                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 23, 2017                   523457
________________________________

HOWARD F. JONES et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

MERRICK M. MARSHALL et al.,
                    Respondents.
________________________________


Calendar Date:   January 9, 2017

Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ.

                             __________


      Joyce & Holbrook Law Firm, Sherburne (Samantha M. Holbrook
of counsel), for appellants.

      Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Karen J.
Krogman Daum of counsel), for respondents.

                             __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Cerio Jr., J.),
entered December 8, 2015 in Madison County, which granted
defendants' motion for summary judgment dismissing the complaint.

      Plaintiff Howard F. Jones and his spouse, derivatively,
commenced this action seeking to recover for injuries that Jones
allegedly sustained on April 1, 2011 when the pick-up truck that
he was operating was rear-ended by a van driven by defendant
Merrick M. Marshall and owned by defendant Crane Commercial
Services Inc. Specifically, plaintiffs alleged that, as a result
of the collision, Jones suffered a serious injury within the
meaning of Insurance Law § 5102 (d) and incurred an economic loss
in excess of basic economic loss as that term is defined in
Insurance Law § 5102 (a). Following joinder of issue and
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discovery, defendants moved for summary judgment dismissing the
complaint, contending that Jones did not suffer a serious injury
under any of the enumerated categories set forth in the statute.
Plaintiffs opposed the motion, arguing that – at the very least –
the record presented questions of fact in this regard. Supreme
Court granted defendants' motion and dismissed the complaint in
its entirety, including plaintiffs' economic loss claim.
Plaintiffs now appeal.

      Insofar as is relevant here, a serious injury includes "a
fracture; . . . permanent consequential limitation of use of a
body organ or member; significant limitation of use of a body
function or system; or a medically determined injury or
impairment of a non-permanent nature which prevents the injured
person from performing substantially all of the material acts
which constitute such person's usual and customary daily
activities for not less than [90] days during the [180] days
immediately following the occurrence of the injury or impairment"
(Insurance Law § 5102 [d]). When a plaintiff relies upon the
permanent consequential limitation and/or significant limitation
of use categories, such claims must be grounded upon "objective,
quantitative evidence with respect to diminished range of motion
or a qualitative assessment comparing [the] plaintiff's present
limitations to the normal function, purpose and use of the
affected body organ, member, function or system" (Raucci v
Hester, 119 AD3d 1044, 1045-1046 [2014] [internal quotation marks
and citations omitted]; accord Davis v Cottrell, 101 AD3d 1300,
1301 [2012]). Additionally, "a plaintiff must demonstrate that
the limitation of use that he or she sustained was more than
mild, minor or slight" (DeHaas v Kathan, 100 AD3d 1057, 1058
[2012]). Similar objective evidence, such as medically imposed
limitations upon daily activities, must support a plaintiff's
claim under the 90/180-day category; self-serving assertions in
this regard will not suffice (see Clausi v Hall, 127 AD3d 1324,
1327 [2015]; see also Shea v Ives, 137 AD3d 1404, 1406 [2016]).

      As the proponent of the motion for summary judgment,
defendants bore the "initial burden of establishing with
competent medical evidence that [Jones] did not suffer a serious
injury as a result of the accident" (Murray v Helderberg
Ambulance Squad, Inc., 133 AD3d 1001, 1001 [2015]; see St. Clair
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v Giroux, 132 AD3d 1199, 1199 [2015]; Clausi v Hall, 127 AD3d at
1325). Based upon our review of the record as a whole, we are
satisfied that defendants tendered sufficient admissible evidence
– including Jones' medical records and imaging studies, his
examination before trial testimony and the affidavit of
defendants' expert, David Hootnick – to meet their threshold
burden of establishing that Jones did not sustain a serious
injury within the meaning of each of the previously enumerated
categories. We are equally satisfied that, in opposition to
defendants' motion, plaintiffs failed to come forward with
sufficient admissible proof to raise a question of fact as to
their permanent consequential limitation and/or significant
limitation of use claims. Without belaboring the point, suffice
it to say that plaintiffs' proof in opposition, including Jones'
medical records and the affidavit tendered by Thomas McCormack
(one of Jones' treating physicians), did not contain the
quantitative or qualitative proof necessary to raise a question
of fact as to whether Jones had sustained a serious injury under
these two categories. We reach a similar conclusion with respect
to plaintiffs' 90/180-day claim, as proof of the medically
imposed limitations upon or the degree to which Jones' daily and
customary activities actually were curtailed prior to September
26, 2011 (when McCormack cleared Jones to return to work with
specified limitations) is both sparse and conclusory.
Accordingly, Supreme Court properly dismissed plaintiffs' serious
injury claims based upon the permanent consequential limitation
of use, significant limitation of use and 90/180-day categories.

      As to the issue of whether Jones suffered a serious injury
in the form of a fracture, the numerous radiological and MRI
studies included in the record on appeal make clear that Jones
did not suffer a fracture of his thoracic or lumbar spine as a
result of the April 2011 accident, and neither plaintiffs nor
their expert contend to the contrary. The record reflects,
however, that there was some initial debate as to whether Jones
fractured certain of his ribs – specifically, T2 and T6 on his
right side and T6 on his left side – as a result of the accident.
Hootnick, relying upon his review of the various imaging studies
and his examination of Jones, insisted that there was no evidence
that Jones had sustained any rib fractures. McCormack, on the
other hand, opined that Jones had in fact fractured his ribs,
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citing his examination of Jones and his corresponding review of
certain imaging studies. While such conflicting medical opinions
generally would present an issue of fact for the jury to resolve,
we agree that McCormack's affidavit lacks evidentiary support
and, therefore, is insufficient to defeat defendants' motion.

