SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

216 

CA 15-01316 

PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND SCUDDER, JJ.

 

 

MARY L. BARRON, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

NORTHTOWN WORLD AUTO, NORTHTOWN WORLD AUTO 

CENTRE, L.L.C., AND GEORGE H. BALDUF, 

DEFENDANTS-RESPONDENTS. 

 

WILLIAM MATTAR P.C., WILLIAMSVILLE (MATTHEW J. KAISER OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JOSHUA P. RUBIN OF

COUNSEL), FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Erie County (Timothy

J. Drury, J.), entered January 28, 2015. The order, insofar as

appealed from, granted those parts of the motion of defendants seeking

summary judgment dismissing the complaint insofar as it alleged, as

amplified by the bill of particulars, that plaintiff sustained a

serious injury under the permanent consequential limitation of use and

significant limitation of use categories, and considered plaintiff’s

cross motion for partial summary judgment on the issue of negligence

to be moot. 

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs, defendants’ motion is

denied in part, the complaint, as amplified by the bill of

particulars, is reinstated with respect to the permanent consequential

limitation of use and significant limitation of use categories of

serious injury within the meaning of Insurance Law § 5102 (d), and

plaintiff’s cross motion is granted. 

Memorandum: In this action to recover damages for injuries

sustained as the result of a rear-end motor vehicle collision,

plaintiff appeals from an order granting the motion of defendants for

summary judgment dismissing the complaint and denying plaintiff’s

cross motion for partial summary judgment on the issue of defendant

driver’s negligence. At the outset, we note that plaintiff contends

only that she sustained a permanent consequential limitation of use

and a significant limitation of use of her left shoulder, thereby

abandoning her other particularized claims of serious injury (see

Austin v Rent A Ctr. E., Inc., 90 AD3d 1542, 1543; Yoonessi v Givens,

39 AD3d 1164, 1165; see also Ciesinski v Town of Aurora, 202 AD2d 984,

984). We agree with plaintiff that Supreme Court erred in granting
-2- 216 

CA 15-01316 

defendants’ motion insofar as the complaint, as amplified by the bill

of particulars, alleges that plaintiff sustained a serious injury

within the meaning of those two categories. Even assuming, arguendo,

that defendants met their initial burden on the motion with respect to

those categories (see Virella v Allstate Home Care of Buffalo, Inc.,

59 AD3d 1100, 1101; Sconiers v Barber, 51 AD3d 1403, 1404), we

nonetheless conclude that plaintiff raised triable issues of fact

concerning the nature, extent and cause of the alleged pain and

limitations in her shoulder, to which she underwent surgery within

about three months of the accident (see Kellerson v Asis, 81 AD3d

1437, 1437-1438; Parkhill v Cleary, 305 AD2d 1088, 1088-1089).

We further conclude that the court erred in denying plaintiff’s

cross motion for partial summary judgment on the issue of defendant

driver’s negligence in operating his vehicle at the time of the

accident, which occurred in heavy traffic on the approach to a New

York State Thruway toll barrier. It is well established that a 

“ ‘rear-end collision with a stopped or stopping vehicle creates a

prima facie case of negligence with respect to the operator of the

moving vehicle, and imposes a duty on the operator of the moving

vehicle to come forward with an adequate, [nonnegligent] explanation

for the accident’ ” (Borowski v Ptak, 107 AD3d 1498, 1498; see Kabir v

County of Monroe, 68 AD3d 1628, 1633-1634, affd 16 NY3d 217). Here,

plaintiff met her burden of demonstrating that defendant driver was

negligent and that such negligence was a proximate cause of the

accident. Defendant driver, in admitting that he drove a vehicle with

a missing brake pedal pad, and claiming that his foot slipped onto the

accelerator when he attempted to brake, failed to present a

nonnegligent explanation and thus failed to raise a triable issue of

fact sufficient to defeat the cross motion (see Kabir, 68 AD3d at

1633-1634). 

Entered: March 25, 2016 Frances E. Cafarell

Clerk of the Court