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

396
CA 11-00950
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND SCONIERS, JJ.


ROBERT K. MONETTE AND SHARON M. MONETTE,
PLAINTIFFS-RESPONDENTS,

                    V                                     MEMORANDUM AND ORDER

CHRISTINA L. TRUMMER, DAVID LEEDERMAN, JESSE L.
BALL, DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.
(APPEAL NO. 2.)


BROWN & KELLY, LLP, BUFFALO (DONALD EPPERS OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

DWYER, BLACK & LYLE, LLP, OLEAN (JEFFREY A. BLACK OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from a resettled order of the Supreme Court, Cattaraugus
County (Michael L. Nenno, A.J.), entered March 30, 2011 in a personal
injury action. The resettled order granted that part of the motion of
plaintiffs for partial summary judgment on the issue of serious
injury.

     It is hereby ORDERED that the resettled order so appealed from is
unanimously reversed on the law without costs and the motion is denied
insofar as plaintiffs sought summary judgment on the issue whether
plaintiff Robert K. Monette sustained a serious injury under the
significant limitation of use category within the meaning of Insurance
Law § 5102 (d).

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Robert K. Monette (plaintiff) when a parked
vehicle in which he was sitting was rear-ended by a vehicle that the
owner, Jesse L. Ball, had permitted David Leederman to operate, and
which was operated during the subject accident by Christina L. Trummer
(collectively, defendants). Plaintiffs moved for, inter alia, partial
summary judgment on the issues of “liability” and serious injury. We
note at the outset, however, that this Court has determined that the
issue of liability “includes the issue of ‘serious injury’ ” (Ruzycki
v Baker, 301 AD2d 48, 52). Although Supreme Court in an earlier
order, from which no appeal was taken, purported to grant the motion
insofar as it sought partial summary judgment on the issue of
“liability” with respect to Trummer and Jesse Ball but reserved
decision on the issue whether plaintiff sustained a serious injury
within the meaning of Insurance Law § 5102 (d), the court actually
granted the motion only insofar as it sought partial summary judgment
                                 -2-                           396
                                                         CA 11-00950

on the issue of negligence rather than liability (see id.).
Defendants now appeal from a resettled order granting that part of the
motion for partial summary judgment on the issue of serious injury.
We further note at the outset that, although plaintiffs alleged
several categories of serious injury in their bill of particulars,
their appellate brief alleges only that plaintiff sustained a
significant limitation of use of his cervical spine. Plaintiffs
therefore are deemed to have abandoned their contentions with respect
to the remaining categories of serious injury (see Ciesinski v Town of
Aurora, 202 AD2d 984, 984).

     In support of that part of their motion on the issue of serious
injury, plaintiffs relied solely upon reports in which their medical
expert noted certain limitations in plaintiff’s range of cervical
motion, and opined that plaintiff sustained only a moderate orthopedic
disability and was able to perform his activities of daily living
without limitations. Thus, plaintiffs failed to meet their initial
burden on the issue of serious injury (see generally Zuckerman v City
of New York, 49 NY2d 557, 562). Plaintiff’s “own [physician]
concluded that [he] had only a minor limitation of movement in [his]
neck and back[,] and . . . a ‘minor, mild or slight limitation of use
[is] classified as insignificant within the meaning of the [no-fault]
statute’ ” (Gaddy v Eyler, 79 NY2d 955, 957; see Ray v Ficchi, 178
AD2d 988, 989, lv denied 80 NY2d 958; see generally Travis v Batchi,
18 NY3d 208, 219-220). Inasmuch as plaintiffs’ expert made “no
meaningful comparison so as to differentiate serious injuries from
mild or moderate ones, [his affidavit] was thus insufficient to
establish a significant limitation of use” (Peterson v Cellery, 93
AD3d 911, 913).

     In any event, even assuming, arguendo, that plaintiffs met their
burden on the issue of serious injury, we conclude that “defendants
raised an issue of fact . . . by submitting the report of the
physician who examined plaintiff on their behalf, wherein he concluded
that plaintiff’s ‘complaints’ resulted from a preexisting condition
and were not causally related to the accident” (Covert v Samuel, 53
AD3d 1147, 1149; see Schwartz v Vukson, 67 AD3d 1398, 1400; see
generally Carrasco v Mendez, 4 NY3d 566, 579).




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
