HEPPNER v. COUNTY OF NIAGARA

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Supreme Court, Appellate Division, Fourth Department, New York.

Gary D. HEPPNER and Judy L. Heppner, Plaintiffs-Appellants-Respondents, v. COUNTY OF NIAGARA and Donald H. Piedmont, Defendants-Respondents-Appellants.

Decided: March 18, 2005

PRESENT:  GREEN, J.P., SCUDDER, GORSKI, MARTOCHE, AND PINE, JJ. Hodgson Russ LLP, Buffalo (Patrick J. Long of Counsel), for Plaintiffs-Appellants-Respondents. O'Shea, Reynolds & Cummings, Buffalo (C. DeForest Cummings, Jr., of Counsel), for Defendants-Respondents-Appellants.

Plaintiffs appeal and defendants cross-appeal from an order granting that part of plaintiffs' motion for partial summary judgment on the issue of negligence and denying defendants' cross motion for summary judgment dismissing the complaint and those parts of plaintiffs' motion that sought partial summary judgment on the issues of serious injury and proximate cause.   At oral argument, defendants withdrew their cross appeal from the order insofar as it granted that part of plaintiffs' motion with respect to negligence.

Judy L. Heppner (plaintiff) was injured on March 17, 1993 as a result of a collision with a vehicle driven by defendant Donald H. Piedmont, a Niagara County Sheriff's Deputy.   Plaintiffs established their entitlement to partial summary judgment on the issues of serious injury and proximate cause by submitting the affidavit of plaintiff as well as numerous medical records and the affidavits of several of her treating physicians who averred that her injuries were caused by the accident.   In response, defendants submitted affidavits of their experts concluding that plaintiff suffered no injuries in the motor vehicle accident of March 17, 1993.   Defendants' submissions are sufficient to raise questions of fact on the issues of serious injury and proximate cause.

It is hereby ORDERED that said cross appeal from the order insofar as it granted that part of the motion with respect to negligence be and the same hereby is unanimously dismissed and the order is affirmed without costs.

MEMORANDUM: