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

1177
CA 14-00114
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


ARIANE CREWE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TATJANA PISANOVA AND NIKOLAY PISANOV,
DEFENDANTS-APPELLANTS.


LAW OFFICES OF THERESA J. PULEO, SYRACUSE (MICHELLE M. DAVOLI OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

LAW OFFICE OF MARC JONAS, UTICA (JASON D. FLEMMA OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a revised order of the Supreme Court, Oneida County
(David A. Murad, J.), entered October 23, 2013. The revised order
denied in part the motion of defendants for summary judgment.

     It is hereby ORDERED that the revised order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained in a motor vehicle accident when the vehicle
she was driving was rear-ended by a vehicle operated by defendant
Tatjana Pisanova and owned by defendant Nikolay Pisanov. Defendants
moved for summary judgment dismissing the complaint on the grounds
that plaintiff did not sustain a serious injury within the meaning of
the four categories of serious injury set forth in plaintiff’s bill of
particulars (see Insurance Law § 5102 [d]), and did not sustain
economic loss in excess of the $50,000 threshold for basic economic
loss (§ 5102 [a]). Supreme Court granted the motion only with respect
to the permanent loss of use category of serious injury, and
defendants contend on appeal that the court should have granted their
motion in its entirety. We affirm.

     The court properly denied defendants’ motion with respect to the
remaining three categories of serious injury. With respect to two of
those categories, i.e., permanent consequential limitation of use and
significant limitation of use, we note that “ ‘[w]hether a limitation
of use or function is significant or consequential (i.e., important .
. .) relates to medical significance and involves 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; see Dufel v Green, 84 NY2d 795, 798). Objective proof is
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                                                         CA 14-00114

required to prove such limitations (see Matte, 20 AD3d at 899; Leahey
v Fitzgerald, 1 AD3d 924, 925). Here, defendants’ own submissions
raise triable issues of fact with respect to those categories (see
Thomas v Huh, 115 AD3d 1225, 1225; Summers v Spada, 109 AD3d 1192,
1192).

     Defendants’ expert opined that plaintiff did not have a serious
injury within the meaning of those two categories, based upon his
examination of plaintiff and his review of plaintiff’s medical
records. The expert concluded, inter alia, that plaintiff did not
sustain a serious injury because she did not have radicular pain. In
addition, however, defendants submitted an electromyography study of
plaintiff in support of their motion, indicating that plaintiff
suffered from “moderate chronic left C5-6 radiculopathy.” Further,
when defendants’ expert reviewed plaintiff’s medical history, it was
admittedly missing the first page of that electromyography study.
That is the page containing the conclusion that plaintiff has
“moderate . . . radiculopathy,” and we thus conclude that the basis
for the expert’s conclusion was thereby undermined. Consequently,
defendants failed to eliminate all triable issues of fact with respect
to the permanent consequential limitation of use and significant
limitation of use categories (see Mugno v Juran, 81 AD3d 908, 909;
Lesser v Smart Cab Corp., 283 AD2d 273, 273-274; see also Little v
Ajah, 97 AD3d 801, 802). Even assuming, arguendo, that defendants met
their initial burden with respect to those two categories, we conclude
that plaintiff raised triable issues of fact. Plaintiff submitted the
affidavit of her treating chiropractor and a report from her expert
physician, which discussed plaintiff’s inability to return to pre-loss
activity levels, abnormalities she exhibited in her spine, and the
likelihood that plaintiff will continue to experience physical
problems even when the injuries heal.

     Defendants also failed to meet their burden with respect to the
90/180-day category of serious injury, inasmuch as their own
submissions again raise a triable issue of fact (see Thomas, 115 AD3d
at 1225; Summers, 109 AD3d at 1192). “To qualify as a serious injury
under the 90/180[-day] category, there must be objective evidence of a
medically determined injury or impairment of a non-permanent nature .
. . as well as evidence that plaintiff’s activities were curtailed to
a great extent” (Zeigler v Ramadhan, 5 AD3d 1080, 1081 [internal
quotation marks omitted]; see Licari v Elliott, 57 NY2d 230, 236).
Here, defendants rely on plaintiff’s deposition testimony addressing
how her activities were curtailed as of the time of the deposition,
over a year after the accident, rather than how they were curtailed
during the relevant statutory period, and the report of their expert
physician, “who did not examine plaintiff during the relevant
statutory period and did not address plaintiff’s condition during the
relevant period” (Robinson v Joseph, 99 AD3d 568, 569; see Lowell v
Peters, 3 AD3d 778, 779-780).

     Finally, we reject defendants’ contention concerning plaintiff’s
alleged failure to sustain economic loss in excess of basic economic
loss. “[P]laintiff[] correctly contend[s] that [she] need not await
the full $50,000 payout for basic economic losses . . . before making
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                                                         CA 14-00114

a claim under Insurance Law § 5102 (a) for those additional economic
losses that exceed the basic economic loss threshold” (Wilson v
Colosimo, 101 AD3d 1765, 1767; see generally Montgomery v Daniels, 38
NY2d 41, 47-48; Colvin v Slawoniewski, 15 AD3d 900, 900; Barnes v
Kociszewski, 4 AD3d 824, 825; Watkins v Bank of Castile, 172 AD2d
1061, 1062). Here, the three-year period in which plaintiff may
accrue economic loss in excess of basic economic loss, as set forth in
Insurance Law § 5102 (a) (2), commenced on the date of the accident
and had not yet elapsed when the motion was decided. Therefore,
summary judgment on this ground was premature.


                                                Frances E. Cafarell




Entered:   January 2, 2015
                                                Clerk of the Court
