FORTINO v. FAYETTEVILLE MANLIUS CENTRAL SCHOOL DISTRICT

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

Lisa FORTINO and James Fortino, Plaintiffs-Appellants-Respondents, v. FAYETTEVILLE-MANLIUS CENTRAL SCHOOL DISTRICT, Fayetteville-Manlius Superintendent of Schools, Fayetteville-Manlius Board of Education, Fayetteville-Manlius Central School Transportation Department, Fayetteville-Manlius Central School District Bus Service and F. Beecher Graham, Defendants-Respondents-Appellants.

Decided: March 18, 2005

PRESENT:  HURLBUTT, J.P., SMITH, PINE, LAWTON, AND HAYES, JJ. Nicholas, Perot, Smith, Welch & Smith, Liverpool (Michael J. Welch of Counsel), for Plaintiffs-Appellants-Respondents. Meggesto, Crossett & Valerino, LLP, Syracuse (Heather R. La Dieu of Counsel), for Defendants-Respondents-Appellants.

Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Lisa Fortino (plaintiff) when the vehicle that she was driving was struck by a school bus driven by defendant F. Beecher Graham.   Supreme Court erred in determining as a matter of law that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) under the 90/180 category of serious injury.   Plaintiff submitted objective medical evidence establishing that she sustained “a medically determined injury or impairment of a non-permanent nature” that prevented her from performing substantially all of the material acts that constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (Insurance Law § 5102[d];  see generally Nitti v. Clerrico, 98 N.Y.2d 345, 357-358, 746 N.Y.S.2d 865, 774 N.E.2d 1197).   The court determined that the physical therapy records of plaintiff “reveal that she was planting flowers as early as March 1, 2001, was doing yard work on May 20, 2001, swimming on June 19, 2001 and housecleaning on June 27, 2001.”   However, 90 days from the date of the accident is June 11, 2001.   Consequently, any activity on June 19 and 27, 2001 cannot defeat a claim under the 90/180 category of serious injury.   The physical therapy notes regarding the gardening and yard work reveal that the activities caused plaintiff increased pain, and thus are insufficient to establish as a matter of law that plaintiff was able to perform substantially all of her daily activities (see Slisz v. Miga [Appeal No. 1], 15 A.D.3d 953, 789 N.Y.S.2d 775).   We therefore modify the order by denying that part of defendants' motion with respect to the 90/180 category of serious injury within the meaning of Insurance Law § 5102(d) and reinstating the complaint with respect to that category of serious injury.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of the motion with respect to the 90/180 category of serious injury within the meaning of Insurance Law § 5102(d) and reinstating the complaint with respect to that category of serious injury and as modified the order is affirmed without costs.

MEMORANDUM: