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

254
CA 16-01395
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.


JACOB MARTINEZ, PLAINTIFF-APPELLANT-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CITY OF BUFFALO, CITY OF BUFFALO DEPARTMENT OF
PUBLIC WORKS, PARKS AND STREETS, AND THOMAS ALAN
GILL, DEFENDANTS-RESPONDENTS-APPELLANTS.


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-APPELLANT-RESPONDENT.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Donna M. Siwek, J.), entered November 9, 2015. The order
denied that part of the motion of plaintiff seeking summary judgment
on the issue of negligence, granted that part of the motion of
plaintiff seeking summary judgment on the issue of serious injury and
determined that the reckless disregard standard of Vehicle and Traffic
Law § 1103 (b) applies in this case.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the second ordering
paragraph and by denying plaintiff’s motion with respect to the
90/180-day category of serious injury, and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he was struck by a snowplow while he was
operating his own motor vehicle in the lane adjacent to the snowplow.
The snowplow was operated by defendant Thomas Alan Gill, who was
employed by defendant City of Buffalo (City). In attempting to make a
U-turn with the snowplow, Gill proceeded into plaintiff’s lane of
travel, and the two vehicles collided. Plaintiff moved for partial
summary judgment on the issues of negligence and serious injury.
Supreme Court granted plaintiff’s motion with respect to the issue of
serious injury, determined that the “reckless disregard for the safety
of others” standard contained in Vehicle and Traffic Law § 1103 (b)
applied to the operation of the snowplow, and denied plaintiff’s
motion with respect to the issue of negligence. Plaintiff appeals
with respect to the issue of reckless disregard, and defendants cross-
appeal with respect to the issue of serious injury. We conclude that
there are issues of fact with respect to whether the reckless
                                 -2-                           254
                                                         CA 16-01395

disregard standard applies, and that plaintiff did not meet his
initial burden with respect to the 90/180-day category of serious
injury, and we therefore modify the order accordingly.

      We begin by observing that, although defendants did not move for
summary judgment on the issue of reckless disregard, it is well
settled that a court deciding a motion for summary judgment is
empowered to search the record and may, even in the absence of a cross
motion, grant summary judgment to a nonmoving party (see generally
CPLR 3212 [b]; Horst v Brown, 72 AD3d 434, 437, appeal dismissed 15
NY3d 743). Although the court’s search of the record is limited to
those causes of action or issues that are the subject of the motion
(see Mercedes-Benz Credit Corp. v Dintino, 198 AD2d 901, 901-902),
here plaintiff’s motion sought to have the court apply the ordinary
negligence standard. Thus, we conclude that the court was authorized
to reach the reckless disregard issue and grant summary judgment in
favor of the nonmoving party. However, we conclude that issues of
fact with respect to whether the snowplow was a vehicle “actually
engaged in work on a highway” at the time of the accident preclude
summary judgment on that issue (Vehicle and Traffic Law § 1103 [b];
see O’Keeffe v State of New York, 40 AD3d 607, 608). Although Gill
testified at his examination before trial that he was “done checking
the area” and was not plowing, salting, or sanding the roadway at the
time of the accident, plaintiff testified at his General Municipal Law
§ 50-h hearing that, shortly before the accident, the snowplow was
salting the road and had its hazard lights engaged. At another point
in his testimony, Gill stated that, shortly before the accident, he
was checking the road for ice build-up, but that he could not recall
if he was salting the road at the time of the accident. Gill also
testified that his destination at the time of the accident was a local
park where he would “take a break,” but the record fails to establish
if the snowplow was actually on a City street or a town road at the
time of the accident and also fails to establish the precise route
that Gill was assigned to service that day. In light of those
conflicting descriptions of the circumstances surrounding the
accident, we conclude that it cannot be determined as a matter of law
on this record that the snowplow was “actually engaged in work on a
highway” at the time of the accident (Vehicle and Traffic Law § 1103
[b]).

     Even though the court granted plaintiff’s motion on the issue of
serious injury, it failed to specify under which category of serious
injury plaintiff is entitled to recover. According to plaintiff, he
sustained a serious injury under the permanent consequential
limitation of use, significant limitation of use, and 90/180-day
categories set forth in Insurance Law § 5102 (d). Defendants do not
challenge plaintiff’s assertion that he met his initial burden with
respect to the categories of permanent consequential limitation of use
and significant limitation of use. Rather, defendants contend that
they raised issues of fact with respect to those categories by
submitting the report of a chiropractor who conducted an independent
medical examination of plaintiff approximately five months after the
accident. In his report, the chiropractor opined that plaintiff was
suffering from only cervical and lumbar “strain/sprain,” and that
                                 -3-                           254
                                                         CA 16-01395

plaintiff “is able to return to pre-loss activity levels” and “capable
of working and performing all of his usual activities of daily living
without restrictions.” We note, however, that the chiropractor failed
to address or reconcile his opinions with the cervical MRI studies
that reveal a small central C3-4 disc herniation, a right paracentral
C5-6 disc herniation, and a left paracentral C6-7 disc herniation, all
of which impinge in varying degrees on the anterior aspect of the
thecal sac. The chiropractor also failed to address in his report the
cervical spine surgery that plaintiff underwent in 2014, and failed to
address or reconcile his opinions with the EMG study that established
right C6 radiculopathy in plaintiff’s upper extremity. We conclude
that such deficiencies in the report of defendants’ expert
chiropractor render the opinions therein conclusory, speculative, and
insufficient to raise an issue of fact with respect to the serious
injury categories of permanent consequential limitation of use and
significant limitation of use (see Corcione v John Dominick Cusumano,
Inc., 84 AD3d 1010, 1011; Frias v James, 69 AD3d 466, 467).

     With respect to the 90/180-day category, it is undisputed that
plaintiff’s medical providers were unanimous in their opinions that
all of plaintiff’s injuries are permanent in nature. Thus, on this
record, plaintiff failed to meet his initial burden of demonstrating
“a medically determined injury or impairment of a non-permanent
nature” with respect to the 90/180-day category (Insurance Law § 5102
[d]). This is not to say that a 90/180-day category injury cannot
coexist with a permanent consequential limitation of use injury, but
rather that the medical evidence submitted by plaintiff establishes
that none of his injuries are of a nonpermanent nature.




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