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

189
CA 10-01867
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.


STEVEN J. KELLERSON AND MARY KELLERSON,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

ZENAIDA F. ASIS, DEFENDANT-APPELLANT.


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, ROCHESTER (ALISON
M.K. LEE OF COUNSEL), FOR DEFENDANT-APPELLANT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (AMY M. VANDERLYKE OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered April 23, 2010 in a personal injury action.
The order, insofar as appealed from, denied the motion of defendant
for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Steven J. Kellerson (plaintiff) when he was
struck by a vehicle operated by defendant. Plaintiff was working in
an automatic car wash tunnel at the time of the accident. According
to plaintiffs, plaintiff sustained a serious injury under the
permanent consequential limitation of use and significant limitation
of use categories set forth in Insurance Law § 5102 (d). We conclude
that Supreme Court properly denied defendant’s motion seeking summary
judgment dismissing the complaint on the ground that plaintiff did not
sustain a serious injury in the accident. Even assuming, arguendo,
that defendant met her initial burden on the motion, we conclude that
plaintiffs raised triable issues of fact whether plaintiff sustained a
serious injury under both categories (see Parkhill v Cleary, 305 AD2d
1088, 1089-1090). In opposition to the motion, plaintiffs submitted
the affirmation of plaintiff’s treating orthopedic surgeon, who
reviewed the results of an MRI and other diagnostic tests and
conducted his own objective tests. The orthopedic surgeon concluded
that plaintiff had sustained, inter alia, a complex tear of the
posterior horn of the right knee meniscus requiring surgical repair
and a permanent 15% loss of use of the right leg that were causally
related to the accident. That evidence was sufficient to defeat
defendant’s motion (see Jaramillo v Lobo, 32 AD3d 417).
                                 -2-                           189
                                                         CA 10-01867

     We reject defendant’s contention that the court erred in denying
her motion because there was a “gap” in plaintiff’s treatment.
Plaintiff’s treating orthopedic surgeon provided the unrebutted
explanation that, although plaintiff’s condition had improved to a
point where he could be discharged from active treatment, the
potential for further meniscal tear complications was ever present
and, consistent with the orthopedic surgeon’s earlier predictions,
further treatment, i.e., surgery, became necessary when plaintiff’s
condition worsened. Needless continuous medical treatment is not
necessary to establish a serious injury (see Brown v Dunlap, 4 NY3d
566, 577). We conclude that plaintiff established a reasonable
explanation for the gap in or cessation of treatment sufficient to
defeat defendant’s motion (see id.).

     We reject defendant’s further contention that plaintiffs
improperly served a supplemental bill of particulars after the note of
issue was filed and defendant had moved for summary judgment
dismissing the complaint. “A party may serve a supplemental bill of
particulars with respect to claims of continuing special damages and
disabilities without leave of court at any time, but not less than
[30] days prior to trial,” so long as the continuing damages and
disabilities are an anticipated sequelae of the injuries described in
the original bill of particulars (CPLR 3043 [b]; see Tate v Colabello,
58 NY2d 84, 86-87). Here, plaintiffs’ supplemental bill of
particulars merely expanded upon the continuing disabilities alleged
in the original bill of particulars and did not set forth a new legal
theory of liability or new injuries (see Tate, 58 NY2d at 87). Early
on in treatment, plaintiff’s orthopedic surgeon specifically mentioned
the possibility of a meniscal tear, and plaintiffs disclosed that
statement in the original bill of particulars. Defendant contends
that plaintiffs were not permitted to serve a supplemental bill of
particulars after she had moved for summary judgment because her
motion effectively stayed disclosure (see CPLR 3214 [b]). That
contention is without merit inasmuch as a supplemental bill of
particulars is not a disclosure device pursuant to CPLR 3102 (a).




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
