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

415
CA 13-01820
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


DENISE APPLEBEE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MARY BECK, DEFENDANT-APPELLANT.


SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN KROGMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM MATTAR, P.C., WILLIAMSVILLE (APRIL J. ORLOWSKI OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(Deborah H. Karalunas, J.), entered August 7, 2013. The order denied
the motion of defendant 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: In this action to recover damages for injuries that
plaintiff allegedly sustained as the result of a motor vehicle
accident, defendant appeals from an order denying her motion for
summary judgment dismissing the complaint. In support of her motion,
defendant alleged, inter alia, that plaintiff did not sustain a
serious injury as a result of the accident within the meaning of
Insurance Law § 5102 (d), i.e., under the permanent consequential
limitation of use, significant limitation of use, or 90/180-day
categories. We agree with defendant that Supreme Court erred in
denying the motion.

     Defendant met her initial burden of establishing as a matter of
law that plaintiff’s injuries do not qualify under the above
categories of serious injury by submitting plaintiff’s medical
records, plaintiff’s deposition testimony, and the affidavit and
affirmed report of the physician who examined plaintiff on defendant’s
behalf. Notably, the physician opined that the alleged injuries were
not causally related to the accident but instead were the result of
plaintiff’s preexisting degenerative disc disease (see Dorrian v
Cantalicio, 101 AD3d 578, 578; Carfi v Forget, 101 AD3d 1616, 1617-
1618; Hartley v White, 63 AD3d 1689, 1690).

     The burden then shifted to plaintiff to submit competent medical
evidence, based on objective findings and diagnostic tests, raising a
                                 -2-                           415
                                                         CA 13-01820

triable issue of fact (see Franchini v Palmieri, 307 AD2d 1056, 1057,
affd 1 NY3d 536; Yoonessi v Givens, 39 AD3d 1164, 1165). In
particular, in light of defendant’s “persuasive evidence that
plaintiff’s alleged pain and injuries were related to a preexisting
condition, plaintiff had the burden to come forward with evidence
addressing defendant’s claimed lack of causation” (Carrasco v Mendez,
4 NY3d 566, 580; see Lux v Jakson, 52 AD3d 1253, 1254; cf. Herbst v
Marshall [appeal No. 2], 49 AD3d 1194, 1195; Coleman v Wilson, 28 AD3d
1198, 1198). Plaintiff failed to meet her burden (see generally
Zuckerman v City of New York, 49 NY2d 557, 562). Indeed, plaintiff
failed to submit any expert medical evidence in opposition to the
motion, and thus failed to “address the conclusion of defendant’s
expert that the changes in the spine of plaintiff were degenerative in
nature” (Briody v Melecio, 91 AD3d 1328, 1329). We reject plaintiff’s
contention that the evidence establishing that she had bulging discs
is sufficient to raise a triable issue of fact whether she sustained a
serious injury under one of the three asserted categories of serious
injury. Even assuming, arguendo, that she raised an issue of fact
whether she had bulging discs that were causally related to the motor
vehicle accident at issue, we note that “[p]roof of a herniated [or
bulging] disc, without additional objective medical evidence
establishing . . . significant physical limitations, is not alone
sufficient to establish a serious injury” (Pommells v Perez, 4 NY3d
566, 574; see Carfi, 101 AD3d at 1618).




Entered:   June 13, 2014                       Frances E. Cafarell
                                               Clerk of the Court
