SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

720 

CA 11-02592 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ. 

 

ELEANOR M. SMITH, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

CRYSTAL M. CORNELL AND CHRISTINA CORNELL, 

DEFENDANTS-APPELLANTS.

 

THOMAS P. DURKIN, ROCHESTER (STEPHANIE A. MACK OF COUNSEL), FOR

DEFENDANTS-APPELLANTS. 

JONES & SKIVINGTON, GENESEO (PETER K. SKIVINGTON OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Livingston County (Ann

Marie Taddeo, J.), entered September 9, 2011 in a personal injury

action. The order denied the motion of defendants to dismiss the

complaint for failure to comply with the court’s scheduling order and

denied the motion of defendants for summary judgment. 

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 90/180-day category of serious injury within the

meaning of Insurance Law § 5102 (d) and as modified the order is

affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries she allegedly sustained when her vehicle was rear-ended by a

vehicle driven by defendant Crystal M. Cornell and owned by defendant

Christina Cornell. Although plaintiff failed to comply with the

scheduling order with respect to completing discovery and filing a

note of issue, the record establishes that plaintiff’s surgery for

injuries she allegedly sustained as a result of the accident was

delayed on several occasions for reasons outside of her control. 

Thus, in the absence of a “clear abuse of discretion,” we conclude

that Supreme Court properly denied that part of defendants’ motion

seeking to dismiss the complaint based on the failure of plaintiff to

comply with the scheduling order (Roswell Park Cancer Inst. Corp. v

Sodexo Am., LLC, 68 AD3d 1720, 1721; see Eaton v Hungerford, 79 AD3d

1627, 1628; cf. Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81; Arts4All,

Ltd. v Hancock, 54 AD3d 286, affd 12 NY3d 846, rearg denied 13 NY3d

762, cert denied ___ US ___, 130 S Ct 1301). 

With respect to that part of defendants’ motion seeking summary
-2- 720 

CA 11-02592 

judgment dismissing the complaint on the ground that plaintiff did not

sustain a serious injury pursuant to Insurance Law § 5102 (d), we

agree with defendants that they established their entitlement to

judgment as a matter of law with respect to the 90/180-day category

and that plaintiff failed to raise an issue of fact (see generally

Harrity v Leone, 93 AD3d 1204, 1205-1206). We therefore modify the

order accordingly. With respect to the significant limitation of use

category of serious injury, however, we conclude that, although

defendants met their initial burden, plaintiff raised an issue of fact

sufficient to defeat the motion concerning that category by presenting

the sworn reports of two physicians who performed independent medical

examinations of plaintiff on behalf of her insurance carrier. One of

the physicians determined that plaintiff had significant limited range

of motion of the cervical spine and shoulders and that 50% of the

limitation was attributable to the accident and the other 50% was

attributable to rheumatoid arthritis, which had been dormant prior to

the accident but became symptomatic as a result of the accident. Upon

a further examination approximately two years later, that physician

determined that 25% of plaintiff’s limitations, which had increased,

were attributable to the accident and that 75% were attributable to

the ongoing progression of the disease. The second physician agreed

with plaintiff’s treating orthopedic surgeon that surgery was

necessary to correct bilateral ulnar impaction syndrome, 100% of which

was attributable to the accident. We therefore conclude that

plaintiff presented objective medical evidence of her injuries and

resulting limitations sufficient to defeat the motion with respect to

the significant limitation of use category of serious injury (see id.

at 1206). 

Entered: June 8, 2012 Frances E. Cafarell

Clerk of the Court