        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

281
CA 16-01165
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN,


SHARA A. ARMPRESTER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MICHAEL J. ERICKSON, JR., DEFENDANT-APPELLANT,
ET AL., DEFENDANT.


BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SMITH, MINER, O’SHEA & SMITH, LLP, BUFFALO (CARRIE L. SMITH OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered September 18, 2015. The order, insofar as
appealed from, granted that part of the motion of plaintiff for
partial summary judgment on the issue of serious injury.

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

     Memorandum: Plaintiff commenced this negligence action to
recover damages for injuries that she sustained in successive motor
vehicle collisions. In March 2013, plaintiff was driving her vehicle
north on Niagara Falls Boulevard at approximately 45 miles per hour
when a vehicle driven by Michael J. Erickson, Jr. (defendant) made a
left turn out of a gas station parking lot and struck the passenger
side of her vehicle. Plaintiff’s vehicle spun around three times and
came to rest in the center lane of the road. While the parties waited
for emergency personnel to arrive, a third vehicle operated by an
intoxicated driver collided with plaintiff’s vehicle, throwing her
from the vehicle onto the pavement beneath defendant’s vehicle.

     We conclude that Supreme Court properly granted plaintiff’s
motion insofar as she sought partial summary judgment on the issue
whether she sustained a serious injury within the meaning of Insurance
Law § 5102 (d) as a result of the initial collision with defendant’s
vehicle. Although defendant contends that plaintiff failed to
establish that her injuries were attributable to the initial
collision, we conclude that plaintiff met her initial burden by
submitting her deposition testimony and the expert affirmation of her
treating physician (cf. Barnes v Fix, 63 AD3d 1515, 1516, lv denied 13
NY3d 716). Her physician opined with a reasonable degree of medical
certainty that plaintiff suffered postconcussion syndrome,
                                 -2-                           281
                                                         CA 16-01165

posttraumatic headaches, and cognitive dysfunction as a result of the
initial collision with defendant’s vehicle, and defendant does not
dispute that those injuries constitute a “significant limitation of
use of a body function or system” (§ 5102 [d]). Contrary to
defendant’s further contention, we conclude that plaintiff’s
deposition testimony that she did not recall having experienced pain
during the few minutes between the collisions did not create an issue
of fact whether those injuries are attributable to the initial
collision. The burden then shifted to defendant, who failed to raise
an issue of fact (see generally Zuckerman v City of New York, 49 NY2d
557, 562).




Entered:   March 24, 2017                      Frances E. Cafarell
                                               Clerk of the Court
