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

283
CA 15-01327
PRESENT: WHALEN, P.J., CENTRA, CARNI, DEJOSEPH, AND TROUTMAN, JJ.


LATANYA Y. STAMPS AND RONALD STAMPS, JR.,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

PATRICK D. PUDETTI, DEFENDANT-APPELLANT.


CONNORS CORCORAN & BUHOLTZ PLLC, ROCHESTER (EILEEN E. BUHOLTZ OF
COUNSEL), FOR DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., ROCHESTER (RICHARD P. AMICO OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Thomas
A. Stander, J.), entered December 16, 2014. The order, insofar as
appealed from, denied in part the motion of defendant for summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating that part of the written
decision entered December 16, 2014 finding that plaintiff raised
triable issues of fact on the significant disfigurement category of
serious injury and as modified the order is affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
personal injuries allegedly sustained by Latanya Y. Stamps (plaintiff)
when a vehicle operated by defendant rear-ended the vehicle being
operated by plaintiff. In their original bill of particulars,
plaintiffs alleged that plaintiff had suffered various injuries
including a “cervical sprain and strain,” a “lumbosacral strain and
sprain,” disc bulging and disc protrusions at various levels of the
cervical spine, narrowing of the spinal canal, and neural foraminal
stenosis. Plaintiffs further alleged that plaintiff suffered a
serious injury under the permanent consequential limitation of use and
significant limitation of use categories of serious injury (see
Insurance Law § 5102 [d]). In a separate order preceding the order on
this appeal, Supreme Court awarded plaintiffs partial summary judgment
on the issue of negligence.

     Before that order was entered, however, defendant filed the
instant motion for summary judgment seeking dismissal of plaintiffs’
complaint for failure to meet the serious injury threshold and for
failure to incur economic loss exceeding basic economic loss. In
opposition to the motion, plaintiffs submitted, inter alia, a
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“supplemental verified bill of particulars” in which they added an
allegation that plaintiff had sustained a serious injury under the
significant disfigurement category of serious injury (Insurance Law
§ 5102 [d]). Defendant objected to plaintiffs’ attempt to
“ ‘supplement’ ” their bill of particulars in opposition to the
motion.

     Supreme Court granted defendant’s motion insofar as it concerned
plaintiffs’ claims for economic loss, but denied the motion “in all
other respects.” In its decision supporting the order, the court
wrote that the evidence submitted by plaintiffs raised triable issues
of fact on all three categories of serious injury. Only defendant
appeals.

     We agree with defendant that plaintiffs improperly asserted a
“new injury” in their “supplemental verified bill of particulars”
(CPLR 3043 [b]; see Schreiber v University of Rochester Med. Ctr., 74
AD3d 1812, 1812; cf. CPLR 3042 [b]; Tate v Colabello, 58 NY2d 84, 86-
87), and that the court erred in considering that new category of
serious injury inasmuch as it was raised for the first time in
opposition to defendant’s motion for summary judgment (see Christopher
V. v James A. Leasing, Inc., 115 AD3d 462, 462; see also Guzek v B & L
Wholesale Supply, Inc., 126 AD3d 1506, 1507; Robinson v Schiavoni, 249
AD2d 991, 992). We thus conclude that the claim of significant
disfigurement was not cognizable by the court (see Torres v Dwyer, 84
AD3d 626, 626), that it was error for the court to consider the new
injury claim (see Christopher V., 115 AD3d at 462), and that the court
should have disregarded evidence related to that category of serious
injury (see MacDonald v Meierhoffer, 13 AD3d 689, 689). To the extent
that the court’s order incorporated the court’s written decision
addressing the merits of that category of serious injury, we vacate
that part of the court’s order.

     We nevertheless agree with plaintiff that the court properly
denied defendant’s motion for summary judgment with respect to the
permanent consequential limitation of use and significant limitation
of use categories of serious injury. Even assuming, arguendo, that
defendant met his initial burden on the motion, we conclude that
plaintiffs raised triable issues of fact by submitting the reports of
treating physicians and independent medical examiners “who relied upon
objective proof of plaintiff’s injury, provided quantifications of
plaintiff’s loss of range of motion along with qualitative assessments
of plaintiff’s condition, and concluded that ‘plaintiff’s injur[ies]
[were] significant, permanent, and causally related to the accident’ ”
(Moore v Gawel, 37 AD3d 1158, 1159; see Frazier v Keller, 64 AD3d
1161, 1162; Harris v Carella, 42 AD3d 915, 916; see generally Toure v
Avis Rent A Car Sys., 98 NY2d 345, 350). Contrary to defendant’s
contention, to the extent that there may have been a gap in treatment
between October 2010 and June 2011, that purported gap is not fatal to
plaintiff’s claims where, as here, plaintiff explained that her
insurance could not cover her treatment anymore, and that she was
therefore compelled to pay for it herself (see Ramkumar v Grand Style
Transp. Enters. Inc., 22 NY3d 905, 906-907, rearg denied 22 NY3d 1102;
Garza v Taravella, 74 AD3d 1802, 1803; cf. Smyth v McDonald, 101 AD3d
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                                                         CA 15-01327

1789, 1790-1791).

     Finally, we conclude that, contrary to defendant’s contention,
the court did not err in considering the affirmed expert report of a
certified orthopedic spinal surgeon, which was submitted by plaintiffs
in opposition to defendant’s motion. Inasmuch as that expert report
constitutes the affirmed statement of a physician, it has “the same
force and effect as an affidavit” (CPLR 2106 [a]). Moreover, because
the surgeon also holds a Ph.D. in mechanical and aerospace
engineering, he was “qualified to offer an opinion regarding the
biomechanics or physics of the collision” (Russell v Pulga-Nappi, 94
AD3d 1283, 1284; see Anderson v Persell, 272 AD2d 733, 735).




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
