Flottemesch v. Contreras

APPELLATE DIVISION
THIRD DEPARTMENT
Torts

New York Law Journal

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Justice Elizabeth A. Garry

Flottemesch appealed from an order granting defendants' motion for summary judgment dismissing the complaint and also denied his motion for reconsideration. He sought to recover damages for injuries allegedly sustained when defendants' vehicle struck the rear of his stopped vehicle. Defendants sought, and were granted dismissal based on their contention that Flottemesch did not sustain a serious injury. Plaintiff's motion for reargument and renewal was denied and he appealed. The court agreed with the Supreme Court that defendants satisfied their initial burden of showing that Flottemesch did not suffer a significant limitation as a result of the accident. The court concluded the evidence presented, including neurologist Kufner's affirmation opining plaintiff suffered from cervical spondylosis as the result of cervical arthritis that was precipitated and aggravated by a whiplash injury he suffered in the 2005 motor vehicle accident, was sufficient to raise an issue of material fact. Thus, the order was modified and reversed the granting of defendants' motion for summary judgment dismissing the complaint. Also, as defendants conceded liability, Flottemesch was entitled to partial summary judgment.

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