SCHWARTZ v. VUKSON

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

Jennifer SCHWARTZ, Plaintiff-Respondent, v. Wayne D. VUKSON, as Executor of the estate of Michael J. Vukson, deceased, Defendant-Appellant.

Decided: November 13, 2009

PRESENT:  MARTOCHE, J.P., SMITH, PERADOTTO, GREEN, AND PINE, JJ. Baxter Smith & Shapiro, P.C., West Seneca (Louis B. Dingeldey, Jr., of Counsel), for Defendant-Appellant. Bergen & Schiffmacher, LLP, Buffalo (Joseph R. Bergen of Counsel), for Plaintiff-Respondent.

Plaintiff commenced this action to recover damages for injuries she allegedly sustained when the vehicle driven by her collided with the vehicle driven by defendant's decedent.   The complaint, as amplified by the bill of particulars, alleges that plaintiff sustained a serious injury under four specified categories of serious injury (see Insurance Law § 5102[d] ).  Plaintiff thereafter moved for partial summary judgment on liability, specifically addressing the issues of negligence and serious injury (see generally Ruzycki v. Baker, 301 A.D.2d 48, 51-52, 750 N.Y.S.2d 680).   In her motion, however, plaintiff addressed only two of the four categories of serious injury set forth in the bill of particulars, i.e., the permanent consequential limitation of use and the significant limitation of use categories of serious injury and, in granting the motion, Supreme Court did not address either of the two statutory categories.

 We agree with defendant that the court erred in granting that part of plaintiff's motion with respect to the issue of negligence.   Plaintiff met her initial burden with respect to that issue by submitting her deposition testimony in which she testified that the accident occurred when decedent backed his vehicle out of his son's driveway into the street and in front of her vehicle, which she was operating at a reasonable speed in the proper lane of travel.   Plaintiff was “ ‘entitled to anticipate that other vehicles [would] obey the traffic laws that require them to yield’ ” (Rak v. Kossakowski, 24 A.D.3d 1191, 1192, 807 N.Y.S.2d 500).   Defendant raised a triable issue of fact, however, by submitting an affidavit in which he stated that decedent's vehicle never left the driveway, and that the tire tracks left by plaintiff's vehicle prior to the accident were on the shoulder of the street, outside the proper lane of travel.   Contrary to plaintiff's contention, the questioning of defendant during his deposition did not concern the subject matter addressed in his affidavit.   Thus, under the circumstances of this case, we conclude that the statements of defendant in his affidavit do not contradict his deposition testimony, and the submission of defendant's affidavit in opposition to the motion is not merely an attempt to raise a feigned issue of fact (cf. Shpizel v. Reo Realty & Constr. Co., 288 A.D.2d 291, 733 N.Y.S.2d 196;  see generally Hernandez v. Bethel United Methodist Church of N.Y., 49 A.D.3d 251, 253, 853 N.Y.S.2d 305).

 We also agree with defendant that the court erred in granting that part of plaintiff's motion with respect to serious injury under the permanent consequential limitation and significant limitation of use categories of serious injury.   Although plaintiff established that she sustained a herniated disc and has a significant limitation of use of her spine, on the record before us there is an issue of fact whether plaintiff's injuries were the result of a preexisting degenerative condition and plaintiff's morbid obesity (see generally Covert v. Samuel, 53 A.D.3d 1147, 1148-1149, 862 N.Y.S.2d 688;  Chmiel v. Figueroa, 53 A.D.3d 1092, 1093, 863 N.Y.S.2d 316).   Finally, there is a further issue of fact whether plaintiff's injuries are fully healed (see generally Dann v. Yeh, 55 A.D.3d 1439, 1440, 865 N.Y.S.2d 472;  Frizzell v. Giannetti, 34 A.D.3d 1202, 1203, 824 N.Y.S.2d 531;  Sandt v. New York Racing Assn., 289 A.D.2d 218, 219, 734 N.Y.S.2d 183).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.

MEMORANDUM: