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

260
CA 15-00800
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


RUTH SOBIERAJ, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

KELCEY L. SUMMERS AND GARY E. SUMMERS,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


DENNIS J. BISCHOF, LLC, WILLIAMSVILLE (DENNIS J. BISCHOF OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

BURGIO, KITA , CURVIN & BANKER, BUFFALO (WILLIAM J. KITA OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (Timothy J. Drury, J.), entered January 5, 2015.
The order and judgment granted the cross motion of defendants for
summary judgment dismissing the complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously reversed on the law without costs, the cross motion is
denied and the complaint is reinstated.

     Memorandum: Plaintiff commenced this negligence action seeking
damages for injuries she sustained in a motor vehicle accident.
Plaintiff moved for partial summary judgment on the issue of
negligence, and defendants cross-moved for summary judgment dismissing
the complaint on the ground that plaintiff did not sustain a serious
injury as a result of the accident (see Insurance Law § 5102 [d]). In
appeal No. 1, plaintiff appeals from an order and judgment granting
defendants’ cross motion and, in appeal No. 2, she appeals from an
order insofar as it denied that part of her motion for leave to renew
her opposition to defendants’ cross motion.

     At the outset, we note that the parties conceded at oral argument
of this appeal that the only issue before us is whether plaintiff’s
alleged injuries were caused by the motor vehicle accident. We agree
with plaintiff that Supreme Court erred in granting defendants’ cross
motion inasmuch as defendants failed to meet their initial burden.
Here, defendants’ own expert concluded that plaintiff sustained a
temporary cervical muscle strain in the accident and that plaintiff
denied any preexisting complaints of pain in her neck (see Clark v
Aquino, 113 AD3d 1076, 1076). Furthermore, the opinion of that expert
“that plaintiff’s condition was the result of degenerative changes
                                 -2-                           260
                                                         CA 15-00800

predating the accident[] fails to account for evidence that plaintiff
had no complaints of pain prior to the accident” (Thomas v Huh, 115
AD3d 1225, 1226). Because defendants failed to meet their initial
burden on the cross motion, there is no need to consider the
sufficiency of plaintiff’s opposing papers (see Summers v Spada, 109
AD3d 1192, 1193).

     In light of our determination in appeal No. 1, plaintiff’s appeal
from the order in appeal No. 2 must be dismissed as moot.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
