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

784
CA 11-00280
PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.


LAURA BARRES, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DAVID C. RIKER, DEFENDANT-APPELLANT.


BURKE, SCOLAMIERO, MORTATI & HURD, LLP, ALBANY (JEFFREY E. HURD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DAVID M. GIGLIO AND ASSOCIATES LLC, UTICA (ALYSSA O’NEIL OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (Anthony
F. Shaheen, J.), entered October 18, 2010 in a personal injury action.
The order, insofar as appealed from, denied in part the motion of
defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion
for summary judgment dismissing the complaint insofar as the complaint
alleges that plaintiff sustained a serious injury under the 90/180-day
category of serious injury within the meaning of Insurance Law § 5102
(d) and dismissing the complaint to that additional extent and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained while she was a passenger in a
vehicle that was struck by a vehicle driven by defendant. It is
undisputed that, at the time of the accident, plaintiff was recovering
from surgery to her left shoulder, which had been performed
approximately one month before the accident. Defendant moved for
summary judgment dismissing the complaint on the ground that plaintiff
did not sustain a serious injury under any of the categories of
Insurance Law § 5102 (d) set forth in the complaint, and Supreme Court
granted only that part of the motion with respect to the significant
disfigurement category of serious injury. We note at the outset that
the only injury addressed by the parties in their motion papers before
Supreme Court and on appeal is the alleged injury to plaintiff’s left
shoulder, despite the fact that the complaint also alleges that
plaintiff’s hips, legs and cervical spine also were affected. We thus
address on appeal only the alleged injury to plaintiff’s left shoulder
(see generally Ciesinski v Town of Aurora, 202 AD2d 984).

     With respect to the permanent consequential limitation of use and
                                 -2-                           784
                                                         CA 11-00280

significant limitation of use categories of serious injury allegedly
sustained by plaintiff, we conclude that the court properly denied
those parts of defendant’s motion. Whether a limitation of use or
function is consequential or significant, that is, important, “relates
to medical significance and involves a comparative determination of
the degree or qualitative nature of an injury based on the normal
function, purpose and use of the body part” (Dufel v Green, 84 NY2d
795, 798). Those categories require limitations that are more than
“ ‘minor, mild or slight’ ” (Toure v Avis Rent A Car Sys., 98 NY2d
345, 353, quoting Licari v Elliott, 57 NY2d 230, 236), and the
permanency of an injury alone is not sufficient to render it a
permanent consequential limitation of use (see Paolini v Sienkiewicz,
262 AD2d 1020). Here, there are issues of fact on the record before
us with respect to those two categories of serious injury relating to
plaintiff’s left shoulder. We note in particular that plaintiff
testified at her deposition that her left shoulder is dislocated twice
a week and that the dislocations are painful, and her treating
physician stated in an affidavit that the condition was permanent and
that the injury significantly limited her activity level. We reject
defendant’s conclusory contention that a person experiencing two
shoulder dislocations a week suffers only a minor, mild, or slight
inconvenience.

     We agree with defendant, however, that the court erred in denying
that part of his motion with respect to the 90/180-day category of
serious injury, and we therefore modify the order accordingly.
Plaintiff testified at her deposition that she missed only a few days
of school and that her injuries did not affect her school work, and we
note in addition that plaintiff’s first reported shoulder dislocation
after the accident occurred more than 180 days after the accident at
issue on appeal (see generally Chmiel v Figueroa, 53 AD3d 1092, 1093).




Entered:   June 10, 2011                        Patricia L. Morgan
-3-                  784
               CA 11-00280

      Clerk of the Court
