               SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1027
CA 11-00581
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ.


MICHAEL RISSEW AND DEBORAH RISSEW,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

MARK L. SMITH AND TRISHIA BARKER,
DEFENDANTS-APPELLANTS.


MURA & STORM, PLLC, BUFFALO (KRIS E. LAWRENCE OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (David
Michael Barry, J.), entered September 30, 2010 in a personal injury
action. The order, insofar as appealed from, denied the motion of
defendants for summary judgment.

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

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by Michael Rissew (plaintiff) when the
motor vehicle operated by plaintiff collided with a vehicle owned by
defendant Trishia Barker and operated by defendant Mark L. Smith.
Defendants moved for summary judgment dismissing the complaint on the
ground that plaintiff did not sustain a serious injury within the
meaning of the three categories alleged in the complaint, as amplified
by the bill of particulars, and Supreme Court denied defendants’
motion.

     We agree with defendants that the court erred in denying those
parts of the motion with respect to the permanent consequential
limitation of use and significant limitation of use categories of
serious injury. Defendants met their initial burden on the motion by
submitting, inter alia, “[two] affirmed report[s] of a physician who
examined plaintiff . . . and concluded that there was no objective
evidence that plaintiff sustained a serious injury as a result of the
accident” (Lauffer v Macey, 74 AD3d 1826, 1827). In opposition to the
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                                                         CA 11-00581

motion, plaintiffs failed to raise a triable issue of fact whether
plaintiff sustained a serious injury under those two categories (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). We
therefore modify the order accordingly.

     We further conclude, however, that the court properly denied the
motion with respect to the 90/180-day category of serious injury.
Although defendants established their entitlement to judgment as a
matter of law with respect to that category (see generally id.),
plaintiffs submitted evidence raising a triable issue of fact whether
plaintiff sustained a qualifying injury or impairment thereunder (see
Nitti v Clerrico, 98 NY2d 345, 357). Specifically, plaintiffs
submitted the affidavit and records of plaintiff’s chiropractor
demonstrating, inter alia, that plaintiff sustained a loss of range of
motion in his cervical and lumbar spine and localized edema in his
cervical spine and muscle spasms, and the detection of spasms through
cervical palpation constitutes medically objective evidence of
plaintiff’s injury (see id.; Pugh v DeSantis, 37 AD3d 1026, 1028).
Plaintiffs also established that plaintiff was unable to perform
substantially all of his customary and usual activities for not less
than 90 days during the 180 days immediately following the accident at
issue (see generally Herbst v Marshall [appeal No. 2], 49 AD3d 1194,
1196).

     All concur except MARTOCHE, J., who dissents in part and votes to
reverse the order insofar as appealed from in accordance with the
following Memorandum: I respectfully dissent in part and would
reverse the order insofar as appealed from, grant defendants’ motion
and dismiss the complaint. I agree with the majority that Supreme
Court erred in denying those parts of defendants’ motion with respect
to the permanent consequential limitation of use and significant
limitation of use categories of serious injury. As the majority
properly notes, defendants met their initial burden of establishing
that there was no objective evidence that Michael Rissew (plaintiff)
sustained a serious injury as a result of the accident within the
meaning of those two categories (see Lauffer v Macey, 74 AD3d 1826,
1827). I further agree with the majority that, in opposition,
plaintiffs failed to raise a triable issue of fact to defeat those
parts of defendants’ motion.

     I cannot agree with the majority, however, that plaintiffs raised
an issue of fact to defeat that part of defendants’ motion with
respect to the 90/180-day category of serious injury. The majority
concludes, and I agree, that defendants met their initial burden by
establishing their entitlement to judgment as a matter of law with
respect to that category, but the majority further concludes that
plaintiffs submitted evidence raising a triable issue of fact whether
plaintiff sustained a qualifying injury or impairment under that
category. In my view, the majority’s reliance on Nitti v Clerrico (98
NY2d 345) is misplaced. There, the Court of Appeals concluded that,
“[a]lthough medical testimony concerning observations of a spasm can
constitute objective evidence in support of a serious injury, the
spasm must be objectively ascertained” (id. at 357). I cannot agree
with the majority that the spasm in this case was objectively
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                                                         CA 11-00581

ascertained by plaintiff’s chiropractor. Although the chiropractor
indicated that he detected the spasm through “palpation,” he did not
identify any diagnostic technique that he used to induce the spasm
(see MacMillan v Cleveland, 82 AD3d 1388, 1391 [Mercure, J.,
dissenting, in which Malone, Jr., J. concurs]; see also Tuna v
Babendererde, 32 AD3d 574). Indeed, the dissenters in MacMillan (id.
at 1392) properly note that the Court of Appeals has held “that a
spasm is not considered objective evidence of an injury absent further
evidence that the spasm was ‘objectively ascertained,’ such as
evidence of the test performed to induce the spasm [internal citation
omitted].” Here, the chiropractor’s affidavit indicated that one MRI
showed that plaintiff had disc bulges at numerous locations in the
lumbar spine and that another MRI showed a “ ‘disc bulge osteophyte
complex and disc dessication most prominent at C5-C6’ ” in the
cervical spine, but the chiropractor did not explicitly state that
plaintiff’s loss of range of motion was caused by those disc bulges or
by any other objective condition (see Lauffer, 74 AD3d at 1827), nor
did he address the opinion of defendants’ expert that the MRI showed
that plaintiff had a degenerative disc condition unrelated to the car
accident (see Caldwell v Grant [appeal No. 2], 31 AD3d 1154, 1155).
Thus, although the chiropractor “provided numeric percentages of
plaintiff’s loss of range of motion as well as qualitative assessments
of plaintiff’s condition” (Leahey v Fitzgerald, 1 AD3d 924, 926), the
expert “did not relate the loss of [range of motion] to the [MRI
results] or any other objective finding” (Beaton v Jones, 50 AD3d
1500, 1502). Moreover, plaintiff’s chiropractor did not explain why
plaintiff’s symptoms should be attributed to injuries sustained in the
accident and not to the preexisting degenerative disc condition.
Thus, to the extent that plaintiff’s chiropractor concluded that
plaintiff’s symptoms were caused by the accident, that conclusion is
both speculative and conclusory (see Innocent v Mensah, 56 AD3d 379,
380).

     I further note that, to the extent the majority believes that the
affidavit of plaintiff’s chiropractor raised an issue of fact by
providing objective evidence of a medically determined injury with
respect to the 90/180-day category, then the affidavit must
necessarily also have satisfied plaintiffs’ burden concerning the
other categories of serious injury that the majority concludes should
have been dismissed as a matter of law because there was no evidence
of an objective injury. Indeed, in his affidavit plaintiff’s
chiropractor opined to a reasonable degree of medical certainty that
plaintiff sustained a serious injury under those two other categories
of serious injury. Thus, in my view, the majority is choosing, in an
unexplained and piecemeal manner, both to credit and reject in part
the chiropractor’s affidavit.




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
