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

991
CA 16-00338
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.


SARAH MCKEON, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MCLANE COMPANY, INC., TRANSCO, INC.,
STEVEN M. PEPPENELLI, DEFENDANTS-APPELLANTS,
ET AL., DEFENDANT.


SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN J. KROGMAN DAUM
OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

LECLAIR KORONA VAHEY COLE LLP, ROCHESTER (JEREMY M. SHER OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Renee
Forgensi Minarik, A.J.), entered January 12, 2016. The order denied
the motion of defendants McLane Company, Inc., Transco, Inc. and
Steven M. Peppenelli for summary judgment dismissing the amended
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion of defendants
McLane Company, Inc., Transco, Inc., and Steven M. Peppenelli in part
and dismissing the amended complaint, as amplified by the bill of
particulars, against them with respect to the permanent consequential
limitation category of serious injury within the meaning of Insurance
Law § 5102 (d) and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries that she allegedly sustained as the result of a motor vehicle
collision. Following discovery, McLane Company, Inc., Transco, Inc.,
and Steven M. Peppenelli (defendants) moved for summary judgment
dismissing the amended complaint against them on the ground that
plaintiff did not sustain a serious injury within the meaning of
Insurance Law § 5102 (d).

     Contrary to defendants’ contention, we conclude that Supreme
Court properly denied their motion with respect to the 90/180-day
category of serious injury. Defendants’ own submissions establish
that plaintiff sustained “a medically determined injury or impairment
of a non-permanent nature” (Insurance Law § 5102 [d]), i.e., a
lumbosacral myofascial sprain or strain (see Cook v Peterson, 137 AD3d
1594, 1598), and defendants’ submission of plaintiff’s deposition
testimony “fails to establish as a matter of law that plaintiff was
                                 -2-                           991
                                                         CA 16-00338

not ‘curtailed from performing [her] usual activities to a great
extent rather than some slight curtailment’ ” (Winslow v Callaghan,
306 AD2d 853, 854; see Cook, 137 AD3d at 1598).

     Contrary to defendants’ further contention, we conclude that the
court properly denied their motion with respect to the significant
limitation of use category. Even assuming, arguendo, that defendants
made “a prima facie showing that plaintiff’s alleged injuries did not
satisfy [the] serious injury threshold” with respect to that category
(Pommells v Perez, 4 NY3d 566, 574), we conclude that plaintiff’s
submissions in opposition to the motion raised an issue of fact.
Those submissions included an expert’s finding of at least 50% loss of
range of motion in plaintiff’s lumbar spine (see Toure v Avis Rent A
Car Sys., 98 NY2d 345, 350), along with an affirmation from
plaintiff’s physician opining within a reasonable degree of medical
certainty that the motor vehicle accident caused her injuries,
including a bulging disc, an annular tear, and other spinal conditions
revealed by an imaging study, and ultimately resulted in her limited
range of motion (see generally Pommells, 4 NY3d at 579).

     We nonetheless agree with defendants that the court erred in
denying their motion with respect to the permanent consequential
limitation category. We therefore modify the order accordingly.
Defendants met their initial burden by submitting evidence that
plaintiff had returned to work full time and recovered nearly full
range of motion in her lumbar spine, along with the report of an
independent medical examiner who concluded that plaintiff’s injuries
were not permanent (see Gates v Longden, 120 AD3d 980, 982). In
opposition, plaintiff failed to submit objective proof of a permanent
injury (see id.; Feggins v Fagard, 52 AD3d 1221, 1223).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
