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

85
CA 12-01321
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


MIGUEL A. FONSECA, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DENISE A. CRONK, DEFENDANT-APPELLANT.


LAW OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF COUNSEL),
FOR DEFENDANT-APPELLANT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (AMY M. VANDERLYKE OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(Donald A. Greenwood, J.), entered March 21, 2012 in a personal injury
action. The order denied 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 granting the motion in part and
dismissing the complaint, as amplified by the bill of particulars,
with respect to the permanent loss of use category 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 allegedly sustained in a motor vehicle accident when the
vehicle he was driving was rear-ended by a vehicle operated by
defendant. 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), and Supreme
Court denied the motion. As plaintiff correctly concedes on appeal,
there is no evidence that he sustained a serious injury under the
permanent loss of use category set forth in his bill of particulars
(see Oberly v Bangs Ambulance, 96 NY2d 295, 299). We therefore modify
the order accordingly.

     We reject defendant’s contention, however, that the court erred
in denying her motion with respect to the remaining categories of
serious injury alleged by plaintiff, i.e., permanent consequential
limitation of use and significant limitation of use. In support of
her motion, defendant asserted that those limitations were the result
of a degenerative condition in plaintiff’s cervical spine and thus
were not causally related to the subject accident (see generally
Pommells v Perez, 4 NY3d 566, 572). In support of the motion,
                                 -2-                            85
                                                         CA 12-01321

defendant submitted plaintiff’s medical records in which, inter alia,
one examining physician concluded that plaintiff had a normal range of
motion and had suffered from a cervical strain or sprain that had
resolved, while another examining physician noted substantial
limitations in plaintiff’s rotation and lateral bend that he concluded
were caused by unrelated degenerative changes rather than the subject
motor vehicle accident. We thus conclude that defendant met her
burden on the motion, “leaving for plaintiff the burden to present
objective medical proof of a serious injury causally related to the
accident in order to survive summary dismissal” (id. at 574). In
opposition to defendant’s motion, plaintiff submitted the affidavit of
his orthopedist, who opined that plaintiff “had a herniated disc at
C6-7 which protruded to the extent it came in contact with and
flattened the spinal cord,” which “herniated disc was, . . . to a
reasonable degree of medical certainty, caused by the accident of
March 5, 2007.” “It is well established that ‘conflicting expert
opinions may not be resolved on a motion for summary judgment’ ”
(Pittman v Rickard, 295 AD2d 1003, 1004; see Williams v Lucianatelli,
259 AD2d 1003, 1003). Thus, contrary to defendant’s contention in
support of her motion, plaintiff raised a triable issue of fact
whether there was a causal relationship between plaintiff’s
limitations and the subject accident.




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
