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

309
CA 15-01598
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


MARC J. NYHLEN AND STEPHANIE L. ADAMS-NYHLEN,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                               MEMORANDUM AND ORDER

TIMOTHY J. GILES, DEFENDANT-APPELLANT-RESPONDENT.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KEVIN E. LOFTUS OF
COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.

LAW OFFICES OF EUGENE C. TENNEY, PLLC, BUFFALO (EDWARD J. SCHWENDLER,
III, OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Shirley Troutman, J.), entered March 2, 2015. The order
denied the motion of defendant for summary judgment.

     It is hereby ORDERED that said cross appeal is unanimously
dismissed and the order is affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by Marc J. Nyhlen (plaintiff) when his
vehicle was rear-ended by a vehicle operated by defendant. Plaintiff
alleged that, as a result of the accident, he sustained a serious
injury under the permanent consequential limitation of use,
significant limitation of use and 90/180-day categories (see Insurance
Law § 5102 [d]). Defendant appeals from an order denying his motion
seeking summary judgment dismissing the complaint on the ground that
plaintiff’s injuries were preexisting, and that plaintiff did not
sustain a qualifying injury as a result of the accident. As a
preliminary matter, we dismiss plaintiffs’ cross appeal because they
were not aggrieved by the order on appeal (see Parochial Bus Sys. v
Board of Educ. of City of N.Y., 60 NY2d 539, 544-545; Lillie v
Wilmorite, Inc., 92 AD3d 1221, 1222).

     We agree with plaintiffs that Supreme Court properly denied the
motion because defendant failed to meet his initial burden of
establishing that plaintiff did not sustain a qualifying injury as a
result of the accident (see generally Zuckerman v City of New York, 49
NY2d 557, 562). Addressing first the significant limitation of use
category, we note that defendant submitted plaintiff’s deposition
testimony and medical records establishing that he had, inter alia,
preexisting injuries to the cervical and lumbar spine, as well as the
report of an IME physician who opined that plaintiff sustained only a
                                 -2-                           309
                                                         CA 15-01598

cervical and lumbar strain as a result of the accident. Nevertheless,
defendant also submitted the reports of plaintiff’s treating
physician, who stated that plaintiff’s cervical injuries were
“markedly exacerbated” by the accident and that the lumbar injuries
were “solely the result of his motor vehicle accident.” The reports
also provide quantitative assessments of plaintiff’s limited range of
motion. Thus, defendant failed to eliminate all issues of fact
whether plaintiff sustained a significant limitation of use of the
cervical and lumbar spine as a result of the accident (see Clark v
Aquino, 113 AD3d 1076, 1076; Pugh v Tantillo, 101 AD3d 1658, 1658-
1659).

     With respect to the 90/180-day category, defendant also submitted
plaintiff’s medical records stating that his level of disability
varied from between 50% and 100% for 18 months following the accident.
Thus, based upon the physician reports and medical records, together
with plaintiff’s deposition testimony, we conclude that defendant
failed to eliminate all issues of fact concerning that category (see
Clark, 113 AD3d at 1078). Finally, based upon the same reports and
records, we conclude that defendant failed to eliminate all issues of
fact with respect to the permanent consequential limitation of use
category (see id. at 1077; Hedgecock v Pedro, 93 AD3d 1250, 1252).




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
