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

959
CA 15-00116
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


MONICA HARRIS AND DEMAR HARRIS,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

EVAN CAMPBELL, DEFENDANT-RESPONDENT.


RAMOS & RAMOS, BUFFALO (JOSHUA I. RAMOS OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AARON M. ADOFF OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered July 29, 2014. The order, insofar as appealed
from, denied that part of the cross motion of plaintiffs seeking
partial summary judgment on the issue of serious injury.

     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 Monica Harris (plaintiff) when the vehicle she
was driving was rear-ended by a vehicle owned and operated by
defendant. Supreme Court granted that part of plaintiffs’ cross
motion for partial summary judgment on the issue of negligence and,
contrary to plaintiffs’ contention on appeal, properly denied that
part of their cross motion on the issue of serious injury.

     We note at the outset that plaintiffs have abandoned any
contentions with respect to the 90/180-day category of serious injury
set forth in their bill of particulars (see Ciesinski v Town of
Aurora, 202 AD2d 984, 984), and thus the only categories at issue are
the permanent consequential limitation of use and significant
limitation of use categories of serious injury.

     We conclude that the court properly denied plaintiffs’ cross
motion with respect to those categories. We reject plaintiffs’
contention that plaintiff sustained a serious injury as a matter of
law because she underwent “fusion surgery” that caused “permanent
consequential and significant impairment of [her lumbar] spine.” With
respect to those two categories of injury, whether an injury qualifies
as a serious injury “ ‘relates to medical significance and involves a
comparative determination of the degree or qualitative nature of an
                                 -2-                           959
                                                         CA 15-00116

injury based on the normal function, purpose and use of the body
part’ ” (Toure v Avis Rent A Car Sys., 98 NY2d 345, 353). “Proof of a
herniated disc, without additional objective medical evidence
establishing that the accident resulted in significant physical
limitations, is not alone sufficient to establish a serious injury”
(Pommells v Perez, 4 NY3d 566, 574; see Pugh v Tantillo, 101 AD3d
1658, 1659). Although plaintiffs submitted some objective evidence of
plaintiff’s physical limitations related to the accident, they also
submitted the report of the physician who examined plaintiff on
defendant’s behalf, wherein he concluded that plaintiff had
preexisting conditions that were causing her physical limitations and
pain and opined that plaintiff “did not suffer a significant or
consequential disabling injury to her lumbar spine” as a result of the
accident. Plaintiffs thus by their own submissions raised a triable
issue of fact whether plaintiff sustained a qualifying injury to her
lumbar spine under those two categories (see Strong v ADF Constr.
Corp., 41 AD3d 1209, 1210; see generally Alvarez v Prospect Hosp., 68
NY2d 320, 324). Contrary to plaintiffs’ contention, the mere fact
that plaintiff underwent post-accident fusion surgery does not
establish the causation between the accident and the surgery,
particularly in light of the report of defendant’s examining physician
submitted by plaintiffs in support of the cross motion (see Cummings v
Jiayan Gu, 42 AD3d 920, 923).




Entered:   October 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
