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

475
CA 15-01159
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


BRENDA M. BOROSZKO AND ROBERT R. BOROSZKO,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

GERALD J. ZYLINSKI, PRAXAIR DISTRIBUTION, INC.,
MICHAEL A. PECA AND KRISTEN L. PECA,
DEFENDANTS-RESPONDENTS.


MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL),
FOR PLAINTIFFS-APPELLANTS.

GOLDBERG SEGALLA LLP, BUFFALO (PAUL D. MCCORMICK OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS GERALD J. ZYLINSKI AND PRAXAIR DISTRIBUTION,
INC.

BURGIO, KITA, CURVIN & BANKER, BUFFALO (JAMES P. BURGIO OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS MICHAEL A. PECA AND KRISTEN L. PECA.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered April 1, 2015. The order granted the motion and
cross motion of defendants for summary judgment, denied the cross
motion of plaintiffs for partial summary judgment and dismissed the
complaint.

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

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by Brenda M. Boroszko (plaintiff) in two
separate motor vehicle accidents. In January 2009, plaintiff was
involved in an accident when defendant Gerald J. Zylinski, who was
operating a vehicle owned by his employer, defendant Praxair
Distribution, Inc. (collectively, Praxair defendants), exited a
parking lot onto the street and collided with the passenger side of
plaintiff’s vehicle. In January 2011, plaintiff was involved in
another accident when she was rear-ended while stopped at a red light
by a vehicle operated by defendant Michael A. Peca and owned by
defendant Kristen L. Peca (collectively, Peca defendants). As
relevant on appeal, plaintiffs alleged that, as a result of the
accidents, plaintiff “sustained[,] aggravated[,] and/or exacerbated”
injuries to her cervical and lumbar spine under the permanent loss of
use, permanent consequential limitation of use, and significant
limitation of use categories of serious injury as defined in Insurance
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                                                         CA 15-01159

Law § 5102 (d). The Peca defendants moved for summary judgment
dismissing the complaint against them on the ground that plaintiff did
not sustain a serious injury within the meaning of those categories,
and the Praxair defendants cross-moved for the same relief.
Plaintiffs opposed defendants’ motions, and cross-moved for partial
summary judgment on the issue of the Praxair defendants’ negligence.
Supreme Court granted the Peca defendants’ motion and the Praxair
defendants’ cross motion, and denied plaintiffs’ cross motion. We
affirm.

     We note at the outset that plaintiffs limit their appeal to the
permanent consequential limitation of use and significant limitation
of use categories of Insurance Law § 5102 (d), and therefore they have
abandoned the other remaining category of serious injury alleged in
their bills of particulars, i.e., permanent loss of use (see Fanti v
McLaren, 110 AD3d 1493, 1494). Further, plaintiffs concede that
plaintiff suffered no serious injury to her cervical or lumbar spine
following the first accident in January 2009. They contend that
plaintiff’s lumbar spine injury did not exist until the second
accident in January 2011 and that her cervical spine injury qualified
as serious under the statute only upon aggravation or exacerbation as
a result of the second accident in January 2011.

