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

749
CA 13-02081
PRESENT: SMITH, J.P., CENTRA, CARNI, AND WHALEN, JJ.


LONNIE GATES, PLAINTIFF-RESPONDENT,

                     V                               MEMORANDUM AND ORDER

GENE H. LONGDEN AND SEARS, ROEBUCK AND CO.,
DEFENDANTS-APPELLANTS.


HISCOCK & BARCLAY, LLP, SYRACUSE (ALAN R. PETERMAN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

GREENE & REID, PLLC, SYRACUSE (JAMES T. SNYDER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (Brian
F. DeJoseph, J.), entered April 19, 2013. The order, among other things,
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
permanent consequential limitation of use 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 he sustained in a motor vehicle accident when the vehicle he
was driving was rear-ended by a vehicle operated by defendant Gene H.
Longden and owned by defendant Sears, Roebuck and Co. According to
plaintiff=s bill of particulars, plaintiff sustained a serious injury under
the significant disfigurement, permanent consequential limitation of use
and significant limitation of use categories of serious injury (see
Insurance Law ' 5102 [d]). Defendants moved for summary judgment
dismissing the complaint on the grounds that any injury sustained by
plaintiff was not causally related to the accident and that, in any event,
plaintiff did not sustain a serious injury, and plaintiff cross-moved
for partial summary judgment on the issues of Aliability, proximate cause
and serious injury.@ Defendants appeal from an order denying their motion
and granting that part of plaintiff=s cross motion for partial summary
judgment on the issue of negligence. We agree with defendants that the
court erred in denying that part of their motion with respect to one of
the three categories of serious injury allegedly sustained by plaintiff,
i.e., the permanent consequential limitation of use category, and we
therefore modify the order accordingly.
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                                                                CA 13-02081

     With respect to causation, defendants contend that the court abused
its discretion in disregarding the opinion of their expert on the issue
of injury causation and that, in view of that opinion, they established
their entitlement to summary judgment dismissing the complaint because
any negligence on their part was not a proximate cause of plaintiff=s
injuries. Contrary to defendants= contention, the court did not abuse
its A >sound discretion= @ in refusing to consider the affidavit of
defendants= expert (Baity v General Elec. Co., 86 AD3d 948, 952; see
generally Werner v Sun Oil Co., 65 NY2d 839, 840). Defendants=
biomechanical expert is an engineer, and is not a medical doctor, and
thus the court properly determined that the expert did not possess Athe
requisite skill, training, education, knowledge or experience from which
it can be assumed that the information imparted or the opinion rendered
[regarding injury causation] is reliable@ (Matott v Ward, 48 NY2d 455,
459; cf. Cardin v Christie, 283 AD2d 978, 979). Because the court did
not consider the opinion of defendants= biomechanical expert on injury
causation, we conclude that defendants failed to meet their burden of
establishing that they were entitled to summary judgment dismissing the
complaint on the ground that there was no injury causation (see generally
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Defendants= further
contention that the court should have conducted a Frye hearing with respect
to the admissibility of their expert=s opinion is unpreserved for our review
because defendants failed to request one (see Parker v Mobil Oil Corp.,
16 AD3d 648, 654, affd 7 NY3d 434, rearg denied 8 NY3d 828; see generally
Matter of York v Zullich, 89 AD3d 1447, 1448).

     The court properly denied that part of defendants= motion with respect
to the significant disfigurement category of serious injury.
Specifically, Athe issue whether a reasonable person viewing the
plaintiff=s [lower back and scar] would regard the condition as
unattractive, objectionable, or as the subject of pity or scorn presents
an issue of fact that cannot be resolved by way of summary judgment@
(Langensiepen v Kruml, 92 AD3d 1302, 1303 [internal quotation marks
omitted]). We further conclude that the court properly denied that part
of defendants= motion with respect to the significant limitation category
of serious injury. A significant limitation of use of a body function
or member does not require a showing of permanency, and Aany 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@ (Lively v Fernandez, 85 AD3d 981, 982 [internal
quotation marks omitted]). Here, defendants submitted evidence in
support of their motion indicating that plaintiff missed six weeks of
work following his surgery and was confined to his home with medical
restrictions, thus raising an issue of fact with respect to that category
(see generally Winegrad, 64 NY2d at 853).

     We conclude, however, that the court erred in denying that part of
defendants= motion with respect to the permanent consequential limitation
of use category of serious injury. Defendants met their initial burden
by submitting evidence that plaintiff worked full-time since the accident,
other than during the six weeks in which he was recovering from surgery.
 They also established that, as of the date of plaintiff=s deposition on
June 22, 2012, plaintiff had no medical restrictions. Defendants further
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                                                              CA 13-02081

established that plaintiff has been able to fish, hunt and camp almost
every weekend, and they submitted medical records stating that plaintiff
had a moderate global loss in range of motion, but with no indication
of permanency (see Carfi v Forget, 101 AD3d 1616, 1617-1618). Plaintiff
failed to raise an issue of fact in opposition to defeat that part of
the motion (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324),
inasmuch as he failed to submit evidence of A >a comparative determination
of the degree or qualitative nature of an injury based on the normal
function, purpose and use of the body part= @ (Matte v Hall, 20 AD3d 898,
899, quoting Toure v Avis Rent A Car Sys., 98 NY2d 345, 353). In
particular, plaintiff failed to submit objective proof of his injury and
a
A >designation of a numeric percentage of [his] loss of range of motion=
@ (id., quoting Toure, 98 NY2d at 350).




Entered:   August 8, 2014                         Frances E. Cafarell
                                                  Clerk of the Court
