CLARK v. PERRY

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

Mary CLARK, Plaintiff-Appellant, v. Kenneth F. PERRY, Defendant-Respondent.

Decided: September 30, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, SMITH, PINE, AND HAYES, JJ. Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff-Appellant. Hurwitz & Fine, P.C., Buffalo (Jody E. Briandi of Counsel), for Defendant-Respondent.

 Plaintiff commenced this action to recover damages for injuries she sustained when the vehicle in which she was a passenger was rear-ended by a vehicle driven by defendant.   Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury in the accident within the meaning of Insurance Law § 5102(d). Defendant met his initial burden by submitting medical records and the report of the physician who conducted a medical examination on defendant's behalf establishing that plaintiff's alleged injuries sustained in the accident were preexisting.   According to the report of that physician, although “the accident [at issue] may have aggr[a]vated chronic preexistent pain symptoms, it did not produce any significant new/novel symptoms” and “[t]here is no medical evidence of any additional physical disability associated with the injuries sustained” in the accident at issue.   Because defendant submitted “persuasive evidence that plaintiff's alleged pain and injuries were related to a preexisting condition, plaintiff had the burden to come forward with evidence addressing defendant's claimed lack of causation” (Pommells v. Perez, 4 N.Y.3d 566, 580, 797 N.Y.S.2d 380, 830 N.E.2d 278).   Plaintiff failed to meet that burden and thus, “in the absence of objective evidence establishing the aggravation as opposed to the underlying condition,” the court properly granted defendant's motion (Dabiere v. Yager, 297 A.D.2d 831, 832, 748 N.Y.S.2d 38, lv. denied 99 N.Y.2d 503, 753 N.Y.S.2d 806, 783 N.E.2d 896;  see Franchini v. Palmieri, 307 A.D.2d 1056, 1058, 763 N.Y.S.2d 381, affd. 1 N.Y.3d 536, 775 N.Y.S.2d 232, 807 N.E.2d 282).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: