HOUSE v. THORNTON

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

Gail A. HOUSE, Plaintiff-Respondent, v. David THORNTON and Frontier Communications of Seneca-Gorham, Inc., Defendants-Appellants.

Decided: September 22, 2006

PRESENT:  PIGOTT, JR., P.J., SCUDDER, KEHOE, SMITH, AND GREEN, JJ. Hiscock & Barclay, LLP, Rochester (Gary H. Abelson of Counsel), for Defendants-Appellants. Faraci Lange, LLP, Rochester (Laurie A. Donofrio of Counsel), for Plaintiff-Respondent.

Plaintiff commenced this action seeking to recover damages for injuries she sustained when the vehicle driven by plaintiff was rear-ended by a vehicle operated by defendant David Thornton and owned by defendant Frontier Communications of Seneca-Gorham, Inc. Defendants contend that Supreme Court erred in denying their motion for summary judgment dismissing the complaint, as amplified by the bill of particulars, on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury.   We reject that contention.   Although defendants met their initial burden on the motion by submitting the affirmation of their examining physician stating that there were no objective physical findings to substantiate any significant or permanent degree of disability, plaintiff raised triable issues of fact to defeat the motion by submitting the affidavit of her treating physician, who relied on objective evidence in providing a qualitative assessment of plaintiff's condition and concluded that plaintiff sustained injuries within the meaning of those categories (see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 352-353, 746 N.Y.S.2d 865, 774 N.E.2d 1197).

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

MEMORANDUM: