BURNS v. McCABE

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

F. O'Brian BURNS and Kathy Burns, as Parents and Natural Guardians of Meghan Burns, an Infant, Plaintiffs-Appellants, v. Patricia McCABE, Shawn McCabe and Ford Motor Credit Company, Doing Business as Ford Credit Titling Trust, Defendants-Respondents.

Decided: April 29, 2005

PRESENT:  SCUDDER, J.P., KEHOE, MARTOCHE, SMITH, AND HAYES, JJ. Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiffs-Appellants. Sugarman Law Firm, LLP, Syracuse (Sherry R. Bruce of Counsel), for Defendants-Respondents.

 Plaintiffs commenced this action seeking damages for injuries allegedly sustained by their daughter, Meghan, resulting from an automobile accident in October 2001.   Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint on the ground that Meghan did not sustain a serious injury.   With respect to the 90/180 category of serious injury, defendants established that Meghan's activities were not curtailed to a great extent (see generally Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088), and plaintiffs failed to raise a triable issue of fact.   The evidence established that Meghan returned to school a week after the accident and missed only five weeks of work at her part-time job (see Feeney v. Klotz, 309 A.D.2d 782, 765 N.Y.S.2d 639;  Parkhill v. Cleary, 305 A.D.2d 1088, 1090, 759 N.Y.S.2d 262).   Although there was evidence that Meghan could not participate in some activities, such as gym class and dancing, that is insufficient to show that she “was unable to perform substantially all of the material acts that constituted her usual and customary daily activities” (Parkhill, 305 A.D.2d at 1090, 759 N.Y.S.2d 262;  see Feeney, 309 A.D.2d at 782-783, 765 N.Y.S.2d 639).

 With respect to the permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system categories of serious injury, defendants again met their initial burden and plaintiffs failed to raise a triable issue of fact.   Defendants submitted the report of their independent medical examiner, who found no objective evidence of Meghan's subjective complaints of low back discomfort.   In opposition to the motion, plaintiffs submitted the affidavit and reports of Meghan's chiropractor, who first examined Meghan on September 13, 2003.   The court properly granted defendants' cross motion to preclude that evidence.   Plaintiffs did not turn over those reports to defendants until later than 30 days prior to trial, in contravention of 22 NYCRR 202.17(g).  Plaintiffs did not make any showing of good cause to allow that evidence at trial “in the interests of justice” (22 NYCRR 202.17[h] ), and thus the court did not abuse its discretion in precluding that evidence, not just at trial, but also in opposition to defendants' motion for summary judgment.

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

MEMORANDUM: