BOORMAN v. BOWHERS

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

Jeremy BOORMAN, Plaintiff-Appellant, v. Mary BOWHERS, Defendant-Respondent.

Decided: March 17, 2006

PRESENT:  SCUDDER, J.P., KEHOE, MARTOCHE, SMITH, AND PINE, JJ. Law Office of J. Michael Hayes, Buffalo (Lucille Dadd Robinson of Counsel), for Plaintiff-Appellant. Brown & Kelly, LLP, Buffalo (Renata Kowalczuk of Counsel), for Defendant-Respondent.

 Plaintiff commenced this action seeking damages for injuries he allegedly sustained when a vehicle driven by defendant crossed the center line of the highway and collided with the vehicle driven by plaintiff.   We agree with plaintiff that Supreme Court erred in denying that part of his motion seeking partial summary judgment on the threshold issue whether he sustained a serious injury in the motor vehicle accident.   A serious injury is defined in relevant part as a fracture (see Insurance Law § 5102[d];  Kolios v. Znack, 237 A.D.2d 333, 655 N.Y.S.2d 443;  Gonzalez v. Brayley, 199 A.D.2d 1013, 605 N.Y.S.2d 585).   Plaintiff met his burden on that part of the motion by submitting the sworn report of a medical expert establishing that plaintiff fractured the lateral talus in his right ankle as a result of the accident.   We thus modify the order accordingly.

 We further conclude, however, that the court properly denied that part of plaintiff's motion seeking partial summary judgment on the issues of negligence and proximate cause.   Although plaintiff met his initial burden on the motion by establishing that defendant's automobile crossed the center line of the highway and struck his vehicle (see Matte v. Hall, 20 A.D.3d 898, 899-900, 798 N.Y.S.2d 829;  Wasson v. Szafarski, 6 A.D.3d 1182, 776 N.Y.S.2d 423), defendant raised a triable issue of fact by submitting evidence that she was confronted with an unanticipated emergency situation when her vehicle suddenly slid out of control due to the icy and snowy condition of the roadway (see generally Kizis v. Nehring [Appeal No. 1], 27 A.D.3d 1106, 811 N.Y.S.2d 509, 2006 WL 674271 [Mar. 17, 2006];  Sossin v. Lewis, 9 A.D.3d 849, 850-851, 780 N.Y.S.2d 448, amended on other grounds 11 A.D.3d 1045, 782 N.Y.S.2d 390).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of the motion with respect to the issue of serious injury and as modified the order is affirmed without costs.

MEMORANDUM: