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

1124
CA 13-00207
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


NANCY E. CLARK, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TIFFANY AQUINO, DEFENDANT-RESPONDENT.


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

MURA & STORM, PLLC, BUFFALO (KRIS E. LAWRENCE OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered November 9, 2012 in a personal injury
action. The order, among other things, granted the cross motion of
defendant for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the cross motion is
denied and the complaint is reinstated.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when the vehicle she was driving was
struck by a vehicle operated by defendant. In her bill of
particulars, plaintiff alleged that, as a result of the accident, she
sustained a serious injury under the permanent consequential
limitation of use, significant limitation of use, and 90/180-day
categories set forth in Insurance Law § 5102 (d). We agree with
plaintiff that Supreme Court erred in granting defendant’s cross
motion for summary judgment dismissing the complaint on the ground
that plaintiff did not sustain a qualifying injury under any of those
categories.

     With respect to plaintiff’s alleged preexisting condition,
defendant failed to meet her initial burden by submitting persuasive
evidence establishing that plaintiff’s “ ‘alleged injuries sustained
in the accident were preexisting’ . . . or, if they were, that they
were not exacerbated by the accident” (Schreiber v Krehbiel, 64 AD3d
1244, 1245; see Pommells v Perez, 4 NY3d 566, 580). Defendant’s own
expert physician concluded that plaintiff had sustained a cervical
strain as a result of the accident and that she was “free of ongoing
neck pain” prior to the accident, and the medical records support
those conclusions (see Fanti v McLaren, 110 AD3d 1493, 1494; Verkey v
Hebard, 99 AD3d 1205, 1206; Ashquabe v McConnell, 46 AD3d 1419, 1419).
                                 -2-                          1124
                                                         CA 13-00207

     Defendant also failed to establish that she is entitled to
summary judgment on the ground that plaintiff ceased treatment for her
injuries, thereby “interrupt[ing] the chain of causation between the
accident and claimed injur[ies]” (Pommells, 4 NY3d at 572). Here,
plaintiff provided a “reasonable explanation” for the “cessation of
all treatment” (id. at 574). She was discharged from two different
courses of physical therapy after her treatment providers noted that
she had maximized her potential on those courses and recommended that
she should continue with home exercises. Plaintiff was also
discharged from a course of chiropractic treatment, which had provided
her with only temporary relief. Plaintiff also established that
further physical therapy would have been palliative and not beneficial
absent periodic Botox injections, the risks of which were discussed
with her, along with the lack of any guarantee of success (see id. at
576-577; see Paz v Wydrzynski, 41 AD3d 453, 453-454). “A plaintiff
need not incur the additional expense of consultation, treatment or
therapy, merely to establish the seriousness or causal relation of his
[or her] injury” (Pommells, 4 NY3d at 577).

     With respect to the category of permanent consequential
limitation of use, we conclude that defendant failed to eliminate all
issues of fact whether plaintiff’s injuries are permanent (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). Indeed,
the record establishes that the symptoms of plaintiff’s alleged
permanent consequential limitation of use have been of lengthy
duration and “that no change in her condition [is] expected” (Hawkins
v Foshee, 245 AD2d 1091, 1091; see Stearns v O’Brien, 77 AD3d 1383,
1383-1384; Thomas v Hulslander, 233 AD2d 567, 567).

     We further conclude that defendant failed to meet her initial
burden of establishing that plaintiff did not sustain a significant
limitation of use (see Toure v Avis Rent A Car Sys., 98 NY2d 345,
353). Specifically, defendant failed to refute the allegation in the
bill of particulars that plaintiff suffers from cervical dystonia (see
Bowen v Dunn, 306 AD2d 929, 929; Aleksiejuk v Pell, 300 AD2d 1066,
1066-1067). Furthermore, defendant’s own submissions raise an issue
of fact with respect to the category of significant limitation of use
because they contain “an expert’s designation of a numeric percentage”
of plaintiff’s significant restrictions in her range of motion in her
cervical area (Perl v Meher, 18 NY3d 208, 217), and “recite the tests
used to ascertain the degree of plaintiff’s loss of range of motion”
(Weaver v Town of Penfield, 68 AD3d 1782, 1785). The medical records
submitted by defendant also “relate the range of motion losses to . .
. objective findings of injur[ies]” caused by the accident (id.),
including muscle spasms that were noted by medical providers (see
Harrity v Leone, 93 AD3d 1204, 1206). Moreover, conflicting opinions
of the parties’ experts raise issues of fact with respect to
significant limitation of use (see Fonseca v Cronk, 104 AD3d 1154,
1155), including whether a postaccident MRI reveals accident-related
disc herniations (see Durham v New York E. Travel, 2 AD3d 1113, 1114-
1115). It is undisputed that, at a minimum, plaintiff suffered a
cervical sprain or strain in the accident, and that her medical
records demonstrate that she continuously complained of chronic neck
                                 -3-                          1124
                                                         CA 13-00207

and shoulder pain that restricted her activities (see Hawkins, 245
AD2d at 1091; see generally Toure, 98 NY2d at 352, 355).

     Finally, there is an issue of fact with respect to the 90/180-day
category inasmuch as plaintiff testified that she was unable to
perform substantially all of her customary daily activities during the
requisite time period (see Hartley v White, 63 AD3d 1689, 1690;
Cummings v Riedy, 4 AD3d 811, 813; Calucci v Baker, 299 AD2d 897,
898), and her medical records during the requisite time period
corroborate her testimony (cf. Womack v Wilhelm, 96 AD3d 1308, 1311).




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
