SNYDER v. DAW

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

Amber N. SNYDER, Plaintiff–Respondent, v. Tracey L. DAW and Andrew C. Daw, Defendants–Appellants.

660

Decided: August 22, 2019

PRESENT: SMITH, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ. LAW OFFICES OF DESTIN C. SANTACROSE, BUFFALO (BARNEY BILELLO OF COUNSEL), FOR DEFENDANTS–APPELLANTS. WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: Plaintiff commenced this action seeking to recover damages for injuries that she sustained when a vehicle driven by defendant Andrew C. Daw and owned by defendant Tracey L. Daw struck a vehicle in which plaintiff was a passenger. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury under the categories alleged by her, i.e., the permanent consequential limitation of use, significant limitation of use, and 90/180–day categories (see Insurance Law § 5102[d]). Supreme Court granted that part of defendants' motion with respect to the 90/180–day category. Defendants appeal, and we affirm.

We reject defendants' contention that the court erred in denying their motion with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury. Defendants submitted, in support of their motion, plaintiff's deposition testimony, in which she testified, inter alia, that she lost consciousness during the accident and thereafter began to experience frequent, severe headaches, occasionally accompanied by double vision and lightheadedness, in addition to memory loss, which had persisted for more than two years. Defendants also submitted plaintiff's hospital records, which established that a CT scan performed at the hospital after the accident revealed “[h]yperattenuation within the posterior left frontal lobe” of plaintiff's brain. Due to the treating doctor's concern “for parenchymal hemorrhage,” plaintiff was transferred to another hospital so that she could receive a higher level of care. Plaintiff's imaging studies at the second hospital revealed “a small amount of traumatic subarachnoid blood in the left frontal [lobe] area.” Thus, contrary to defendants' contention, her claims of serious injury are not premised entirely on “ ‘subjective complaints of pain ․ devoid of any independent objective medical evidence of a serious injury’ ” (O'Brien v. Bainbridge, 89 A.D.3d 1511, 1512, 932 N.Y.S.2d 785 [4th Dept. 2011]). Furthermore, defendants also submitted a report from plaintiff's primary care physician indicating that plaintiff had complained of frequent headaches accompanied by double vision since the accident and that, following an examination, plaintiff's physician treated plaintiff for a concussion. We therefore conclude that defendants' own submissions raised questions of fact and that, consequently, defendants failed to meet their initial burden of “ ‘presenting competent evidence establishing that the injuries do not meet the [serious injury] threshold’ ” (Goodwin v. Walter, 165 A.D.3d 1596, 1596, 85 N.Y.S.3d 312 [4th Dept. 2018]).

We also reject defendants' contention that they met their initial burden of establishing that plaintiff's injuries did not limit her in any significant or consequential manner. Although plaintiff testified at her deposition that she was able to perform her job as a cashier without restriction, plaintiff also testified that she was unable to sit through college classes and had continued to experience “[v]ery bad migraines” that lingered for hours and caused dizziness and lightheadedness (cf. Licari v. Elliott, 57 N.Y.2d 230, 238–239, 455 N.Y.S.2d 570, 441 N.E.2d 1088 [1982]). In addition, as noted above, plaintiff testified that she experienced memory loss. It is well settled that “postconcussion syndrome, posttraumatic headaches, and cognitive dysfunction” as a result of a collision can constitute a significant limitation (Armprester v. Erickson, 148 A.D.3d 1645, 1645, 50 N.Y.S.3d 719 [4th Dept. 2017]; see Jackson v. Mungo One, 6 A.D.3d 236, 236, 774 N.Y.S.2d 327 [1st Dept. 2004]). Moreover, plaintiff testified that she continued to suffer from her accident-related injuries two years after the accident. Thus, we conclude that an issue of fact exists whether plaintiff's injuries are permanent (see Courtney v. Hebeler, 129 A.D.3d 1627, 1628, 14 N.Y.S.3d 599 [4th Dept. 2015]; Hawkins v. Foshee, 245 A.D.2d 1091, 1091, 666 N.Y.S.2d 88 [4th Dept. 1997]). Inasmuch as defendants “failed to meet their initial burden” on their motion for summary judgment, “we do not consider the sufficiency of plaintiff['s] opposing papers” (Gonyou v. McLaughlin, 82 A.D.3d 1626, 1627, 918 N.Y.S.2d 922 [4th Dept. 2011]; see Goodwin, 165 A.D.3d at 1596, 85 N.Y.S.3d 312).