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

155
CA 15-01299
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


CURTIS COOK, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ALYSSA S. PETERSON AND THOMAS M. MIKE,
DEFENDANTS-RESPONDENTS.


LAW OFFICE OF JACOB P. WELCH, CORNING (ANNA CZARPLES OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BARTH SULLIVAN BEHR, BUFFALO (DANIEL K. CARTWRIGHT OF COUNSEL), FOR
DEFENDANT-RESPONDENT ALYSSA S. PETERSON.

LAW OFFICE OF JOHN TROP, ROCHESTER (TIFFANY L. D’ANGELO OF COUNSEL),
FOR DEFENDANT-RESPONDENT THOMAS M. MIKE.


     Appeal from an order of the Supreme Court, Steuben County (Peter
C. Bradstreet, A.J.), entered December 9, 2014. The order granted
defendants’ cross motions for summary judgment dismissing plaintiff’s
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, the cross motions are denied, the
complaint and cross claims are reinstated and the matter is remitted
to Supreme Court, Steuben County, for further proceedings on the
motion filed by defendant Thomas M. Mike.

     Memorandum: In June 2009, plaintiff was a passenger in a vehicle
operated by defendant Alyssa S. Peterson. The vehicle was struck by a
vehicle operated by defendant Thomas M. Mike, who was proceeding
straight through an intersection when Peterson turned left in front of
him. Plaintiff went directly to the hospital from the scene of the
accident, complaining of pain in his head, neck, lower back and right
shoulder. In the two weeks following the accident, plaintiff treated
with an orthopedist for right shoulder pain and “occipital type
headaches.” The orthopedist diagnosed plaintiff with a “[c]ervical
strain sprain and occipital headaches- posttraumatic,” “[b]ilateral
paracervical strains- post[]traumatic,” and right shoulder tendonitis.
Plaintiff was prescribed various medications, and the orthopedist
“recommend[ed] postural improvements which [plaintiff could] do in a
self managed fashion and [the] specific exercise was
reviewed/demonstrated in the office” on July 8, 2009. Plaintiff did
not see any physician again for complaints related to the accident
until September 2010, when he sought treatment for back pain. It was
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                                                         CA 15-01299

not until March 2011 that plaintiff presented to his primary care
physician for complaints of debilitating headaches. From that point
forward, plaintiff was diagnosed with occipital neuralgia, underwent
numerous occipital nerve block injections and ultimately, in July
2013, underwent surgery to have a permanent occipital nerve stimulator
implanted, resulting in five scars measuring 2.5 to 3 inches each
along the line of plaintiff’s spine.

      Plaintiff commenced this action in April 2012, i.e., before the
stimulator surgery, alleging that he had sustained serious physical
injuries in the motor vehicle accident and that he had sustained an
economic loss greater than the basic economic loss. In his initial
bill of particulars, plaintiff alleged serious injuries under the
categories of “permanent loss of use and/or permanent consequential
limitations of use and/or significant limitation of use of his neck
and hip,” and he further alleged that he sustained a serious injury
under the 90/180-day category (see generally Insurance Law § 5102
[d]).

     On February 17, 2014, Mike moved for summary judgment dismissing
the complaint and any cross claims against him on the ground that
Peterson’s negligence was the sole proximate cause of the accident.
On May 19, 2014, Peterson cross-moved for summary judgment dismissing
the complaint against her on the ground that plaintiff did not sustain
a qualifying serious injury. On June 3, 2014, Mike cross-moved for
summary judgment dismissing the complaint and cross claims based on
plaintiff’s failure to meet the serious injury threshold, joining in
Peterson’s cross motion and incorporating all of the arguments and
exhibits she submitted in support of her cross motion.

     By amended verified bills of particulars dated May 30, 2014,
i.e., before Mike’s cross motion for summary judgment, plaintiff
claimed that he had sustained a serious injury under the significant
disfigurement category. He based that new claim on the scars that
resulted from his stimulator surgery. Plaintiff opposed the motion
and cross motions, but in his opposing papers he expressly withdrew
his claim under the permanent loss of use category of serious injury.

      Supreme Court granted the cross motions, awarding defendants
summary judgment dismissing the complaint, and implicitly the cross
claims, on the ground that plaintiff did not sustain a serious injury.
The court found that defendants met their initial burden of
establishing that plaintiff did not sustain a serious injury and that,
even though there were conflicting medical opinions on the issue of
serious injury, the gaps in plaintiff’s treatment interrupted the
chain of causation. Based on its determination, the court found that
there was no reason to rule on Mike’s motion, in which he asserted
that Peterson’s negligence was the sole proximate cause of the
accident. We now reverse.

