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

16
CA 16-00858
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


MALLORY C. EHLERS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

WILLIAM A. BYRNES, ALL ERECTION AND CRANE
RENTAL CORP., DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANT.


CHIACCHIA & FLEMING, LLP, HAMBURG (LISA POCH OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

CARTAFALSA, SLATTERY, TURPIN & LENOFF, LLP, BUFFALO (BRIAN P. MINEHAN
OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


      Appeal from an order of the Supreme Court, Erie County (Matthew
J. Murphy, III, A.J.), entered July 14, 2015. The order granted the
motion of defendants William A. Byrnes and All Erection and Crane
Rental Corp. for summary judgment dismissing the complaint against
them.

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

     Memorandum: In this action to recover damages for injuries
allegedly sustained by plaintiff in an automobile accident, plaintiff
appeals from an order granting the motion of William A. Byrnes and All
Erection and Crane Rental Corp. (defendants) for summary judgment
dismissing the complaint against them on the ground that plaintiff did
not sustain a serious injury within the meaning of Insurance Law
§ 5102 (d) under the categories alleged by plaintiff, i.e., the
permanent consequential limitation of use, significant limitation of
use, and 90/180-day categories. We affirm.

     Contrary to plaintiff’s contention, we conclude that defendants
met their initial burden with respect to the permanent consequential
limitation and significant limitation of use categories by submitting
the affirmed report of a physician who, upon examining plaintiff at
defendants’ request, opined, inter alia, that plaintiff sustained a
self-limiting cervicothoracic strain from which she would have
recovered in a few weeks after the accident and that plaintiff’s other
symptoms and complaints were related to a preexisting degenerative
condition not caused by the accident (see Roll v Gavitt, 77 AD3d 1412,
1412). We agree with plaintiff that Supreme Court erred in declining
to consider unsworn medical reports submitted in opposition to
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                                                         CA 16-00858

defendants’ motion, inasmuch as they were referenced and relied upon
by defendants’ examining physician and thus were properly before the
court (see Brown v Achy, 9 AD3d 30, 32). Nonetheless, upon our review
and consideration of those reports and the entire record, we conclude
that none of plaintiff’s submissions raises a triable issue of fact
(see generally Zuckerman v City of New York, 49 NY2d 557, 562). To
the extent that the opinion of plaintiff’s primary care physician that
the accident triggered, aggravated, and/or exacerbated certain
preexisting conditions is responsive to defendants’ prima facie
showing of entitlement to judgment on these two categories, we
conclude that the primary care physician’s opinion, even when read in
combination with other records and reports, “failed to provide any
basis for determining the extent of any exacerbation of plaintiff’s
prior injuries” (Brand v Evangelista, 103 AD3d 539, 540; see Howard v
Espinosa, 70 AD3d 1091, 1093-1094; Nowak v Breen, 55 AD3d 1186, 1188).

     Defendants also made a prima facie showing of the lack of a
viable 90/180-day claim by relying on the aforementioned report of
their examining physician and plaintiff’s deposition testimony that
she returned to work after missing one day following the accident,
missed about eight weeks from work after returning, and was not
directed by her physicians to restrict her activities for the
requisite period of time (see Reyes v Se Park, 127 AD3d 459, 461). In
opposition, plaintiff failed to raise a triable issue of fact (see
generally Zuckerman, 49 NY2d at 562).

     In light of the acknowledgment in plaintiff’s reply brief that
prior to the accident she had received treatment for upper-back and
neck pain, we need not address plaintiff’s contention that the court
engaged in improper credibility assessment in the context of a summary
judgment motion by comparing her deposition testimony to her
chiropractic treatment records.




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
