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

654
CA 15-00060
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


MOLLY R. COURTNEY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

HEATHER G. HEBELER AND L.E. HEBELER, JR.,
DEFENDANTS-APPELLANTS.


GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ROBERT E. SCOTT OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

MAXWELL MURPHY, LLC, BUFFALO (ALAN D. VOOS OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered April 4, 2014. The order, insofar as appealed
from, denied in part the motion of defendants for summary judgment
dismissing the complaint.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when the motor vehicle in which she
was a back-seat passenger was struck from behind by a vehicle operated
by defendant Heather G. Hebeler and owned by her husband, defendant
L.E. Hebeler, Jr. Following discovery, defendants moved for summary
judgment dismissing the complaint on the ground that plaintiff did not
sustain a serious injury in the accident within the meaning of
Insurance Law § 5102 (d). We conclude that Supreme Court properly
granted the motion only with respect to the 90/180 day category and
denied it with respect to the other two categories of serious injury
alleged by plaintiff, i.e., the permanent consequential limitation of
use and significant limitation of use categories.

     We conclude with respect to the permanent consequential
limitation of use category that defendants, by submitting their
expert’s medical report and the medical records referenced therein,
met their initial burden of demonstrating that plaintiff did not
sustain a permanent injury. In opposition to the motion, however,
plaintiff submitted an affirmation and related medical records from
one of her treating physicians, who opined that plaintiff’s accident-
related injuries would be “permanent in nature” and that he did not
“expect any change in her condition.” We conclude that “the proof
that plaintiff continue[s] to suffer from her accident-related
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                                                         CA 15-00060

injuries [over seven] years after the accident and that no change in
her condition [is] expected” raises an issue of fact whether her
injuries are permanent (Hawkins v Foshee, 245 AD2d 1091, 1091).

     With respect to the significant limitation of use category, we
conclude that defendants’ own submissions in support of the motion
raise an issue of fact (see Thomas v Huh, 115 AD3d 1225, 1225). Those
submissions included imaging studies demonstrating that plaintiff
suffered from a bulging disc, and that proof was “accompanied by
objective evidence of the extent of alleged physical limitations
resulting from the disc injury” (Kearse v New York City Tr. Auth., 16
AD3d 45, 49), i.e., medical records from plaintiff’s treating
physicians designating numeric percentages of plaintiff’s range of
motion losses (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
