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

1297
CA 11-01246
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THERESA OVERHOFF AND DEAN OVERHOFF,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

SUNTA PERFETTO, DEFENDANT-APPELLANT.


BURGIO, KITA & CURVIN, BUFFALO (JAMES P. BURGIO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP, BUFFALO (HOWARD E. BERGER OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Paula L.
Feroleto, J.), entered June 7, 2011 in a personal injury action. The
order denied defendant’s motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the complaint is dismissed.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by Theresa Overhoff (plaintiff) when a
vehicle operated by defendant collided with a vehicle driven by
plaintiff. Supreme Court erred in denying defendant’s motion seeking
summary judgment dismissing the complaint on the ground that plaintiff
did not sustain a serious injury within the meaning of Insurance Law §
5102 (d). Defendant met her initial burden on the motion “by
submitting medical records and reports constituting ‘persuasive
evidence that plaintiff’s alleged pain and injuries were related to .
. . preexisting condition[s]’ ” rather than the instant accident
(Spanos v Fanto, 63 AD3d 1665, 1666). In particular, defendant
submitted the report of a physician who reviewed plaintiff’s medical
records and conducted a medical examination of plaintiff on
defendant’s behalf. The physician opined that plaintiff did not
sustain a serious injury in the accident at issue, that imaging
studies of plaintiff’s spine performed prior to and subsequent to the
instant accident were “essentially the same,” and that plaintiff had
no functional disability or limitations causally related to the
instant accident. The burden thus shifted to plaintiffs “to come
forward with evidence addressing defendant’s claimed lack of
causation” (Pommells v Perez, 4 NY3d 566, 580). Plaintiffs, however,
failed to meet that burden inasmuch as their submissions in opposition
to the motion “failed to address the manner in which plaintiff’s
                                 -2-                          1297
                                                         CA 11-01246

physical injuries were causally related to the accident in light of
[her] past medical history” (Smith v Besanceney, 61 AD3d 1336, 1337-
1338). In addition, the physician who examined plaintiff at the
request of her attorney failed to refute the opinion of defendant’s
expert that plaintiff did not sustain a functional disability or
limitation related to the accident by, for example, comparing
plaintiff’s pre- and post-accident range of motion restrictions in her
neck or back or assessing her pre- and post-accident qualitative
limitations (see Jaromin v Northrup, 39 AD3d 1264, 1265).




Entered:   February 10, 2012                    Frances E. Cafarell
                                                Clerk of the Court
