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

798
CA 11-00209
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ.


LUCILLE M. BURKE, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

RYAN D. MORAN AND MARY E. MORAN,
DEFENDANTS-RESPONDENTS.


GROSSMAN & CIVILETTO, NIAGARA FALLS, HOGAN WILLIG, AMHERST (AMANDA L.
LOWE OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BURGIO, KITA & CURVIN, BUFFALO (JAMES P. BURGIO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered April 16, 2010 in a personal injury action. The
order granted the motion of defendants for summary judgment and
dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion in part and
reinstating the complaint, as amplified by the bill of particulars,
with respect to the permanent consequential limitation and significant
limitation of use categories of serious injury within the meaning of
Insurance Law § 5102 (d) and reinstating the claim for economic loss
in excess of basic economic loss, and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when the vehicle she was driving was
rear-ended by a vehicle operated by defendant Ryan D. Moran and owned
by defendant Mary E. Moran. Defendants initially 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) and thereafter, in their reply papers, sought dismissal of
plaintiff’s claim for economic loss in excess of her basic economic
loss. According to her bill of particulars, plaintiff sustained a
serious injury under the permanent loss of use, permanent
consequential limitation of use, significant limitation of use, and
the 90/180-day categories of serious injury. Plaintiff has abandoned
her contention with respect to permanent loss of use, and we conclude
that Supreme Court erred in granting those parts of defendants’ motion
with respect to the permanent consequential limitation of use and
significant limitation of use categories of serious injury. We
therefore modify the order accordingly.
                                 -2-                           798
                                                         CA 11-00209

     Defendants met their initial burden on the motion by submitting
an expert’s affirmation establishing as a matter of law that there was
no objective confirmation of plaintiff’s pain and that she had not
sustained “any objective injury which would have disabled her for more
than 90 out of 180 days following the motor vehicle accident” or any
objective injury that would constitute a “permanent consequential
limitation of use of a body organ or member,” or a “significant
limitation of use of a body function or system” (see Herbst v Marshall
[appeal No. 2], 49 AD3d 1194, 1195). Defendants also submitted
evidence indicating with respect to plaintiff’s cervical spine that
she had a “voluntary restriction of rotation,” “essentially normal”
neurological examinations and “advanced degenerative disc disease.”

     In opposition to defendants’ motion, however, plaintiff raised
triable issues of fact with respect to the permanent consequential
limitation and significant limitation of use categories of serious
injury by submitting an expert affidavit and medical records
demonstrating an objective basis for the reduced range of motion in
her neck and containing a “numeric percentage of [her] loss of range
of motion” (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350; see Howard
v Robb, 78 AD3d 1589; Feggins v Fagard, 52 AD3d 1221, 1223-1224; Moore
v Gawel, 37 AD3d 1158). Nevertheless, we agree with defendants that
the court properly granted that part of defendants’ motion regarding
the 90/180–day category of serious injury. With respect to that
category, plaintiff failed to raise an issue of fact whether she was
unable to perform substantially all of the material acts that
constituted her usual and customary daily activities during the
requisite period of time (see Licari v Elliott, 57 NY2d 230, 236;
Parkhill v Cleary, 305 AD2d 1088, 1089-1090).

     Finally, we conclude that the court further erred in granting
that part of defendants’ motion seeking to dismiss plaintiff’s claim
for economic loss in excess of basis economic loss, inasmuch as
defendants moved for that relief for the first time in their reply
papers (see Clearwater Realty Co. v Hernandez, 256 AD2d 100, 102;
Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624, 625-626). We
therefore further modify the order accordingly.




Entered:   June 17, 2011                       Patricia L. Morgan
                                               Clerk of the Court
