        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
17
CA 11-01816
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.


ANDREA S. HEDGECOCK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LAURA PEDRO, ET AL., DEFENDANTS,
AND MELISSA SAJAC, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


ADAMS, HANSON, FINDER, HUGHES, REGO, KAPLAN & FISH, WILLIAMSVILLE
(BETHANY A. RUBIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

STEVEN M. COHEN, AMHERST, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Gerald J.
Whalen, J.), entered March 18, 2011 in a personal injury action. The
order denied the motion of defendant Melissa Sajac for summary
judgment dismissing the amended complaint.

     It is hereby ORDERED that the order so appealed from is modified
on the law by granting the motion of defendant Melissa Sajac in part
and dismissing the amended complaint against her insofar as it
alleges, as amplified by the bill of particulars, that plaintiff
sustained a serious injury under the permanent consequential
limitation of use and significant limitation of use categories 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 she sustained in four separate motor vehicle accidents that
occurred between September 2004 and November 2006. In each of the
accidents, the vehicle driven by plaintiff was rear-ended. Supreme
Court denied the motion of Melissa Sajac (defendant), who was involved
in the fourth accident, seeking summary judgment dismissing the
amended complaint against her on the ground that plaintiff did not
sustain a serious injury within the meaning of Insurance Law § 5102
(d).

     We conclude that the court properly determined that defendant
failed to meet her initial burden of establishing her entitlement to
judgment with respect to the 90/180-day category (see generally
Alvarez v Prospect Hosp., 68 NY2d 320, 324). We further conclude,
however, that the court erred in determining that plaintiff raised an
issue of fact sufficient to defeat the motion with respect to the
remaining categories of serious injury allegedly sustained by
plaintiff, i.e., the permanent consequential limitation of use and
                                 -2-                           17
                                                          CA 11-01816

significant limitation of use categories. We therefore modify the
order accordingly. Defendant established that plaintiff had
preexisting conditions of migraine headaches and spinal injuries,
which were allegedly exacerbated and/or caused by one or more of the
three previous accidents, and thus “plaintiff had the burden to come
forward with evidence addressing defendant’s claimed lack of
causation” with respect to the fourth accident (Carrasco v Mendez, 4
NY3d 566, 580; see Webb v Bock, 77 AD3d 1414, 1415). Although
plaintiff submitted the affidavit of her treating chiropractor, that
affidavit failed to specify how plaintiff’s conditions were caused or
further exacerbated by the fourth accident (see Webb, 77 AD3d at 1415;
cf. Hedgecock v Pedro [appeal No. 1], ___ AD3d ___ [Mar. 16, 2012];
see generally Carrasco, 4 NY3d at 579-580; Anania v Verdgeline, 45
AD3d 1473). Plaintiff’s treating neurologist discussed the combined
effect of all four accidents on her symptoms, and thus his affirmation
fails to raise a triable issue of fact whether the fourth accident
caused a serious injury (see Hedgecock, ___ AD3d at ___; see generally
Zuckerman v City of New York, 49 NY2d 557, 562).

    All concur except GORSKI, J., who is not participating.




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
