Crane v. Glover, 763 CA 16-01914.

• Decision Date: 16 June 2017
• Docket Number: 763 CA 16-01914.
• Citation: 151 A.D.3d 1841,59 N.Y.S.3d 212
• Parties: Teresa CRANE, Plaintiff–Appellant, v. Casey GLOVER and Pamela Devendorf, Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1841

59 N.Y.S.3d 212

Teresa CRANE, Plaintiff–Appellant,

v.Casey GLOVER and Pamela Devendorf, Defendants–Respondents.

763 CA 16-01914.

Supreme Court, Appellate Division, Fourth Department, New York.

June 16, 2017.

Parisi & Bellavia, LLP, Rochester (Timothy C. Bellavia of Counsel), for Plaintiff–Appellant.

Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Karen J. Krogman Daum of Counsel), for Defendants–Respondents.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries she allegedly sustained when the taxi cab in which she was a passenger collided with a vehicle operated by defendant Casey Glover and owned by her mother, defendant Pamela Devendorf. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff had not sustained a serious injury within the meaning of Insurance Law § 5102(d) or an economic loss in excess of basic economic loss. Plaintiff moved for summary judgment on the issue of negligence and cross-moved for summary judgment with respect to two categories of serious injury, i.e., permanent consequential limitation of use and significant limitation of use. Supreme Court granted defendants' motion, denied plaintiff's motion and cross motion, and dismissed the complaint.

We agree with plaintiff that the court erred in granting defendants' motion with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury, and we therefore modify the order accordingly. Defendants' own submissions in support of their motion raise triable issues of fact with respect to those two categories (see Thomas v. Huh, 115 A.D.3d 1225, 1225, 982 N.Y.S.2d 634 ). Defendants submitted an imaging study of plaintiff's lumbar spine, which showed a bulging disc at L4–5, and the affirmed report of the physician who conducted an examination of plaintiff on behalf of defendants and found that plaintiff had significant limited range of motion in flexion and extension. That study and report raise a triable issue of fact whether plaintiff had objective evidence of a serious injury (see Courtney v. Hebeler, 129 A.D.3d 1627, 1628, 14 N.Y.S.3d 599 ; see generally Clark v. Boorman, 132 A.D.3d 1323, 1324, 17 N.Y.S.3d 255 ). Defendants also submitted plaintiff's medical records, which showed that plaintiff's chiropractor detected muscle spasms at L4–5, which also raises a triable issue of fact whether there was objective evidence of an injury (see Marks v. Alonso, 125 A.D.3d 1475, 1476, 4 N.Y.S.3d 425 ; Harrity v. Leone, 93 A.D.3d 1204, 1206, 940 N.Y.S.2d 386 ). While the affirmed report of the physician who conducted the examination of plaintiff on behalf of defendants concluded that the disc bulge was "typically" consistent with degenerative disc disease, defendants also submitted medical records from one of plaintiff's treating physicians, which contained the physician's opinion that "[i]t [wa]s more likely than not" that plaintiff's lumbar spine complaints were caused by the motor vehicle accident (see Thomas, 115 A.D.3d at 1226, 982 N.Y.S.2d 634 ). Furthermore, the affirmed report of the physician does not establish that plaintiff's condition is the result of a preexisting degenerative disc disease inasmuch as it "fails to account for evidence that plaintiff had no complaints of pain prior to the accident" (id. ; see Ashquabe v. McConnell , 46 A.D.3d 1419, 1419, 848 N.Y.S.2d 794 ).

We reject plaintiff's contention, however, that she was entitled to summary judgment with respect to those two categories of serious injury. Plaintiff failed to meet her initial burden of establishing a permanent consequential limitation of use or a significant limitation of use through either a quantitative determination of any limited range of motion or a qualitative assessment of plaintiff's condition...