         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1211
CA 12-00865
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.


HARRY J. HAWKINS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SHANNON E. BRYANT, DEFENDANT-APPELLANT.


BARTH SULLIVAN BEHR, BUFFALO (ANDREW J. KOWALEWSKI OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered August 11, 2011 in a personal injury action. The
order denied defendant’s motion for summary judgment and granted
plaintiff’s cross motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the cross
motion on the issue of serious injury and granting the motion in part
and dismissing the complaint, as amplified by the bill of particulars,
with respect to the 90/180-day category of serious injury within the
meaning of Insurance Law § 5102 (d) and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained in a motor vehicle accident when the
vehicle he was driving was struck by a vehicle owned and operated by
defendant. Defendant thereafter moved for summary judgment dismissing
the complaint on the ground that plaintiff did not sustain a serious
injury in the accident within the meaning of Insurance Law § 5102 (d).
Supreme Court denied defendant’s motion and granted plaintiff’s cross
motion for summary judgment on the issues of serious injury and
negligence. We note at the outset that, as plaintiff notes in his
brief, he did not oppose defendant’s motion with respect to the
90/180-day category of serious injury. We therefore modify the order
by denying the cross motion with respect to that category of serious
injury and by granting the motion to that extent.

     We conclude that the court erred in granting those parts of
plaintiff’s cross motion for summary judgment with respect to the two
remaining categories of serious injury alleged by plaintiff, i.e.,
permanent consequential limitation of use and significant limitation
of use, but properly denied those parts of defendant’s motion with
                                 -2-                          1211
                                                         CA 12-00865

respect thereto. We therefore further modify the order accordingly.
Defendant is correct that she met her initial burden by submitting
medical records and reports constituting “persuasive evidence that
plaintiff’s alleged pain and injuries were related to . . .
preexisting condition[s]” (Carrasco v Mendez, 4 NY3d 566, 580; see
Spanos v Fanto, 63 AD3d 1665, 1666). As a result, plaintiff had the
burden of coming forward with evidence addressing defendant’s claimed
lack of causation (see Carrasco, 4 NY3d at 580; Briody v Melecio, 91
AD3d 1328, 1329). We agree with defendant that the affidavit of
plaintiff’s treating chiropractor submitted by plaintiff fails to
address the issue of causation and thus was insufficient to raise a
triable issue of fact on causation (see Smith v Besanceney, 61 AD3d
1336, 1337-1338; Caldwell v Grant [appeal No. 2], 31 AD3d 1154, 1155).
However, plaintiff’s treating orthopedic surgeon, who reviewed the
results of plaintiff’s X rays and MRI scans, opined that the accident
was the “competent and producing cause of [plaintiff’s] spinal
conditions by means of activation aggravation of his lumbar stenosis
and degenerative spondylosis and causing worsening of the disc
herniations in the lumbar spine.” Thus, plaintiff raised a triable
issue of fact with respect to causation (see Seck v Balla, 92 AD3d
543, 544). We further conclude that plaintiff’s submissions contain
the requisite objective medical findings sufficient to raise issues of
fact whether plaintiff sustained a serious injury under both
categories of serious injury alleged by him (see generally Toure v
Avis Rent A Car Sys., 98 NY2d 345, 350; Roll v Gavitt, 77 AD3d 1412,
1413).

     We further conclude that the court properly granted that part of
plaintiff’s cross motion for summary judgment on the issue of
negligence. Plaintiff met his initial burden by establishing as a
matter of law “that the sole proximate cause of the accident was
defendant’s failure to yield the right of way” to plaintiff and
defendant failed to raise a triable issue of fact (Kelsey v Degan, 266
AD2d 843, 843; see Guadagno v Norward, 43 AD3d 1432, 1433; see also
Fratangelo v Benson, 294 AD2d 880, 881). There is no evidence that
plaintiff could have done anything to avoid the collision (see
Driscoll v Casey, 299 AD2d 885, 885; Bolta v Lohan, 242 AD2d 356, 356)
and we note that, in approaching the intersection, plaintiff was
entitled to anticipate that defendant “would comply with the Vehicle
and Traffic Law and yield the right-of-way” (Colaruotolo v Crowley,
290 AD2d 863, 864).




Entered:   December 21, 2012                   Frances E. Cafarell
                                               Clerk of the Court
