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

451
CA 15-01777
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


SARAHANN GATTI AND NATHAN GATTI,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

RODGER J. SCHWAB, DEFENDANT-APPELLANT.


RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JOHN R. CONDREN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

KLOSS, STENGER & LOTEMPIO, BUFFALO (MITCHELL M. STENGER OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered January 20, 2015. The order denied the motion of
defendant for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part and
dismissing the complaint, as amplified by the bill of particulars,
with respect to the 90/180-day category of serious injury within the
meaning of Insurance Law § 5102 (d) and as modified the order is
affirmed without costs.

     Memorandum: In this action to recover damages for serious
injuries allegedly sustained by Sarahann Gatti (plaintiff) in a motor
vehicle accident on December 17, 2012, defendant appeals from an order
denying his motion for summary judgment dismissing the complaint.
Defendant sought such relief on the ground that plaintiff’s claimed
spinal injuries were a result not of that accident, but of a work-
related motor vehicle accident that occurred on November 30, 2012. We
note at the outset that, in opposition to the motion, plaintiff
abandoned her claim of serious injury with respect to the 90/180-day
category of Insurance Law § 5102 (d) (see Armella v Olson, 134 AD3d
1412, 1413), and we thus modify the order by granting defendant’s
motion with respect to that category.

     We otherwise conclude that Supreme Court properly denied the
motion with respect to the remaining two categories of serious injury
alleged by plaintiffs in their bill of particulars. Defendant
established his entitlement to judgment as a matter of law with regard
to whether plaintiff, as a result of the subject accident, sustained a
permanent consequential limitation of use or a significant limitation
of use of her cervical and lumbar spine (see Hartman-Jweid v
                                 -2-                          451
                                                        CA 15-01777

Overbaugh, 70 AD3d 1399, 1400; Anania v Verdgeline, 45 AD3d 1473,
1474; see generally Carrasco v Mendez, 4 NY3d 566, 578-580).
Defendant submitted, among other evidence, the testimony of
plaintiff’s treating orthopedic surgeon before the Workers’
Compensation Board. That testimony was to the effect that plaintiff’s
cervical and lumbar injuries were 100% attributable to the November
30, 2012 accident and thus were preexisting (see Carrasco, 4 NY3d at
579-580).

     In opposition to the motion, however, plaintiffs raised a triable
issue of fact with respect to defendant’s claim of lack of causation
(see Harrity v Leone, 93 AD3d 1204, 1206; Schader v Woyciesjes, 55
AD3d 1292, 1293). In his affirmation, plaintiff’s treating surgeon
directly and adequately addressed the matter of causation, opining
that the subject collision was the sole cause of plaintiff’s C6-7 disc
injury, and the cause of an aggravation of her previously sustained
neck and lower back injuries. That affirmation also set forth the
medical evidence that supported the treating surgeon’s evolving
opinion as to causation (see Harrity, 93 AD3d at 1206). Defendant’s
challenges to the opinions of plaintiff’s surgeon raise issues for the
trier of fact (see generally Cooper v City of Rochester, 16 AD3d 1117,
1118; Gedon v Bri-Lyn Hosps., 286 AD2d 892, 894, lv denied 98 NY2d
601). Indeed, it is well settled that “[t]he 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; see Cook v Peterson,
137 AD3d 1594, 1597).




Entered:   June 10, 2016                       Frances E. Cafarell
                                               Clerk of the Court
