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

591
CA 16-02047
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.


KRISTY CARPENTER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PATRICK T. STEADMAN AND ERICH F. STEADMAN,
DEFENDANTS-APPELLANTS.


HAGELIN SPENCER LLC, BUFFALO (MATTHEW D. PFALZER OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (RICHARD A.
NICOTRA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Catherine
R. Nugent Panepinto, J.), entered August 18, 2016. The order denied
the motion of defendants for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by 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 she allegedly sustained when the vehicle she was operating
was struck from behind by a vehicle operated by defendant Patrick T.
Steadman and owned by defendant Erich F. Steadman. The complaint, as
amplified by the bill of particulars, sought recovery under three
categories of serious injury, i.e., the permanent consequential
limitation of use, significant limitation of use, and 90/180-day
categories (see Insurance Law § 5102 [d]). Defendants moved for
summary judgment dismissing the complaint on the ground that plaintiff
did not sustain a serious injury within the meaning of Insurance Law
§ 5102 (d).

     We agree with defendants that Supreme Court erred in denying the
motion with respect to the 90/180-day category, and we therefore
modify the order by granting the motion to that extent. Defendants
established that plaintiff did not sustain an injury that prevented
her “from performing substantially all of the material acts which
constitute such person’s usual and customary daily activities for not
less than 90 days during the 180 days immediately following the
occurrence of the injury” (Nitti v Clerrico, 98 NY2d 345, 357 n 5; see
                                 -2-                           591
                                                         CA 16-02047

Licari v Elliott, 57 NY2d 230, 238; Thornton v Husted Dairy, Inc., 134
AD3d 1402, 1403). Defendants submitted plaintiff’s deposition in
which she testified that she did not take any time off from her work
in sales after the accident, although she left early on “several
occasions” (see Pastuszynski v Lofaso, 140 AD3d 1710, 1711).
Defendants thus established that plaintiff’s activities were not
curtailed to a great extent (see Burns v McCabe, 17 AD3d 1111, 1111;
see generally Licari, 57 NY2d at 236). In opposition to the motion,
plaintiff failed to raise a triable issue of fact (see Thornton, 134
AD3d at 1403; Jones v Leffel, 125 AD3d 1451, 1452).

     Contrary to defendants’ further contention, however, the court
properly denied the motion with respect to the permanent consequential
limitation of use and significant limitation of use categories.
Defendants met their initial burden by submitting the affirmed report
of the physician who conducted an examination of plaintiff on behalf
of defendants and reviewed her medical reports, including an imaging
study that showed preexisting degenerative disc bulging at C5-6. He
concluded that plaintiff sustained only a temporary cervical strain
and that the diagnostic studies showed no evidence of a traumatic
injury as a result of the accident (see Williams v Jones, 139 AD3d
1346, 1347; Jones, 125 AD3d at 1451-1452; French v Symborski, 118 AD3d
1251, 1251, lv denied 24 NY3d 904).

     We agree with defendants that the court should not have
considered the second affidavit submitted by plaintiff’s chiropractor
in opposition to the motion because it constituted an improper
surreply (see McMullin v Walker, 68 AD3d 943, 944; Flores v
Stankiewicz, 35 AD3d 804, 805). Nevertheless, we conclude that
plaintiff raised an issue of fact through the submission of the
chiropractor’s first affidavit. Plaintiff’s chiropractor concluded
that the disc involvement as shown on the MRI was causally related to
the accident. Proof of a herniated or bulging disc, without
additional objective evidence, is insufficient to establish a serious
injury (see Pommells v Perez, 4 NY3d 566, 574; Clark v Boorman, 132
AD3d 1323, 1324). Here, however, the MRI showing the bulging disc,
together with the quantified limited range of cervical motion found by
the chiropractor, is sufficient objective evidence of a serious injury
(see Clark, 132 AD3d at 1324-1325; Courtney v Hebeler, 129 AD3d 1627,
1628; Ruiz v Cope, 119 AD3d 1333, 1334). The chiropractor also showed
objective evidence of an injury by stating that he detected muscle
spasms (see Marks v Alonso, 125 AD3d 1475, 1476; Harrity v Leone, 93
AD3d 1204, 1206). Contrary to defendants’ contention, plaintiff’s
chiropractor adequately addressed the alleged preexisting condition
found by defendants’ examining physician (cf. Franchini v Palmieri, 1
NY3d 536, 537).




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
