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

1348
CA 11-01405
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.


MARK AUSTIN, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

RENT A CENTER EAST, INC. AND JOSH R. ARNOLD,
DEFENDANTS-APPELLANTS.


HODGSON RUSS LLP, ALBANY (CHRISTIAN J. SOLLER OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

FARACI LANGE, LLP, ROCHESTER (CAROL A. MCKENNA OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Wayne County (Daniel
G. Barrett, A.J.), entered April 7, 2011 in a personal injury action.
The order denied the motion of defendants for summary judgment.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained when the vehicle he was driving
collided with a vehicle owned by defendant Rent A Center East, Inc.
and operated by defendant Josh R. Arnold. In his bill of particulars,
plaintiff alleged that he sustained a serious injury under the
permanent loss of use, permanent consequential limitation of use,
significant limitation of use, and 90/180-day categories set forth in
Insurance Law § 5102 (d), but plaintiff has now abandoned his
contention with respect to permanent loss of use (see Ciesinski v Town
of Aurora, 202 AD2d 984). We conclude that Supreme Court properly
denied defendants’ motion seeking summary judgment dismissing the
complaint on the ground that plaintiff did not sustain a serious
injury in the accident within the meaning of the three remaining
categories.

     Defendants met their initial burden on the motion by establishing
that plaintiff’s alleged injuries did not meet the serious injury
threshold under any of the three categories (see Toure v Avis Rent A
Car Sys., 98 NY2d 345, 351-353). Defendants submitted, inter alia,
the affirmation of an orthopedic surgeon who, after reviewing
plaintiff’s medical records and radiological studies and conducting an
examination of plaintiff, opined that there was no objective evidence
of a serious injury caused by the motor vehicle accident (see Herbst v
Marshall [appeal No. 2], 49 AD3d 1194, 1195; Zeigler v Ramadhan, 5
                                 -2-                          1348
                                                         CA 11-01405

AD3d 1080, 1081; Sewell v Kaplan, 298 AD2d 840). The surgeon further
opined that the degenerative changes to plaintiff’s cervical and
thoracic spine revealed in X rays and an MRI preexisted the motor
vehicle accident.

     In opposition to the motion, however, plaintiff raised triable
issues of fact whether he sustained a serious injury under each of the
three categories (see Herbst, 49 AD3d at 1195-1196; see generally
Testa v Allen, 289 AD2d 958). Plaintiff submitted the affirmation of
his treating orthopedic surgeon, who reviewed the results of X rays
and an MRI and opined that plaintiff sustained a cervical whiplash
injury, a cervical sprain, and a thoracic sprain in the accident. He
further opined that the accident aggravated and exacerbated
plaintiff’s preexisting, asymptomatic degenerative disease in his
cervical and thoracic spine, including disc protrusions at C5-6, C6-7
and T4-5. According to plaintiff’s treating orthopedic surgeon, the
aggravation of plaintiff’s preexisting cervical and thoracic
degenerative disease was the cause of his chronic pain, muscle spasms,
and range of motion restrictions, all of which prevented plaintiff
from, inter alia, working as a rural mail carrier. He opined that
plaintiff’s limitations were permanent in nature.

     Further, plaintiff submitted his medical records and the
depositions of his primary care providers establishing that, prior to
the accident, he had no back or neck complaints (see Perl v Meher, ___
NY2d ___, ___ [Nov. 22, 2011]). Plaintiff’s medical records also
reflect the presence of spasms upon palpation of plaintiff’s thoracic
spine, which constitutes objective evidence of injury (see Rissew v
Smith, 89 AD3d 1383; Mancuso v Collins, 32 AD3d 1325, 1325-1326;
Zeigler, 5 AD3d at 1081). In addition, plaintiff submitted reports
from several medical providers that quantified his loss of range of
cervical and thoracic motion (see Mancuso, 32 AD3d at 1326). Indeed,
a functional capacity evaluation conducted in December 2007 quantified
plaintiff’s range of motion restrictions and indicated that plaintiff
was unable to perform bending and squatting activities without support
and could lift only 10 pounds on a frequent basis or 15 pounds on an
occasional basis. With respect to the 90/180-day category, plaintiff
did not return to work after the accident upon the direction of his
treating physicians and, thus, plaintiff’s submissions raise an issue
of fact whether he was prevented from performing his usual and
customary activities during the requisite time period (see Zeigler, 5
AD3d at 1081; Sewell, 298 AD2d at 841-842).




Entered:   December 23, 2011                   Frances E. Cafarell
                                               Clerk of the Court