      With respect to the various imaging studies, preliminary
X rays of Jones' thoracic spine were deemed to be inconclusive as
to the issue of a fracture due to the effect that Jones' weight
had upon the quality of the films. Similarly, it does not appear
that the numerous MRI studies conducted of Jones' thoracic and
lumbar spine were geared toward ruling out the suspected rib
fractures referenced during an April 13, 2011 office visit.
Indeed, the office records from that visit bear the following
notation relative to a then-recent MRI of Jones' thoracic spine:
"[f]ocal areas of increased T2 signal are seen within multiple
ribs, including the right 2nd rib, right 6th rib and left 6th
rib, all posteriorly. MRI is not particularly sensitive for rib
fractures but given the history of trauma[,] these could be
fractures or contusions. Recommend bone scan to evaluate for rib
fractures and also to evaluate the lesion at T10." Hence, the
"no fracture" references contained within the various MRI studies
are not dispositive of the rib contusion versus rib fracture
debate.

      That said, the record reflects that Jones underwent the
recommended bone scan on April 21, 2011, which "[did] not reveal
any fractures." Although McCormack's June 2011 office notes, as
well as his affidavit tendered in opposition to defendants'
motion for summary judgment, continued to reflect his belief that
Jones indeed suffered certain rib fractures as the result of the
accident, McCormack's affidavit makes no reference whatsoever to
the results of the April 2011 bone scan. Rather, McCormack based
his opinion that Jones sustained "rib fractures" solely upon "the
MRI films of [Jones'] thoracic spine and lumbar spine." Inasmuch
as McCormack's affidavit is silent as to the results and/or
import of the April 2011 bone scan, which was specifically
ordered to resolve the rib fracture issue and – ultimately –
revealed no evidence of fracture, we agree that plaintiffs failed
to tender sufficient admissible proof to raise a question of fact
on this point. Accordingly, Supreme Court properly dismissed
                              -5-                523457

plaintiffs' serious injury claim based upon a fracture.

      We do, however, agree with plaintiffs that Supreme Court
erred in dismissing their claim for economic loss in excess of
basic economic loss. Although defendants' motion for summary
judgment indeed sought dismissal of the complaint in its
entirety, the underlying motion papers were confined to whether
Jones had sustained a serious injury within the meaning of
Insurance Law § 5102 (d) – not whether plaintiffs had a valid
claim for economic loss in excess of basic economic loss as
defined in Insurance Law § 5102 (a). Indeed, even after
plaintiffs – in opposition to defendants' motion for summary
judgment – tendered proof in support of this claim (including
Jones' W-2 and earnings statements), defendants – in their reply
– failed to refute the substance thereof. For this reason, we
agree with plaintiffs that, having failed to move for summary
judgment as to plaintiffs' economic loss claim, defendants were
not procedurally entitled to such relief (see Martin v LaValley,
144 AD3d 1474, 1477 [2016]).

      Moreover, even if we were to accept defendants' premise
that they did in fact seek dismissal of this particular claim, we
still would conclude that Supreme Court erred in granting such
relief. Under New York's No-Fault Law, an injured party's right
to bring a personal injury action for noneconomic losses, i.e.,
"pain and suffering" (Insurance Law § 5102 [c]), arising out of
an automobile accident is limited to those instances where such
individual has incurred a serious injury (see Insurance Law
§§ 5102 [d]; 5104 [a]; Cividanes v City of New York, 95 AD3d 1, 5
[2012], affd 20 NY3d 925 [2012]). However, basic economic loss
coverage (up to $50,000) is available to a covered person
regardless of fault (see Insurance Law § 5102 [a]) and "includes
payments . . . for items such as lost earnings of up to $2,000
per month for three years after the date of the accident" (Matter
of Cruz v City of N.Y. Dept. of Children's Servs., 123 AD3d 1390,
1391 [2014], lv denied 26 NY3d 905 [2015], citing Insurance Law
§ 5102 [a] [2]). Where, as here, an injured party asserts a
claim for economic loss in excess of basic economic loss, he or
she need not demonstrate that a serious injury was sustained (see
Martin v LaValley, 144 AD3d at 1477; Cook v Peterson, 137 AD3d
1594, 1599 [2016]; Clark v Farmers New Century Ins. Co., 117 AD3d
                              -6-                  523457

1208, 1209 [2014], lv denied and dismissed 24 NY3d 991 [2014]).
Rather, all that is required is that such party demonstrate that
his or her total economic loss actually exceeded basic economic
loss (compare Cook v Peterson, 137 AD3d at 1599, with Wilson v
Colosimo, 101 AD3d 1765, 1767 [2012]). To our analysis,
"plaintiff[s] made a sufficient showing that [Jones] sustained
economic loss in excess of basic economic loss to warrant
submission of the issue to [a] jury" (Cook v Peterson, 137 AD3d
at 1599 [internal quotation marks and citation omitted]) and,
therefore, Supreme Court should not have dismissed plaintiffs'
claim in this regard.

     McCarthy, J.P., Lynch, Clark and Mulvey, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as granted defendants' motion
for summary judgment dismissing plaintiffs' claim for economic
loss in excess of basic economic loss; motion denied to that
extent; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
