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

266
CA 11-01972
PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND MARTOCHE, JJ.


THERESA HARRITY,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JARED M. LEONE AND MARTIN PETERSON,
DEFENDANTS-APPELLANTS-RESPONDENTS.


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

LAW OFFICES OF KAREN LAWRENCE, DEWITT (BARNEY F. BILELLO OF COUNSEL),
FOR DEFENDANT-APPELLANT-RESPONDENT MARTIN PETERSON.

CELLINO & BARNES, P.C., ROCHESTER (SAREER A. FAZILI OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeals and cross appeal from an order of the Supreme Court,
Monroe County (Harold L. Galloway, J.), entered February 8, 2011 in a
personal injury action. The order granted in part and denied in part
the respective motion and cross motions of the parties for summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of plaintiff’s
cross motion seeking dismissal of the first affirmative defense in
each answer and reinstating that affirmative defense and by
transposing defendants’ surnames in the last ordering paragraph, and
as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action to recover damages
for injuries she sustained when the vehicle in which she was a
passenger, driven by defendant Jared M. Leone, collided with a vehicle
driven by defendant Martin Peterson. Supreme Court granted those
parts of defendants’ respective motion and cross motion for summary
judgment dismissing plaintiff’s claims under the significant
disfigurement and the 90/180-day categories of serious injury within
the meaning of Insurance Law § 5102 (d), but denied those parts of
their motions on the issue of negligence and on plaintiff’s claims
under the permanent consequential limitation of use and the
significant limitation of use categories of serious injury. In
addition, the court granted that part of plaintiff’s cross motion
seeking dismissal of the affirmative defenses alleging plaintiff’s
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                                                         CA 11-01972

culpable conduct, failure to wear a seatbelt, and improper service,
but denied that part of plaintiff’s cross motion for partial summary
judgment on the issue of serious injury. This appeal by defendants
and cross appeal by plaintiff ensued. We note at the outset that
plaintiff has abandoned any contention with respect to the serious
disfigurement category of serious injury and we therefore do not
address it (see Ciesinski v Town of Aurora, 202 AD2d 984, 984).

     Contrary to plaintiff’s contention, the court properly granted
those parts of defendants’ respective motion and cross motion with
respect to the 90/180-day category of serious injury. Defendants
submitted plaintiff’s medical records establishing that there are no
“objective medical findings of a medically determined injury or
impairment of a nonpermanent nature which caused the alleged
limitations on [her] daily activities” within 90 of the 180 days
immediately following the occurrence of the injury or impairment
(Dabiere v Yager, 297 AD2d 831, 832, lv denied 99 NY2d 503; see
Insurance Law § 5102 [d]; O’Brien v Bainbridge, 89 AD3d 1511, 1512-
1513). Based on the record before us we agree with the court’s
reasoning in its decision that plaintiff failed to raise an issue of
fact with respect thereto (see generally Linton v Nawaz, 62 AD3d 434,
443, affd 14 NY3d 821). Contrary to the contentions of defendants,
however, the court properly denied those parts of their motion and
cross motion with respect to the permanent consequential limitation of
use and significant limitation of use categories of serious injury.
Defendants met their initial burden with respect to those categories
by submitting the affirmation of a physician, who concluded that
plaintiff had only degenerative changes in her spine and had suffered
only a strain injury, and that her subjective complaints were not
based on objective medical findings (see generally Eteng v Dajos
Transp., 89 AD3d 506, 507; Herbst v Marshall [appeal No. 2], 49 AD3d
1194, 1195). Plaintiff, however, raised an issue of fact with respect
to those two categories by submitting the affidavit of her treating
physician, who outlined the objective medical evidence of plaintiff’s
injury in those two categories, including a positive EMG test
indicating acute bilateral radiculopathy at the L5 nerve root (see
Frizzell v Giannetti, 34 AD3d 1202, 1203), positive straight leg tests
(see id.; see also Lavali v Lavali, 89 AD3d 574, 575), positive
Patrick tests (see Parczewski v Leone, 14 Misc 3d 1218 [A], 2003 NY
Slip Op 50065[U], *2 [Sup Ct, Queens County]; see also Navedo v Jaime,
32 AD3d 788, 788), and notations of muscle spasms and trigger points
(see Pagels v P.V.S. Chems., Inc., 266 AD2d 819, 819). Plaintiff’s
treating physician further raised an issue of fact by opining that the
accident was the cause of plaintiff’s lumbar spine injuries and
continued disability, and by quantifying plaintiff’s resulting
limitations. Plaintiff’s treating physician thus controverted the
opinion offered by the physician in defendants’ submissions that the
worsening of plaintiff’s physical problems were not caused by the
trauma sustained in the accident (see Brown v Dunlap, 4 NY3d 566, 577-
578; cf. Pommells v Perez, 4 NY3d 566, 575).

     Contrary to the contention of the parties, the court did not
dismiss the affirmative defense in Leone’s answer that plaintiff
failed to mitigate her damages. The order on appeal specifies that
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                                                         CA 11-01972

the court dismissed a total of three affirmative defenses, i.e.,
plaintiff’s culpable conduct, plaintiff’s failure to wear a seat belt,
and improper service. Leone alleged the first two, in his first and
third affirmative defenses, while Peterson alleged all three, in his
first through third affirmative defenses. It is clear from the record
that the court merely transposed the names of those defendants in the
second ordering paragraph, and we therefore modify the order
accordingly. We conclude, however, that the court erred in granting
that part of plaintiff’s cross motion seeking dismissal of the
affirmative defense of plaintiff’s culpable conduct in each answer.
There are records indicating that the source of plaintiff’s burn to
her hand was hot butter, an injury sustained at plaintiff’s residence,
while by plaintiff’s own account her hand was burned during the
accident, when meat juices spilled from a pan of pot roast that she
was carrying on her lap in the vehicle. We conclude that defendants
are entitled to explore that discrepancy as well as whether
plaintiff’s conduct in carrying a pan of pot roast on her lap was
culpable. “If there is any doubt as to the availability of a defense,
it should not be dismissed” (Warwick v Cruz, 270 AD2d 255). Likewise,
although we would agree with the court that carrying the pan of pot
roast was not a causative factor of the accident or of plaintiff’s
spinal injuries, it could have been a causative factor of the burn on
her hand. We thus further modify the order by reinstating that
affirmative defense in each answer.




Entered:   March 16, 2012                      Frances E. Cafarell
                                               Clerk of the Court
