Linnane v. Szabo

Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered January 22, 2013. The order granted the motion of plaintiff for partial summary judgment on negligence and on the issue of serious injury with respect to three of the categories set forth in the bill of particulars, and denied defendants’ cross motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from is unanimously modified on the law by denying plaintiffs motion and granting defendants’ cross motion in part and dismissing the complaint, as amplified by the bill of particulars, with respect to the claim that plaintiff sustained a serious injury to her left knee and as modified the order is affirmed without costs.

Addressing first the issue of serious injury, we conclude on the record before us that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d) in connection with the alleged injury to her left knee, inasmuch as the record establishes that she sustained only a minor, mild or slight limitation of her left knee (see Monette v Trummer [appeal No. 2], 96 AD3d 1547 , 1548-1549 [2012]). We therefore modify the order by denying plaintiffs motion with respect to the left knee and granting defendants’ cross motion in that regard. We further conclude with respect to both plaintiffs motion and defendants’ cross motion that “ [sufficient record evidence exists to raise a triable issue of fact whether plaintiff sustained a ‘serious injury’ ” under the permanent consequential limitation of use, significant limitation of use and 90/180-day categories with respect to the alleged injuries to plaintiffs right knee, left shoulder, and cervical and lumbar spine (see Tyson v Nazarian, 20 NY3d 967 , 968 [2012]), based upon the conflicting reports and affidavits of the parties’ medical experts (see Verkey v Hebard, 99 AD3d 1205 , 1206 [2012]). We therefore further modify the order accordingly.

We agree with defendants that the court erred in granting plaintiff’s motion with respect to the issue of negligence. Plaintiff submitted defendant’s deposition testimony, which related a nonnegligent explanation for the accident, and she thus failed to establish her entitlement to judgment on the issue of negligence (see generally Zuckerman v City of New York, 49 NY2d 557 , 561 [1980]). We therefore further modify the order