BONNER v. HILL

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

Brian T. BONNER, Appellant, v. Daniel J. HILL, Respondent.

Decided: February 24, 2003

FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, ROBERT W. SCHMIDT and STEPHEN G. CRANE, JJ. Hankin, Hanig, Stall, Caplicki, Redl & Curtin, LLP, Poughkeepsie, NY, (Lynn M. Smookler of counsel), for appellant. Maynard, O'Connor, Smith & Catalinotto, LLP, Albany, NY, (Michael T. Snyder of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated April 18, 2002, as, in effect, granted the defendant's cross motion for summary judgment dismissing the complaint except with respect to the plaintiff's claims of serious injury related to the alleged fracture of the transverse process of the vertebrae at L5.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The medical evidence submitted by the defendant in support of his cross motion for summary judgment made out a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In opposition to the cross motion, the plaintiff raised a triable issue of fact through the affidavit of an orthopedic surgeon, Dr. Russell G. Tigges, that, as a result of the accident, the plaintiff sustained a serious injury in the form of a fracture of the transverse process of the vertebrae at L5 (see Insurance Law § 5102[d];  Bebry v. E.J. Farkas Galindez, 276 A.D.2d 656, 714 N.Y.S.2d 734).

By establishing that any one of several injuries sustained in an accident is a serious injury within the meaning of Insurance Law § 5102(d), a plaintiff is entitled to seek recovery for all injuries incurred as a result of the accident (see Bebry v. Farkas-Galindez, supra;  O'Neill v. O'Neill, 261 A.D.2d 459, 460, 690 N.Y.S.2d 277;  Preston v. Young, 239 A.D.2d 729, 731, 657 N.Y.S.2d 499 n;  Kelley v. Balasco, 226 A.D.2d 880, 640 N.Y.S.2d 652;  Prieston v. Massaro, 107 A.D.2d 742, 743-744, 484 N.Y.S.2d 104).   However, the plaintiff failed to present evidence that any of his other injuries were causally related to the accident (see Har-Sinay v. Accessible Windows & Glass & Mirror Corp., 272 A.D.2d 575, 708 N.Y.S.2d 634;  Fallon v. Landwirt, 261 A.D.2d 435, 687 N.Y.S.2d 298).   Contrary to the plaintiff's arguments, the attribution of another orthopedic surgeon, Dr. Andrew M. Peretz, of the plaintiff's alleged injuries and symptoms to the accident is unexplained and conclusory.   Therefore, it is insufficient to raise a triable issue of fact as to causation of the plaintiff's alleged injuries other than the fracture of the transverse process of the vertebrae at L5. Accordingly, the Supreme Court properly limited the issues for trial to the one injury the causation of which was in dispute (see CPLR 3212[g] ).

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