                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 16, 2014                     517390
________________________________

WILLIAM POOLE,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   September 3, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

                               __________


     John T. Casey Jr., Troy, for appellant.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondent.

                               __________


Lahtinen, J.

      Appeal from an order of the Court of Claims (McCarthy, J.),
entered November 30, 2012, which, among other things, granted
defendant's motion for summary judgment dismissing the claim.

      Claimant contends that he sustained a serious injury within
the meaning of Insurance Law § 5102 (d) when his vehicle was in
an accident with a vehicle owned by defendant and operated by
defendant's employee, Kristina Honsinger. The accident occurred
on March 29, 2010 in the City of Troy, Rensselaer County, when
Honsinger, who was at a stop sign, attempted to enter the street
where claimant was traveling and struck claimant's vehicle on the
passenger side near the rear wheel area. Claimant sought medical
treatment two days after the accident with complaints of, among
other things, pain in his neck, shoulders and upper back.
Thereafter, he received treatment from several healthcare
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providers including, during the six months after the accident,
about 10 visits to his primary care doctor and a neurologist –
where he twice received epidural injections – as well as multiple
sessions of physical therapy and therapeutic massage. He was
also seen by an orthopedist during such time and, after several
visits, opted for surgery in November 2010 for a herniated disc
allegedly caused by the accident.

      Plaintiff commenced this claim asserting serious injury
under the permanent consequential limitation of use, significant
limitation of use and 90/180-day categories. Following
discovery, defendant moved for summary judgment dismissing the
claim upon the ground that claimant did not suffer a serious
injury. Claimant opposed the motion and cross-moved for partial
summary judgment on the issue of liability. The Court of Claims
granted defendant's motion and denied claimant's cross motion as
moot. Claimant appeals.

      We reverse. Defendant had the initial burden as the
proponent of summary judgment to submit competent medical
evidence eliminating any material factual issues (see Russell v
Pulga-Nappi, 94 AD3d 1283, 1284 [2012]; D'Auria v Kent, 80 AD3d
956, 957 [2011]). Although defendant met its burden as to the
permanent consequential limitation of use and significant
limitation of use categories, defendant failed to meet its burden
regarding the 90/180-day category. Defendant's expert,
Christopher Calder, a neurologist, reviewed claimant's medical
records and examined claimant in September 2011, which was well
after the accident and claimant's surgery for the herniated disc.
Although Calder opined that claimant suffered a "minor cervical
sprain" and that his "ongoing symptoms" are not related to the
accident, he did not "adequately address [claimant's] condition
or limitations within the first 180 days following the accident,
which was necessary to foreclose the 90/180-day category of
serious injury" (Colavito v Steyer, 65 AD3d 735, 736 [2009]; see
Ames v Paquin, 40 AD3d 1379, 1380 [2007]; Lowell v Peters, 3 AD3d
778, 780 [2004]).

      Defendant's failure to address with any specificity the 180
days following the accident is notable in light of claimant's
allegations and proof (see Torres v Performance Auto. Group,
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Inc., 36 AD3d 894, 895 [2007]), which would in any event be
sufficient to raise a factual issue as to such category (see
Colavito v Steyer, 65 AD3d at 736). He set forth in his
supplemental bill of particulars and testified about his many
normal activities that were curtailed following the accident,
including, among others, cleaning, lifting, walking for more than
10 minutes, recreational activities, driving for more than 30
minutes, mowing, shoveling, shopping and returning to work. He
included medical evidence as to his inability to return to work
and, in fact, eventually was awarded Social Security disability.
Although disputed by defendant, medical opinions and records
submitted by claimant causally related his injuries – including
the herniated disc and resulting surgery – to the accident as
well as setting forth quantified results of limitations on his
range of motion. We further find that, viewed most favorably to
claimant, his proof was sufficient to raise triable issues as to
the permanent consequential limitation of use and significant
limitation of use categories (see Hyatt v Maguire, 106 AD3d 1180,
1181 [2013]).

      Next, we consider claimant's cross motion for partial
summary judgment on the issue of liability. Claimant testified
at his deposition and submitted an affidavit that he was
traveling on a street with the right-of-way and within the speed
limit when Honsinger suddenly entered from a side street and
struck his vehicle. Honsinger acknowledged in her deposition
that she did not see claimant's vehicle before pulling out past a
stop sign, the front of her vehicle hit the passenger's side near
the back of claimant's vehicle and she did not observe claimant
do anything that caused or contributed to the accident. Under
such circumstances, claimant's cross motion should have been
granted (see Griffin v Pennoyer, 49 AD3d 341, 341-342 [2008];
Horton v Warden, 32 AD3d 570, 571-572 [2006]).

     Peters, P.J., Garry, Rose and Clark, JJ., concur.
                              -4-                  517390

      ORDERED that the order is reversed, on the law, without
costs, defendant's motion denied, claimant's cross motion
granted, and partial summary judgment awarded to claimant.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
