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

200
CA 14-00736
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, AND WHALEN, JJ.


ANGELA SIMS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KUSHNOOD HAQ, DEFENDANT-APPELLANT.


HAGELIN KENT LLC, BUFFALO (BRENT C. SEYMOUR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

HOGAN WILLIG, PLLC, AMHERST (SCOTT M. DUQUIN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered January 15, 2014. The order denied the motion
of defendant for summary judgment dismissing the complaint and granted
the cross motion of plaintiff for partial summary judgment on
liability, i.e., on the issue of negligence and her claim that she
sustained a serious injury under the 90/180-day category of Insurance
Law § 5102 (d).

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the cross motion and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when her vehicle collided at an
intersection with a vehicle operated by defendant. Plaintiff alleged
that she sustained qualifying injuries pursuant to Insurance Law §
5102 (d) in the permanent consequential limitation of use, significant
limitation of use, and 90/180-day categories. Defendant moved for
summary judgment dismissing the complaint on the ground that plaintiff
did not sustain a serious injury in the accident under any of those
categories. Plaintiff cross-moved for partial summary judgment on
liability, i.e., on the issue of negligence and her claim that she
sustained a serious injury under the 90/180-day category (see Ruzycki
v Baker, 301 AD3d 48-51, 52). Supreme Court properly denied
defendant’s motion, but erred in granting plaintiff’s cross motion,
and we therefore modify the order accordingly.

     We conclude that the court properly denied the motion with
respect to the permanent consequential limitation of use and
significant limitation of use categories. Although defendant met his
initial burden, plaintiff raised triable issues of fact (see Leahey v
Fitzgerald, 1 AD3d 924, 926; Parkhill v Cleary, 305 AD2d 1088, 1089).
                                 -2-                           200
                                                         CA 14-00736

We further conclude that the court erred in granting that part of the
cross motion concerning the 90/180-day category. The conflicting
affirmations of the medical experts raise triable issues of fact
whether plaintiff sustained a serious injury under that category (see
Linnane v Szabo, 111 AD3d 1304, 1305; Verkey v Hebard, 99 AD3d 1205,
1206).

     The court also erred in granting that part of the cross motion
concerning defendant’s negligence. The conflicting testimony of the
parties with respect “to which driver was proceeding with a green
light raised a triable issue of fact on the question of [negligence]”
(Alexandre v Dweck, 44 AD3d 597, 597-598; see D.F. v Wedge Mascot
Corp., 43 AD3d 1372, 1373).




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
