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

1017
CA 13-00389
PRESENT: SMITH, J.P., SCONIERS, VALENTINO, AND WHALEN, JJ.


ANTHONY P. FANTI AND DEBORAH FANTI,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

RYAN L. MCLAREN AND STACY MCLAREN,
DEFENDANTS-APPELLANTS.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (MICHAEL J. CHMIEL OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

FREID AND KLAWON, WILLIAMSVILLE (WAYNE I. FREID OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered October 23, 2012. The order, insofar as
appealed from, denied the motion of defendants 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: In this action commenced by plaintiffs to recover
damages for injuries allegedly sustained by Anthony P. Fanti
(plaintiff) in an automobile accident, defendants appeal from an order
denying their 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). We conclude that Supreme
Court properly denied the motion with respect to the permanent
consequential limitation of use, significant limitation of use, and
90/180-day categories of serious injury. “It is well settled that the
aggravation of an asymptomatic condition can constitute a serious
injury” (Verkey v Hebard, 99 AD3d 1205, 1206). Here, defendants’ own
submissions, including plaintiff’s deposition testimony, raise triable
issues of fact whether, under those three categories, “the accident
aggravated and exacerbated plaintiff’s pre-existing, asymptomatic
degenerative disease in his [lumbosacral] spine” (Austin v Rent A Ctr.
E., Inc., 90 AD3d 1542, 1543; see Hint v Vaugh, 100 AD3d 1519, 1520).
Finally, plaintiffs have abandoned the permanent loss of use category
of serious injury alleged in their bill of particulars (see Austin, 90
                                 -2-                          1017
                                                         CA 13-00389

AD3d at 1543; see also Yoonessi v Givens, 39 AD3d 1164, 1165), and we
therefore modify the order accordingly.




Entered:   October 4, 2013                     Frances E. Cafarell
                                               Clerk of the Court
