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

993
CA 12-00564
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


MICHAEL LIMARDI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BARBARA M. MCLEOD AND LESLIE S. MCLEOD,
DEFENDANTS-APPELLANTS.


THOMAS P. DURKIN, ROCHESTER, FOR DEFENDANTS-APPELLANTS.

SPADAFORA & VERRASTRO, LLP, BUFFALO (JOSEPH C. TODORO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Kevin M.
Dillon, J.), entered August 2, 2011 in a personal injury action. The
order, insofar as appealed from, granted that part of the motion of
plaintiff for summary judgment on the issue of negligence and denied
the cross motion of defendants for summary judgment on the issue of
serious injury.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of defendants’
cross motion for summary judgment dismissing the complaint insofar as
the complaint, as amplified by the bill of particulars, alleges that
plaintiff sustained a serious injury under the permanent loss of use
category of serious injury within the meaning of Insurance Law § 5102
(d) and dismissing the complaint to that extent, 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 by a vehicle
operated by defendant Barbara M. McLeod (defendant) and owned by
defendant Leslie S. McLeod. Plaintiff moved for partial summary
judgment on liability (see Ruzycki v Baker, 301 AD2d 48, 51), and
defendants cross-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). Supreme Court granted that
part of plaintiff’s motion on the issue of negligence, denied that
part of plaintiff’s motion on the issue of serious injury, and denied
the cross motion.

     We reject defendants’ contention that there is an issue of fact
with respect to plaintiff’s comparative negligence. Plaintiff met his
initial burden on the motion of establishing that defendant was
negligent as a matter of law and that her negligence was the sole
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                                                         CA 12-00564

proximate cause of the accident (see Whitcombe v Phillips, 61 AD3d
1431, 1431; Pomietlasz v Smith, 31 AD3d 1173, 1174). Specifically,
plaintiff established that defendant violated Vehicle and Traffic Law
§ 1141 by turning left at an intersection directly into the path of
plaintiff’s vehicle and that defendant’s failure to yield the right-
of-way was the sole proximate cause of the accident (see Waltz v Vink,
78 AD3d 1621, 1621-1622; Pomietlasz, 31 AD3d at 1174; Gabler v Marly
Bldg. Supply Corp., 27 AD3d 519, 520). In opposition to the motion,
defendants failed to raise a triable issue of fact whether plaintiff
was also negligent (see Pomietlasz, 31 AD3d at 1174; Berner v Koegel,
31 AD3d 591, 592; Maloney v Niewender, 27 AD3d 426, 426-427).
Defendants’ sole contention is that, because defendant could see
plaintiff’s vehicle approaching from two blocks away, plaintiff should
likewise have been able to observe defendant’s vehicle and to take
evasive action when defendant turned in front of him. However, “[t]he
record does not support [defendants’] contention that a triable issue
of fact exists as to whether the plaintiff was comparatively negligent
in the operation of [his] vehicle because []he failed to brake, sound
[his] horn, or otherwise try to avoid the collision” (Berner, 31 AD3d
at 592). “As . . . plaintiff had the right-of-way, []he was entitled
to anticipate that . . . defendant would obey the traffic laws, which
required . . . defendant to yield to . . . plaintiff’s vehicle” (id.
at 592-593; see Gabler, 27 AD3d at 520).

     Although the fact that defendant made a left turn in front of
plaintiff’s vehicle does not absolve plaintiff of the duty to exercise
reasonable care in proceeding through the intersection (see Halbina v
Brege, 41 AD3d 1218, 1219; Cooley v Urban, 1 AD3d 900, 900), there is
no evidence in this case that plaintiff failed to exercise such care
(cf. Halbina, 41 AD3d at 1219; Strasburg v Campbell, 28 AD3d 1131,
1132; Cooley, 1 AD3d at 900-901). Instead, plaintiff testified at his
deposition that he was not speeding, that his view of the intersection
was unobstructed, and that he did not see defendant’s vehicle until
the collision, and defendants offered only mere speculation to the
contrary (see Pomietlasz, 31 AD3d at 1174; Maloney, 27 AD3d at 427).
We thus conclude that the court properly granted that part of
plaintiff’s motion on the issue of negligence (see Waltz, 78 AD3d at
1621).

     Contrary to the further contention of defendants, we conclude
that there is an issue of fact whether plaintiff sustained a serious
injury under the significant limitation of use, permanent
consequential limitation of use, and 90/180 day categories. Even
assuming, arguendo, that defendants met their initial burden on the
cross motion with respect to each of those three categories of serious
injury, we conclude that plaintiff raised an issue of fact in
opposition. With respect to the permanent consequential limitation of
use and significant limitation of use categories, plaintiff submitted
objective evidence of injury to his neck and back, i.e., X rays, MRI
reports, and doctors’ observations of muscle spasms upon palpation of
his cervical and lumbar spine (see Toure v Avis Rent A Car Sys., 98
NY2d 345, 353; Nitti v Clerrico, 98 NY2d 345, 358; see also Mancuso v
Collins, 32 AD3d 1325, 1326). Among other things, an MRI of
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                                                         CA 12-00564

plaintiff’s lumbar spine revealed a disc herniation at L4-L5, which
plaintiff’s treating chiropractor opined was “100% causally related”
to the accident. Plaintiff further submitted records from several
medical providers quantifying range of motion losses in his cervical
and lumbar spine (see Austin v Rent A Ctr. E., Inc., 90 AD3d 1542,
1544).

     With respect to the 90/180 day category, plaintiff submitted
evidence establishing that he was out of work for approximately nine
months after the accident at the direction of his treating physicians,
after which he returned to work light duty. Additionally, plaintiff
testified at his deposition and averred in an affidavit that, after
the accident, he was unable to perform his customary job duties,
including lifting five-gallon buckets of paint, climbing ladders or
scaffolds, or kneeling, stooping, crouching, or extending his arms
over his head. Plaintiff further stated that he was “unable to do the
physical types of things that [he] could before th[e accident],”
including cleaning the house, shopping for groceries, doing laundry,
cutting the grass, and taking the garbage out. We thus conclude that
plaintiff raised an issue of fact whether he was prevented from
performing his usual and customary activities during the requisite
time period as a result of the accident (see Rissew v Smith, 89 AD3d
1383, 1384; see also Downs v Kehoe, 39 AD3d 1152, 1153; Zeigler v
Ramadhan, 5 AD3d 1080, 1081).

     We agree with defendants, however, that they established as a
matter of law that plaintiff did not sustain a serious injury under
the permanent loss of use category, i.e., that plaintiff did not
sustain a “ ‘total loss of use’ of a body organ, member, function or
system” (Schreiber v Krehbiel, 64 AD3d 1244, 1245, quoting Oberly v
Bangs Ambulance, 96 NY2d 295, 297), and that plaintiff failed to raise
a triable issue of fact in opposition (see Paveljack v Cirino, 93 AD3d
1286, 1286; Harris v Carella, 42 AD3d 915, 917). We therefore modify
the order accordingly.




Entered:   November 9, 2012                     Frances E. Cafarell
                                                Clerk of the Court
