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

720
CA 11-02592
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.


ELEANOR M. SMITH, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CRYSTAL M. CORNELL AND CHRISTINA CORNELL,
DEFENDANTS-APPELLANTS.


THOMAS P. DURKIN, ROCHESTER (STEPHANIE A. MACK OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

JONES & SKIVINGTON, GENESEO (PETER K. SKIVINGTON OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Livingston County (Ann
Marie Taddeo, J.), entered September 9, 2011 in a personal injury
action. The order denied the motion of defendants to dismiss the
complaint for failure to comply with the court’s scheduling order and
denied the motion of defendants for summary judgment.

     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: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when her vehicle was rear-ended by a
vehicle driven by defendant Crystal M. Cornell and owned by defendant
Christina Cornell. Although plaintiff failed to comply with the
scheduling order with respect to completing discovery and filing a
note of issue, the record establishes that plaintiff’s surgery for
injuries she allegedly sustained as a result of the accident was
delayed on several occasions for reasons outside of her control.
Thus, in the absence of a “clear abuse of discretion,” we conclude
that Supreme Court properly denied that part of defendants’ motion
seeking to dismiss the complaint based on the failure of plaintiff to
comply with the scheduling order (Roswell Park Cancer Inst. Corp. v
Sodexo Am., LLC, 68 AD3d 1720, 1721; see Eaton v Hungerford, 79 AD3d
1627, 1628; cf. Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81; Arts4All,
Ltd. v Hancock, 54 AD3d 286, affd 12 NY3d 846, rearg denied 13 NY3d
762, cert denied ___ US ___, 130 S Ct 1301).

     With respect to that part of defendants’ motion seeking summary
                                 -2-                           720
                                                         CA 11-02592

judgment dismissing the complaint on the ground that plaintiff did not
sustain a serious injury pursuant to Insurance Law § 5102 (d), we
agree with defendants that they established their entitlement to
judgment as a matter of law with respect to the 90/180-day category
and that plaintiff failed to raise an issue of fact (see generally
Harrity v Leone, 93 AD3d 1204, 1205-1206). We therefore modify the
order accordingly. With respect to the significant limitation of use
category of serious injury, however, we conclude that, although
defendants met their initial burden, plaintiff raised an issue of fact
sufficient to defeat the motion concerning that category by presenting
the sworn reports of two physicians who performed independent medical
examinations of plaintiff on behalf of her insurance carrier. One of
the physicians determined that plaintiff had significant limited range
of motion of the cervical spine and shoulders and that 50% of the
limitation was attributable to the accident and the other 50% was
attributable to rheumatoid arthritis, which had been dormant prior to
the accident but became symptomatic as a result of the accident. Upon
a further examination approximately two years later, that physician
determined that 25% of plaintiff’s limitations, which had increased,
were attributable to the accident and that 75% were attributable to
the ongoing progression of the disease. The second physician agreed
with plaintiff’s treating orthopedic surgeon that surgery was
necessary to correct bilateral ulnar impaction syndrome, 100% of which
was attributable to the accident. We therefore conclude that
plaintiff presented objective medical evidence of her injuries and
resulting limitations sufficient to defeat the motion with respect to
the significant limitation of use category of serious injury (see id.
at 1206).




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
