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

1264
CA 15-00504
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THOMAS J. ARMELLA, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ROBERT E. OLSON, DEFENDANT-RESPONDENT.


CAMPBELL & SHELTON LLP, EDEN (R. COLIN CAMPBELL OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LAW OFFICES OF JOHN WALLACE, BUFFALO (BETSY F. VISCO OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Chautauqua County
(Deborah A. Chimes, J.), entered June 12, 2014. The order, among
other things, granted defendant’s motion for summary judgment
dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion in part and
reinstating the complaint, as amplified by the bill of particulars,
with respect to the permanent consequential limitation of use and
significant limitation of use categories 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 he sustained when his vehicle was struck from behind by a
third party’s vehicle that had been struck by defendant’s vehicle.
Defendant 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). Plaintiff opposed the motion
only with respect to the permanent consequential limitation of use and
significant limitation of use categories of serious injury alleged in
the complaint, as amplified by the bill of particulars, and has
therefore abandoned his claims with respect to the other categories of
serious injury (see Oberly v Bangs Ambulance, 96 NY2d 295, 297;
Feggins v Fagard, 52 AD3d 1221, 1222). We agree with plaintiff that
Supreme Court erred in granting the motion with respect to the
permanent consequential limitation of use and significant limitation
of use categories of serious injury, and we therefore modify the order
accordingly. Even assuming, arguendo, that defendant met his initial
burden, we conclude that plaintiff raised triable issues of fact with
respect to those two categories (see Austin v Rent A Ctr. E., Inc., 90
AD3d 1542, 1543). Plaintiff submitted the affidavit of his treating
                                 -2-                          1264
                                                         CA 15-00504

physician, who reviewed plaintiff’s cervical MRI and opined that
plaintiff sustained a cervical whiplash superimposed on a degenerative
cervical spine and at least two levels of cervical herniations. His
physical examination of plaintiff revealed muscle spasms, which
constitute objective evidence of injury (see id. at 1544), and
plaintiff’s range of motion was limited to a moderate or marked
degree. He opined that, given plaintiff’s absence of any prior neck
pain, stiffness, or radiculopathy prior to the accident, the accident
was a substantial factor in causing previously asymptomatic
degenerative conditions in plaintiff’s spine to become symptomatic,
and in causing plaintiff’s neck pain, stiffness, spasms, and
restricted range of motion. “It is well settled that the aggravation
of an asymptomatic condition can constitute a serious injury” (Verkey
v Hebard, 99 AD3d 1205, 1206).




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
