YOONESSI v. GIVENS (2007)

In this action commenced by plaintiffs to recover damages for injuries allegedly sustained by Mahmood Yoonessi (plaintiff) in an automobile accident, defendant appeals from an order denying her motion for summary judgment seeking dismissal of the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  We note at the outset that plaintiffs have abandoned the fracture and permanent loss of use categories of serious injury set forth in their bill of particulars (see Parkhill v. Cleary, 305 A.D.2d 1088, 1090, 759 N.Y.S.2d 262;  Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745), and we therefore modify the order accordingly (see Robinson v. White, 6 A.D.3d 1059, 775 N.Y.S.2d 618).

 Supreme Court properly denied defendant's motion insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff sustained a serious injury to his cervical spine under the permanent consequential limitation of use and significant limitation of use categories of serious injury.   Although defendant met her burden by submitting competent medical evidence establishing that plaintiff did not sustain a serious injury under those categories (see Chunn v. Carman, 8 A.D.3d 745, 746, 777 N.Y.S.2d 572;  Dongelewic v. Marcus, 6 A.D.3d 943, 943-944, 774 N.Y.S.2d 841;  Zeigler v. Ramadhan, 5 A.D.3d 1080, 1082, 774 N.Y.S.2d 211), plaintiffs raised triable issues of fact with respect to those categories by presenting the requisite “competent medical evidence based upon objective medical findings and diagnostic tests” (Barbagallo v. Quackenbush, 271 A.D.2d 724, 725, 706 N.Y.S.2d 201;  see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350-351, 746 N.Y.S.2d 865, 774 N.E.2d 1197).   Moreover, although defendant established that plaintiff's condition was preexisting and was not exacerbated by the accident (see Franchini v. Palmieri, 1 N.Y.3d 536, 537, 775 N.Y.S.2d 232, 807 N.E.2d 282;  Shaw v. Looking Glass Assoc., LP, 8 A.D.3d 100, 102-103, 779 N.Y.S.2d 7), plaintiffs raised a triable issue of fact with respect to causation (see Chunn, 8 A.D.3d at 746-747, 777 N.Y.S.2d 572;  Millick v. Whatman, 253 A.D.2d 996, 678 N.Y.S.2d 168).

 We conclude, however, that the court erred in denying defendant's motion insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff sustained a serious injury under the 90/ 180 category, and we therefore further modify the order accordingly.   Defendant met her burden by establishing that plaintiff was not limited or impaired in carrying out substantially all of his customary daily activities, but rather was able to continue functioning in a full and unrestricted manner following the accident (see Thompson v. Abbasi, 15 A.D.3d 95, 96-97, 788 N.Y.S.2d 48;  Chunn, 8 A.D.3d at 746, 777 N.Y.S.2d 572;  Byrnes v. Hertz Corp., 278 A.D.2d 867, 718 N.Y.S.2d 754), and plaintiffs failed to raise a triable issue of fact (see Stevens v. Homiak Transp., Inc., 21 A.D.3d 300, 301, 800 N.Y.S.2d 157, lv. denied 6 N.Y.3d 701, 810 N.Y.S.2d 415, 843 N.E.2d 1155;  Oribamie v. Santiago, 12 A.D.3d 250, 784 N.Y.S.2d 556, lv. denied 4 N.Y.3d 711, 798 N.Y.S.2d 724, 831 N.E.2d 969;  Byrnes, 278 A.D.2d 867, 718 N.Y.S.2d 754).

It is hereby ORDERED that the order so appealed from be and the same hereby 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 fracture, permanent loss of use of a body organ, member, function or system, and 90/180 categories of serious injury within the meaning of Insurance Law § 5102(d) and as modified the order is affirmed without costs.

MEMORANDUM: