Guck v. Fagnan

Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered September 16, 2003. The order denied defendants’ motion for summary judgment dismissing the complaint in a personal injury action. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiffs commenced this personal injury action seeking damages for injuries sustained by Patricia J. Guck (plaintiff) when a vehicle driven by defendant Michael A. Fagnan and owned by defendants Gelco Corporation and Amgen, Inc., collided with the rear portion of plaintiffs vehicle while it was stopped at a stop sign. Supreme Court properly denied defendants’ motion seeking summary judgment dismissing the complaint inasmuch as defendants failed to come “ ‘forward with competent proof refuting the allegations of the complaint as amplified by the bill of particulars’ ” that plaintiff sustained a serious injury with respect to the significant limitation of use of a body function or system and the 90/180 categories (Aleksiejuk v Pell, 300 AD2d 1066, 1066 [2002]). In support of their motion, defendants submitted plaintiffs medical records detailing the objective tests used to diagnose and treat plaintiff, including records that quantify the limitations of movement of plaintiffs cervical spine (see id. at 1066-1067). “Defendants] failed to demonstrate that [plaintiff] suffered only ‘a mild, minor or slight limitation of use’ ... or that [plaintiffs] activities were not curtailed to a great extent during the statutory period” (Stokes v Brown, 2 AD3d 1373, 1374 [2003]; see Halsey v 1052 Rochester-Genesee Regional Transp. Auth., 6 AD3d 1221 [2004]). We therefore conclude that defendants failed to meet their initial burden of establishing their entitlement to judgment. Present— Hurlbutt, J.P., Scudder, Kehoe, Smith and Hayes, JJ.