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

1194
CA 16-00601
PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.


VIRGINIA L. CAUM LAKE AND GREGORY M. LAKE,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

SAFECO INSURANCE COMPANY OF AMERICA,
DEFENDANT-APPELLANT.


LAW OFFICES OF DESTIN C. SANTACROSE, BUFFALO (SHANE COSTA OF COUNSEL),
FOR DEFENDANT-APPELLANT.

WELCH, DONLON & CZARPLES, PLLC, CORNING (MICHAEL DONLON OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Steuben County (Elma
A. Bellini, J.), dated August 12, 2015. The order, among other
things, denied in part defendant’s motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Virginia L. Caum Lake (plaintiff) allegedly
sustained injuries when she was involved in a rear-end motor vehicle
accident. Following the settlement of their claims against the other
driver involved in the accident, plaintiffs commenced this action to
recover supplementary uninsured motorist benefits under a provision of
the automobile insurance policy issued to them by defendant. Insofar
as relevant to this appeal, defendant moved for summary judgment
dismissing the complaint on the grounds that plaintiff did not sustain
a serious injury, i.e., a permanent consequential limitation of use
and significant limitation of use, within the meaning of Insurance Law
§ 5102 (d), and that she did not sustain economic loss in excess of
basic economic loss. Supreme Court denied the motion to that extent.

     We agree with plaintiff that the court properly denied the motion
with respect to the permanent consequential limitation of use and
significant limitation of use categories of serious injury. Defendant
failed to establish as a matter of law that plaintiff did not sustain
a qualifying injury as a result of the motor vehicle accident (see
Nyhlen v Giles, 138 AD3d 1428, 1429). Although defendant submitted an
independent medical examination (IME) report/affirmation establishing
that plaintiff had preexisting degenerative changes to her cervical
spine and further establishing that all of plaintiff’s mobility
limitations were attributable to such degenerative changes or to a
                                 -2-                          1194
                                                         CA 16-00601

subsequent motor vehicle accident, defendant also submitted a second
IME report/affirmation tending to establish that plaintiff had
sustained a qualifying injury as a result of the subject motor vehicle
accident. Moreover, defendant submitted records and reports of
plaintiff’s treating physicians and chiropractors, and some of those
documents, which predate the subsequent accident, recite that
plaintiff’s cervical injuries were the result of the subject accident.
Some of those contemporaneous records and reports also set forth
qualitative or quantative assessments of plaintiff’s limited range of
motion in her neck. Thus, defendant failed to eliminate all issues of
fact concerning whether plaintiff sustained a permanent consequential
limitation of use or a significant limitation of use of her cervical
spine as a result of the subject accident (see id. at 1429-1430; Clark
v Aquino, 113 AD3d 1076, 1077-1078). In any event, we conclude that
plaintiff raised triable issues of fact concerning the nature, extent,
cause, and permanency of the alleged injuries to her neck (see Barron
v Northtown World Auto, 137 AD3d 1708, 1709; Parkhill v Cleary, 305
AD2d 1088, 1088-1089).

     We further conclude that the court properly denied the motion
insofar as it sought dismissal of plaintiff’s claim for economic loss
in excess of basic economic loss (see Colvin v Slawoniewski, 15 AD3d
900, 900; Mainella v Allstate Ins. Co., 269 AD2d 365, 366; Tortorello
v Landi, 136 AD2d 545, 545-546; cf. Hartman-Jweid v Overbaugh, 70 AD3d
1399, 1400-1401; see also Insurance Law § 5104 [a]).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