     With respect to the category of permanent consequential
limitation of use, defendants met their initial burden on the cross
motions by submitting, inter alia, the report of a medical expert
concluding that the only injuries sustained by plaintiff in the
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                                                         CA 15-01299

accident were “[c]ervical and lumbar sprain/strain[s],” which would
have “resolve[d] in weeks to months, but not years after the
accident.” We conclude, however, that plaintiff raised triable issues
of fact by submitting the report of a medical expert who opined that
plaintiff’s occipital neuralgia was causally related to the accident
and limited plaintiff “from being functional or basically doing
anything.” Plaintiff’s expert contended that the permanent stimulator
required to alleviate the pain caused from the occipital neuralgia
resulted in a permanent consequential limitation of use of plaintiff’s
musculoskeletal system and limited all of plaintiff’s activities.
Those conflicting expert opinions create triable issues of fact
requiring a trial (see DeAngelis v Martens Farms, LLC, 104 AD3d 1125,
1126; Pagels v P.V.S. Chems., 266 AD2d 819, 819). Indeed, “[i]t is
well established that ‘conflicting expert opinions may not be resolved
on a motion for summary judgment’ ” (Corbett v County of Onondaga, 291
AD2d 886, 887).

     Although Mike correctly contends that many of the medical reports
and records submitted by plaintiff in opposition to the cross motions
were unsworn and uncertified, we may consider those reports and
records that were “submitted by defendants . . . or were referenced in
the reports of physicians who examined plaintiff on their behalf, and
[defendants] submitted the reports of [those physicians]” (Feggins v
Fagard, 52 AD3d 1221, 1223; see Siemucha v Garrison, 111 AD3d 1398,
1399). To the extent that plaintiff submitted unsworn and uncertified
medical reports and records that were not submitted by defendants or
relied upon by their expert, we may nevertheless rely on the medical
opinions of plaintiff’s experts because “the various medical opinions
relying on those . . . reports [and records] are sworn and thus
competent evidence” (Brown v Dunlap, 4 NY3d 566, 577 n 5; see Harris v
Carella, 42 AD3d 915, 916). We further agree with plaintiff that the
court erred in discounting entirely the opinion of plaintiff’s
treating physician due to perceived errors in his report. “The court
may not weigh the credibility of the affiants on a motion for summary
judgment unless it clearly appears that the issues are not genuine,
but feigned” (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439,
441). In any event, regardless of the opinion of plaintiff’s treating
physician, plaintiff also submitted an expert affirmation from another
medical professional that raises triable issues of fact.

     We reject defendants’ contention that the gaps in plaintiff’s
treatment are fatal to his claims (see generally Pommells v Perez, 4
NY3d 566, 574). With respect to the 14-month gap in treatment
following the July 2009 medical appointments, medical records
submitted by defendants in support of their cross motions provided the
unrebutted explanation that plaintiff’s treating orthopedist had
provided plaintiff with medication and an exercise regimen that was to
be performed “in a self managed fashion.” In opposition to the cross
motions, plaintiff contended that he experienced only mild relief from
that course of treatment and, as a result, “sought a second opinion.”
We thus conclude that plaintiff provided a reasonable explanation for
the gap in treatment that is substantiated by the record, which is
sufficient to defeat defendants’ cross motions (see Ramkumar v Grand
Style Transp. Enters. Inc., 22 NY3d 905, 906; Kellerson v Asis, 81
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                                                         CA 15-01299

AD3d 1437, 1438; cf. Smyth v McDonald, 101 AD3d 1789, 1790-1791;
Thompson v Abbasi, 15 AD3d 95, 99). With respect to two other alleged
gaps in treatment, we conclude that “the record fails to establish
that plaintiff in fact ceased all therapeutic treatment” during those
purported gaps inasmuch as plaintiff was still under the care of
physicians who had provided nerve block injections, he had received
referrals for other physicians and he was exploring alternative
treatments to combat the pain caused by the occipital neuralgia
(Endres v Shelba D. Johnson Trucking, Inc., 60 AD3d 1481, 1483; see
Seecoomar v Ly, 43 AD3d 900, 902).

