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

1174
CA 16-00478
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


TAMMY GRIER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ACEA M. MOSEY, AS VOLUNTARY ADMINISTRATOR
FOR THE ESTATE OF TARA L. HALLAM AND
DAVID C. MOORE, DEFENDANTS-APPELLANTS.


RUPP, BAASE, PFALZGRAF, CUNNINGHAM LLC, BUFFALO (KEVIN J. KRUPPA OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

PETER M. JASEN, P.C., BUFFALO (PETER M. JASEN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Henry J.
Nowak, Jr., J.), entered November 4, 2015. The order, insofar as
appealed from, denied in part the motion of defendants for summary
judgment.

     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 sustained when her vehicle was struck from behind by a
vehicle operated by Tara L. Hallam (decedent) and owned by defendant
David C. Moore (Moore). Moore and defendant Acea M. Mosey, as
voluntary administrator for decedent’s estate, moved for summary
judgment dismissing the complaint on the ground that plaintiff did not
sustain a serious injury within the meaning of Insurance Law § 5102
(d). Defendants appeal from an order that granted their motion only
in part, dismissing plaintiff’s claims under four of the six
categories of serious injury alleged by her. We reject defendants’
contention that the court erred in denying the motion with respect to
the two remaining categories, i.e., permanent consequential limitation
of use and significant limitation of use.

     Although defendants met their initial burden on the motion by
submitting “competent medical evidence establishing as a matter of law
that plaintiff did not sustain a serious injury under either of those
categories” (Robinson v Polasky, 32 AD3d 1215, 1216; see generally
Zuckerman v City of New York, 49 NY2d 557, 562), plaintiff raised a
triable issue of fact whether she sustained a serious injury under
both categories (see Strangio v Vasquez, 144 AD3d 1579, 1580;
Pastuszynski v Lofaso, 140 AD3d 1710, 1711). “Whether a limitation of
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                                                         CA 16-00478

use or function is ‘significant’ or ‘consequential’ (i.e., important .
. .) relates to medical significance and involves a comparative
determination of the degree or qualitative nature of an injury based
on the normal function, purpose and use of the body part” (Dufel v
Green, 84 NY2d 795, 798). Here, in opposition to the motion,
plaintiff submitted evidence that she sustained limitations to the
range of motion of her cervical spine exceeding 20% when compared to
the normal range of motion. Injuries to that degree have been deemed
serious injuries within the meaning of Insurance Law § 5102 (d) (see
e.g. Garner v Tong, 27 AD3d 401, 401; Mazo v Wolofsky, 9 AD3d 452,
453; Campbell v Cloverleaf Transp., 5 AD3d 169, 170; cf. Baker v
Donahue, 199 AD2d 661, 661). Further, plaintiff submitted the
affirmation of her orthopedic surgeon, who treated plaintiff for two
years following the accident and concluded that plaintiff’s condition
is permanent and that the only medical option remaining is surgery.

     Defendants also contend that they are entitled to summary
judgment dismissing the complaint because plaintiff’s injuries
resulted from a preexisting condition and did not constitute the
aggravation or exacerbation of a preexisting injury. We reject that
contention inasmuch as one of defendants’ experts stated that “[t]here
is no evidence of any contributing preexisting condition” (see Tate v
Brown, 125 AD3d 1397, 1398; Gawron v Town of Cheektowaga, 125 AD3d
1467, 1468). In any event, plaintiff raised a triable issue of fact
whether her injuries were caused by the accident inasmuch as her
treating orthopedic surgeon concluded in his affirmation that the
accident was the “competent and producing cause” of plaintiff’s spinal
condition (see LoGrasso v City of Tonawanda, 87 AD3d 1390, 1391), and
that the accident “activated latent degenerative conditions in
[plaintiff’s] cervical spine causing them to be symptomatic,” i.e.,
that the accident exacerbated a preexisting condition (see generally
Houston v Geerlings, 83 AD3d 1448, 1450). Contrary to defendants’
contention, “even though plaintiff did not plead the aggravation or
exacerbation of a preexisting injury, defendant[s themselves] raised
that issue in [their] motion papers and thus plaintiff could properly
rely on that theory in opposition to the motion” (id. at 1448-1449).




Entered:   March 31, 2017                       Frances E. Cafarell
                                                Clerk of the Court
