 Decided on November 13, 2015 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.

Decided on November 13, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.
1263 CA 15-00642

[*1]JASON T. AUGHTMON, PLAINTIFF-APPELLANT,

v

RAYMOND T. WARD AND TAMMEY M. WARD, DEFENDANTS-RESPONDENTS.

STEVE BOYD, P.C., WILLIAMSVILLE (STEPHEN BOYD OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BROWN & KELLY, LLP, BUFFALO (KRISTEN B. DEGNAN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Niagara County (Frank Caruso, J.), entered August 5, 2014. The order, insofar as appealed from, denied plaintiff's motion for partial summary judgment.

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

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when a vehicle owned by defendant Tammey M. Ward and driven by defendant Raymond T. Ward collided with the vehicle driven by plaintiff. Following discovery, plaintiff moved for partial summary judgment on the issue whether he sustained a serious injury under the 90/180-day category of serious injury (see Insurance Law § 5102 [d]). Supreme Court properly denied the motion. Contrary to plaintiff's contention, he failed to meet his initial burden with respect to the 90/180-day category inasmuch as he failed to submit evidence establishing as a matter of law that he sustained "a medically determined injury or impairment of a non-permanent nature" that was causally related to the subject accident (id.; see Heatter v Dmowski, 115 AD3d 1325, 1326; see also Hartman-Jweid v Overbaugh, 70 AD3d 1399, 1400). In support of his motion, plaintiff submitted, inter alia, the affirmed report of a physician who examined plaintiff on behalf of defendants. The physician concluded, based on all of plaintiff's medical reports, as well as the imaging studies conducted since the date of the accident (cf. Quinones v Ksieniewicz, 80 AD3d 506, 506-507), that plaintiff had "extensive congenital variation and degenerative disease of the lumbar spine that was not caused by the accident of record" and that plaintiff's injuries were caused by those preexisting "anatomical elements." We thus conclude that plaintiff failed to meet his burden of establishing, as a matter of law, that his alleged pain and injuries were caused by the subject accident (see

generally Carrasco v Mendez, 4 NY3d 566, 580).

Entered: November 13, 2015

Frances E. Cafarell

Clerk of the Court