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

1304
CA 13-00161
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


ERIC M. FISHER AND DENISE E. FISHER,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

NATHANIEL C. HILL AND MELINDA J. HILL,
DEFENDANTS-APPELLANTS.


LAW OFFICES OF KAREN LAWRENCE, PITTSFORD (BARNEY F. BILELLO OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

RICHARD D. GRISANTI, ARCADE, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Wyoming County (Mark
H. Dadd, A.J.), entered October 5, 2012 in a personal injury action.
The order denied the motion of defendants for summary judgment
dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is reversed
on the law without costs, the motion is granted and the complaint is
dismissed.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by Eric M. Fisher (plaintiff) when the
vehicle he was driving collided with a vehicle operated by defendant
Nathaniel C. Hill and owned by defendant Melinda J. Hill. Supreme
Court denied defendants’ motion seeking summary judgment dismissing
the complaint on the ground that plaintiff did not sustain a serious
injury within the meaning of Insurance Law § 5102 (d). We conclude
that the court erred in determining that defendants failed to meet
their initial burden of establishing that plaintiff did not sustain a
serious injury (see generally Zuckerman v City of New York, 49 NY2d
557, 562). In support of their motion, defendants submitted medical
records and the affirmed report of a neuroradiologist who examined
plaintiff’s medical records at defendants’ request. The
neuroradiologist concluded that the objective medical findings related
only to a preexisting condition in plaintiff’s spine. “[W]ith
persuasive evidence that plaintiff’s alleged pain and injuries were
related to a preexisting condition, plaintiff[s] had the burden to
come forward with evidence addressing defendant[s’] claimed lack of
causation” and, here, plaintiffs failed to meet that burden (Carrasco
v Mendez, 4 NY3d 566, 580; see Mendola v Doubrava, 99 AD3d 1247,
1248). In particular, plaintiffs’ submissions did not adequately
address how plaintiff’s alleged injuries, “in light of [his] past
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                                                         CA 13-00161

medical history, [were] causally related to the subject accident”
(D’Angelo v Litterer, 87 AD3d 1357, 1357 [internal quotation marks
omitted]). Notably, plaintiff’s treating physician did not diagnose
any fracture after the accident, and the equivocal observation of his
neurosurgeon, made 15 months after the accident, that plaintiff “may
have actually” sustained a fracture is insufficient to raise an issue
of fact (see Brackenbury v Franklin, 93 AD3d 423, 423). Plaintiffs’
submissions are likewise insufficient to raise an issue of fact to the
extent that they are based upon plaintiff’s subjective complaints of
pain (see Sierson v Gacek, 67 AD3d 1431, 1432, lv denied 14 NY3d 704).

     All concur except WHALEN, J., who dissents in part and votes to
modify in accordance with the following Memorandum: I respectfully
dissent because I conclude that there are issues of fact whether Eric
M. Fisher (plaintiff) sustained a serious injury within the meaning of
Insurance Law § 5102 (d) under the 90/180-day category. I therefore
conclude that Supreme Court properly denied defendants’ motion to that
extent, and would modify the order accordingly. “The proponent of a
summary judgment motion must make a prima facie showing of entitlement
to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case” (Winegrad v New
York Univ. Med. Ctr., 64 NY2d 851, 853; see Zuckerman v City of New
York, 49 NY2d 557, 562). “Once [that] showing has been made . . . ,
the burden shifts to the party opposing the motion for summary
judgment to produce evidentiary proof in admissible form sufficient to
establish the existence of material issues of fact which require a
trial of the action” (Alvarez v Prospect Hosp., 68 NY2d 320, 324).
Here, I conclude that defendants failed to meet their burden of
establishing as a matter of law that plaintiff was able to perform
substantially all of his usual activities for not less than 90 days of
the 180 days immediately following the accident. Specifically,
defendants failed to establish what plaintiff’s usual and customary
daily activities were before and after the accident, and thus the
burden never shifted to plaintiffs with respect to that category of
serious injury (see Paolini v Sienkiewicz, 262 AD2d 1020, 1020; see
also § 5102 [d]). Indeed, the record establishes that, after the
accident, plaintiff was unable to return to the physical activities
associated with his toy train business, and that his wife and a friend
had to perform all of the physical activities associated with the
business. Defendants also failed to establish what plaintiff’s daily
activities were outside of the business before and after the accident.

     I further conclude that defendants failed to establish as a
matter of law that plaintiff’s injuries with respect to the 90/180-day
category were related only to a preexisting condition. The physician
who offered an opinion to that effect on defendants’ behalf based that
opinion solely on a review of plaintiff’s CT scans and X rays from
2006 to 2009. He did not state that he reviewed plaintiff’s
deposition testimony or plaintiffs’ bill of particulars or that he
examined plaintiff in person. Thus, the physician had no knowledge of
what plaintiff’s usual and customary daily activities were before and
after the accident, and his opinion was therefore insufficient “to
foreclose the 90/180-day category of serious injury” (Colavito v
Steyer, 65 AD3d 735, 736). Moreover, I note that the physician’s
                                 -3-                         1304
                                                        CA 13-00161

opinion with respect to plaintiff’s preexisting medical condition
fails to address plaintiff’s alleged injury to his left leg. The
record establishes that, although plaintiff had medical problems with
his right leg prior to the accident, he alleges injuries to both legs
as a result of the accident. The injury to plaintiff’s left leg
therefore must be a new injury, not a preexisting injury. Inasmuch as
the physician’s opinion fails to address plaintiffs’ “essential
factual allegations,” I conclude that it is insufficient to establish
defendants’ entitlement to summary judgment (Roques v Noble, 73 AD3d
204, 206).




Entered:   February 7, 2014                    Frances E. Cafarell
                                               Clerk of the Court
