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

1316
CA 11-00785
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND SCONIERS, JJ.


ANDREA S. HEDGECOCK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LAURA PEDRO, ELLEN B. STERMAN,
CRAIG CHERTACK, DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.
(APPEAL NO. 1.)


BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANT-APPELLANT LAURA PEDRO.

LAW OFFICE OF LAURIE G. OGDEN, BUFFALO (PAMELA S. SCHALLER OF
COUNSEL), FOR DEFENDANTS-APPELLANTS ELLEN B. STERMAN AND CRAIG
CHERTACK.

HOGAN WILLIG, GETZVILLE (STEVEN M. COHEN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Erie County (Gerald
J. Whalen, J.), entered July 29, 2010 in a personal injury action.
The order denied the motions of defendants Laura Pedro, Ellen B.
Sterman and Craig Chertack for summary judgment dismissing the amended
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion of
defendant Laura Pedro for summary judgment dismissing the amended
complaint against her insofar as it alleges, as amplified by the bill
of particulars, that plaintiff sustained a serious injury under the
permanent consequential limitation of use category of serious injury
within the meaning of Insurance Law § 5102 (d) and dismissing the
amended complaint to that extent and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained in four separate motor vehicle accidents that
occurred between September 2004 and November 2006. In each of the
accidents, plaintiff’s vehicle was rear-ended. Supreme Court denied
the motion of Laura Pedro, the defendant involved in the first
accident, and the motion of Ellen B. Sterman and Craig Chertack
(collectively, Sterman defendants), the defendants involved in the
second accident, both of which sought summary judgment dismissing the
amended complaint on the ground that plaintiff did not sustain a
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                                                         CA 11-00785

serious injury within the meaning of Insurance Law § 5102 (d).

     We conclude that Pedro and the Sterman defendants each
established their entitlement to judgment as a matter of law with
respect to the categories of serious injury alleged by plaintiff,
i.e., permanent consequential limitation of use, significant
limitation of use and 90/180-day category. In support of their
motions, Pedro and the Sterman defendants submitted plaintiff’s
deposition testimony concerning her long-term preexisting condition of
chronic migraine headaches. With respect to the first accident,
plaintiff alleged that her migraine headaches increased in frequency
and intensity and that she suffered, inter alia, cervical sprain as a
result of the accident. With respect to the second accident, which
occurred less than two months later, plaintiff alleged that the
injuries she sustained in the first accident were exacerbated and that
she sustained lumbar sprain and subluxation. At her deposition,
plaintiff described her preexisting migraine headache condition and
two previous injuries to her back, i.e., compression fractures. We
therefore conclude that Pedro and the Sterman defendants each
submitted “persuasive evidence that plaintiff’s alleged pain and
injuries were related to . . . preexisting condition[s, and thus]
plaintiff had the burden to come forward with evidence addressing
[their] claimed lack of causation” (Carrasco v Mendez, 4 NY3d 566,
580; see D’Angelo v Litterer, 87 AD3d 1357).

     In opposition to the motions, plaintiff submitted her entire
deposition testimony, the affidavit of her treating chiropractor and
the affidavit of her treating neurologist. Inasmuch as the treating
neurologist discussed the combined effect of all four accidents on
plaintiff’s symptoms, his affidavit fails to raise a triable issue of
fact whether the first or second accident caused a serious injury (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). With
respect to the first accident, the affidavit of the treating
chiropractor detailed plaintiff’s worsening migraine symptoms
following that accident and noted that there were muscle tension and
trigger points upon palpation following that accident. The treating
chiropractor also stated that plaintiff’s symptoms improved prior to
the second accident, but that her medical condition had not returned
to the state it had been in immediately prior to the first accident.
With respect to the second accident, the treating chiropractor stated
that plaintiff’s symptoms had not improved with treatment prior to the
third accident, which occurred nearly one year after the second
accident, and he outlined the quantitative restrictions of the range
of motion of her cervical and lumbar spine, comparing those
restrictions to the normal range of motion (see Burke v Moran, 85 AD3d
1710, 1711; cf. Houston v Geerlings, 83 AD3d 1448, 1449-1450).
Further, plaintiff was granted a medical withdrawal from her graduate
studies immediately following the second accident based upon the
frequency and intensity of her migraine headaches, each of which
lasted up to 24 hours and prevented her from driving, attending
classes or doing household chores. Thus, we conclude that plaintiff
raised a triable issue of fact sufficient to defeat those parts of
each motion with respect to the significant limitation of use category
(see generally Roll v Gavitt, 77 AD3d 1412), as well as the 90/180-day
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                                                         CA 11-00785

category (see generally Houston, 83 AD3d at 1450). Because
plaintiff’s treating chiropractor stated that plaintiff’s symptoms had
not improved in the nearly one-year period between the second and
third accidents, we conclude that plaintiff also raised a triable
issue of fact sufficient to defeat that part of the Sterman
defendants’ motion with respect to the permanent consequential
limitation of use category (see generally Roll, 77 AD3d 1412). We
further conclude, however, that plaintiff failed to raise a triable
issue of fact sufficient to defeat that part of Pedro’s motion with
respect to the permanent consequential limitation of use category,
inasmuch as plaintiff’s treating chiropractor stated that her symptoms
improved prior to the second accident, and thus that the court erred
in denying the motion in its entirety. We therefore modify the order
accordingly.




Entered:   March 16, 2012                      Frances E. Cafarell
                                               Clerk of the Court