     Plaintiffs contend that the Peca defendants failed to meet their
initial burden of establishing that plaintiff did not have any serious
injury following the second accident that arose from aggravation or
exacerbation of her preexisting injuries and/or conditions. We reject
that contention. In support of their motion, the Peca defendants
submitted hospital records from the date of the second accident, which
established that, although plaintiff reported neck and back pain and
was ultimately diagnosed with a sprain in those areas, her physical
examination demonstrated “[n]o true pain along her cervical spine,”
her cervical spine X rays showed no fracture, she was given pain
medication, and she was discharged. Moreover, while plaintiff’s
radiology report showed no visible pathologic prevertebral soft tissue
swelling, it did show “moderate multilevel degenerative disc disease
with moderate degenerative changes throughout the cervical spine.” In
addition to various other medical records, the Peca defendants also
submitted an affirmed report of a physician who reviewed plaintiff’s
records and conducted a physical examination of her, as well as an
affirmed report of a radiologist who reviewed plaintiff’s MRI records.
The physician and the radiologist opined that plaintiff’s complaints
following the second accident were the same as those prior to that
accident, that plaintiff’s MRIs and X rays—which showed degenerative
changes—were unchanged after the second accident, and that there was
no evidence of posttraumatic injuries to plaintiff’s cervical or
lumbar spine following the second accident (see Garcia v Feigelson,
130 AD3d 498, 499; Heatter v Dmowski, 115 AD3d 1325, 1326; Pina v
Pruyn, 63 AD3d 1639, 1639; Faso v Fallato, 39 AD3d 1234, 1234).
Although plaintiffs correctly note that the physician documented
limited range of motion in plaintiff’s cervical spine upon his
examination of her, the Peca defendants’ submissions also included a
December 2010 chiropractic record that the physician reviewed. That
chiropractic record showed that plaintiff had essentially the same
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                                                         CA 15-01159

levels of decreased range of motion just weeks before the January 2011
accident, and thus established that there was no aggravation or
exacerbation of plaintiff’s condition as a result of the second
accident. To the extent that plaintiffs rely on a September 2000
record showing that plaintiff had full range of motion, such reliance
is misplaced given the length of time between the prior record and the
January 2011 accident, the evidence of various other accidents and
injuries suffered by plaintiff during the intervening time period, and
the more recent testing showing nearly identical range of motion
deficits just before the second accident (see Yakubov v CG Trans
Corp., 30 AD3d 509, 510). The Peca defendants thus established that
plaintiff did not suffer aggravation or exacerbation of any
preexisting injury or condition, and that she did not have any serious
injury following the second accident (see Faso, 39 AD3d at 1234).

     Contrary to plaintiffs’ further contention, we conclude that
their submissions in opposition to the motion failed to raise a
triable issue of fact. Although plaintiff’s orthopedist, who first
examined plaintiff 10 months after the second accident and provided an
affirmation on her behalf, opined that plaintiff had measurable
limitations in her range of motion, he failed to refute the opinion of
the Peca defendants’ examining physician that plaintiff had not
sustained any additional limitation causally related to the January
2011 accident by, for example, “comparing plaintiff’s pre- and
post-accident range of motion restrictions” (Overhoff v Perfetto, 92
AD3d 1255, 1256, lv denied 19 NY3d 804). To the extent that the
orthopedist’s opinion that the two accidents activated, aggravated,
and/or exacerbated certain preexisting conditions is responsive to the
Peca defendants’ prima facie showing of entitlement to summary
judgment, we conclude that the orthopedist “failed to provide any
basis for determining the extent of any exacerbation of plaintiff’s
prior injuries” (Brand v Evangelista, 103 AD3d 539, 540). Although
the orthopedist reviewed an April 2009 MRI, he failed to explain how
the January 2011 accident aggravated the alleged injuries sustained in
the January 2009 accident, and thus failed to raise a triable issue of
fact whether such injuries qualified as serious under the statute (see
Brand, 103 AD3d at 540; Nowak v Breen, 55 AD3d 1186, 1188-1189).

     Inasmuch as the parties’ submissions establish, as a matter of
law, that plaintiff did not suffer any serious injury following the
January 2011 accident resulting from aggravation or exacerbation of
her preexisting injuries and/or conditions, plaintiffs’ theory of
liability against the Praxair defendants, i.e., that the January 2009
accident contributed to plaintiff’s purported serious injuries
following the second accident, necessarily fails. We therefore agree
with the Praxair defendants that the court properly granted their
cross motion for summary judgment dismissing the complaint against
them. Finally, in light of our determination, we do not address
plaintiffs’ contention that they are entitled to partial summary
judgment on the issue of the Praxair defendants’ negligence.

Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
