SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

396 

CA 11-00950 

PRESENT: SMITH, J.P., CARNI, LINDLEY, AND SCONIERS, JJ.

 

 

ROBERT K. MONETTE AND SHARON M. MONETTE, 

PLAINTIFFS-RESPONDENTS, 

V MEMORANDUM AND ORDER

CHRISTINA L. TRUMMER, DAVID LEEDERMAN, JESSE L. 

BALL, DEFENDANTS-APPELLANTS, 

ET AL., DEFENDANTS. 

(APPEAL NO. 2.) 

 

BROWN & KELLY, LLP, BUFFALO (DONALD EPPERS OF COUNSEL), FOR

DEFENDANTS-APPELLANTS. 

DWYER, BLACK & LYLE, LLP, OLEAN (JEFFREY A. BLACK OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS. 

 

Appeal from a resettled order of the Supreme Court, Cattaraugus

County (Michael L. Nenno, A.J.), entered March 30, 2011 in a personal

injury action. The resettled order granted that part of the motion of

plaintiffs for partial summary judgment on the issue of serious

injury. 

It is hereby ORDERED that the resettled order so appealed from is

unanimously reversed on the law without costs and the motion is denied

insofar as plaintiffs sought summary judgment on the issue whether

plaintiff Robert K. Monette sustained a serious injury under the

significant limitation of use category within the meaning of Insurance

Law § 5102 (d). 

Memorandum: Plaintiffs commenced this action seeking damages for

injuries sustained by Robert K. Monette (plaintiff) when a parked

vehicle in which he was sitting was rear-ended by a vehicle that the

owner, Jesse L. Ball, had permitted David Leederman to operate, and

which was operated during the subject accident by Christina L. Trummer

(collectively, defendants). Plaintiffs moved for, inter alia, partial

summary judgment on the issues of “liability” and serious injury. We

note at the outset, however, that this Court has determined that the

issue of liability “includes the issue of ‘serious injury’ ” (Ruzycki

v Baker, 301 AD2d 48, 52). Although Supreme Court in an earlier

order, from which no appeal was taken, purported to grant the motion

insofar as it sought partial summary judgment on the issue of

“liability” with respect to Trummer and Jesse Ball but reserved

decision on the issue whether plaintiff sustained a serious injury

within the meaning of Insurance Law § 5102 (d), the court actually

granted the motion only insofar as it sought partial summary judgment
-2- 396 

CA 11-00950 

on the issue of negligence rather than liability (see id.). 

Defendants now appeal from a resettled order granting that part of the

motion for partial summary judgment on the issue of serious injury. 

We further note at the outset that, although plaintiffs alleged

several categories of serious injury in their bill of particulars,

their appellate brief alleges only that plaintiff sustained a

significant limitation of use of his cervical spine. Plaintiffs

therefore are deemed to have abandoned their contentions with respect

to the remaining categories of serious injury (see Ciesinski v Town of

Aurora, 202 AD2d 984, 984).

In support of that part of their motion on the issue of serious

injury, plaintiffs relied solely upon reports in which their medical

expert noted certain limitations in plaintiff’s range of cervical

motion, and opined that plaintiff sustained only a moderate orthopedic

disability and was able to perform his activities of daily living

without limitations. Thus, plaintiffs failed to meet their initial

burden on the issue of serious injury (see generally Zuckerman v City

of New York, 49 NY2d 557, 562). Plaintiff’s “own [physician]

concluded that [he] had only a minor limitation of movement in [his]

neck and back[,] and . . . a ‘minor, mild or slight limitation of use

[is] classified as insignificant within the meaning of the [no-fault]

statute’ ” (Gaddy v Eyler, 79 NY2d 955, 957; see Ray v Ficchi, 178

AD2d 988, 989, lv denied 80 NY2d 958; see generally Travis v Batchi,

18 NY3d 208, 219-220). Inasmuch as plaintiffs’ expert made “no

meaningful comparison so as to differentiate serious injuries from

mild or moderate ones, [his affidavit] was thus insufficient to

establish a significant limitation of use” (Peterson v Cellery, 93

AD3d 911, 913).

In any event, even assuming, arguendo, that plaintiffs met their

burden on the issue of serious injury, we conclude that “defendants

raised an issue of fact . . . by submitting the report of the

physician who examined plaintiff on their behalf, wherein he concluded

that plaintiff’s ‘complaints’ resulted from a preexisting condition

and were not causally related to the accident” (Covert v Samuel, 53

AD3d 1147, 1149; see Schwartz v Vukson, 67 AD3d 1398, 1400; see

generally Carrasco v Mendez, 4 NY3d 566, 579). 

Entered: June 15, 2012 Frances E. Cafarell

Clerk of the Court