     With respect to the significant limitation of use category, we
conclude that defendants failed to meet their initial burden with
respect to that category (see Toure v Avis Rent A Car Sys., 98 NY2d
345, 353). Defendants’ own submissions established that plaintiff
sustained, at the very least, “[c]ervical and lumbar
sprain[s]/strain[s],” which resulted in a “moderately limited” range
of motion. “[A]ny assessment of the significance of a bodily
limitation necessarily requires consideration not only of the extent
or degree of the limitation, but of its duration as well” (Downie v
McDonough, 117 AD3d 1401, 1403, lv denied 24 NY3d 906 [internal
quotation marks omitted]; see Vasquez v Almanzar, 107 AD3d 538, 539-
540). Here, defendants failed to establish as a matter of law that
the limitations sustained by plaintiff from the cervical and lumbar
sprains and strains were not significant (see Clark v Aquino, 113 AD3d
1076, 1077-1078; Feggins, 52 AD3d at 1223-1224; Brown v Motor Veh.
Acc. Indem. Corp., 33 AD3d 832, 832). In any event, as with the
permanent consequential limitation of use category, we agree with
plaintiff that he raised triable issues of fact whether the occipital
neuralgia was caused by the accident and, if so, whether that injury
caused a significant limitation of use of plaintiff’s musculoskeletal
system.

     We further agree with plaintiff that defendants did not meet
their burden of establishing that plaintiff did not sustain a serious
injury under the 90/180-day category. Inasmuch as we have held that a
“ ‘whiplash injury to [plaintiff’s] cervical spine and [a] lumbosacral
sprain/strain’ ” can constitute a qualifying injury under the 90/180-
day category (Bowen v Dunn, 306 AD2d 929, 929; see Zeigler v Ramadhan,
5 AD3d 1080, 1081; cf. Heatter v Dmowski, 115 AD3d 1325, 1326),
defendants were required to “establish as a matter of law that
plaintiff was not curtailed from performing [his] usual activities to
a great extent rather than some slight curtailment” during the
relevant time period (Winslow v Callaghan, 306 AD2d 853, 854 [internal
quotation marks omitted]). Defendants failed to do so (see Crewe v
Pisanova, 124 AD3d 1264, 1265-1266; Suazo v Brown, 88 AD3d 602, 602;
Winslow, 306 AD2d at 853-854), and thus the burden never shifted to
plaintiff to raise an issue of fact (see generally Alvarez v Prospect
Hosp., 68 NY2d 320, 324).

     With respect to the final category of serious injury, i.e.,
significant disfigurement, Peterson contends that plaintiff improperly
attempted to rely on that category of serious injury in opposing the
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                                                         CA 15-01299

cross motions because it was first recited in the amended verified
bills of particulars that postdated Peterson’s cross motion.
Peterson’s contention is not properly before us inasmuch as it is
raised for the first time on appeal and is an issue that “could have
been obviated or cured by factual showings or legal countersteps in
the trial court” (Smith v Besanceney, 61 AD3d 1336, 1336 [internal
quotation marks omitted]). In any event, even if we were to agree
with Peterson that the significant disfigurement category of serious
injury should not have been addressed by the motion court, that
category of serious injury was properly asserted in the amended
verified bills of particulars (see CPLR 3042 [b]), and thus would have
“remained intact” following the decision on the previously asserted
categories of serious injury (O’Brien v Bainbridge, 89 AD3d 1511,
1511-1512).

     On the merits, to the extent that there is an issue of fact
whether the occipital neuralgia was caused by the accident, there is
likewise an issue of fact whether the scarring sustained by plaintiff
as a result of the surgery necessitated by the occipital neuralgia was
caused by the accident (see Schader v Woyciesjes, 55 AD3d 1292, 1293;
Chmiel v Figueroa, 53 AD3d 1092, 1093; see generally Baez v
Rahamatali, 6 NY3d 868, 869; Kilmer v Strek, 35 AD3d 1282, 1283).

      Finally, we agree with plaintiff that the claim for economic
loss in excess of basic economic loss should be reinstated. We note
that the court did not expressly address this claim in granting the
cross motions for summary judgment dismissing the complaint on the
ground that plaintiff did not sustain a serious injury, and it is well
settled, however, that a plaintiff may recover for economic loss in
excess of basic economic loss “without proof of serious injury”
(Colvin v Slawoniewski, 15 AD3d 900, 900; see Barnes v Kociszewski, 4
AD3d 824, 825; see generally Montgomery v Daniels, 38 NY2d 41, 47-48).
Here, “plaintiff[] made a sufficient showing that [he] sustained
economic loss in excess of basic economic loss to warrant submission
of the issue to the jury” (Barnes, 4 AD3d at 825).




Entered:   March 18, 2016                       Frances E. Cafarell
                                                Clerk of the Court
