Robinson v. White

6 A.D.3d 1059, 775 N.Y.S.2d 618, 2004 N.Y. App. Div. LEXIS 6118

Opinion

Appeal from an order of the Supreme Court, Jefferson County (Hugh A. Gilbert, J.), entered May 19, 2003. The order denied defendant’s 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 modified on the law by granting the motion in part and dismissing the complaint, as amplified by the bill of particulars, with respect to the permanent loss of use of a body organ, member, function or system category of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries that plaintiff John D. Robinson allegedly sustained when his vehicle was struck by a vehicle driven by defendant. Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint, as amplified by the bill of particulars, with respect to three of the four categories of serious injury alleged, i.e., permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system, and an injury pursuant to the 90/180 category (see Insurance Law § 5102 [d]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We conclude, however, that plaintiffs abandoned the fourth category of serious injury set forth in their bill of particulars, i.e., permanent loss of use of a body organ, member, function or system, and thus we modify the order accordingly. Present— Pigott, Jr., PJ., Pine, Wisner, Scudder and Kehoe, JJ.