SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.
BETSY BOWEN, PLAINTIFF-RESPONDENT,
MEMORANDUM AND ORDER
THOMAS C. DUNN, ELIZABETH DUNN, DEFENDANTS-
ET AL., DEFENDANT.
TREVETT, LENWEAVER & SALZER, P.C., ROCHESTER (CYNTHIA A. CONSTANTINO
GLEASON OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
JOSEPH J. TERRANOVA, HAMBURG, FOR PLAINTIFF-RESPONDENT.
Appeal from an order of Supreme Court, Wyoming County (Dadd, J.),
entered March 20, 2002, which denied the motion of defendants Thomas
C. Dunn and Elizabeth Dunn seeking summary judgment dismissing the
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
of defendants Thomas C. Dunn and Elizabeth Dunn in part and dismissing
the claim of serious injury under the significant limitation of use of
a body function or system category under Insurance Law § 5102 (d)
against them and as modified the order is affirmed without costs.
Memorandum: Although Supreme Court properly denied that part of
the motion of Thomas C. Dunn and Elizabeth Dunn (defendants) seeking
summary judgment dismissing the claim under the 90/180-day category of
serious injury, it erred in denying that part of the motion seeking
summary judgment dismissing the claim under the significant limitation
of use of a body function or system category (see Insurance Law § 5102
[d]). With respect to plaintiff's claim of serious injury under the
90/180-day category, "the complaint as amplified by the