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

969
CA 13-00238
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.


GLENN B. SUMMERS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PETER A. SPADA AND BARBARA ANN SPADA,
DEFENDANTS-APPELLANTS.


ADAMS, HANSON, REGO, CARLIN, HUGHES, KAPLAN & FISHBEIN, WILLIAMSVILLE
(BETHANY A. RUBIN OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (THOMAS J. LANG OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered May 8, 2012. 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 affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained when the vehicle he was driving
collided with a vehicle owned by defendant Barbara Ann Spada and
operated by defendant Peter A. Spada. Defendants moved for summary
judgment dismissing the complaint on the ground that plaintiff did not
sustain a serious injury within the meaning of Insurance Law § 5102
(d). We note at the outset that, although plaintiff failed to allege
in his bill of particulars that he sustained a serious injury under
any of the categories set forth in the statute, the parties addressed
the permanent consequential limitation of use, significant limitation
of use and 90/180-day categories in their motion papers and briefs on
appeal, and we likewise address those categories.

     Supreme Court properly denied the motion. Defendants’ own
submissions in support of the motion raise triable issues of fact
whether plaintiff sustained a serious injury under the permanent
consequential limitation of use and significant limitation of use
categories. The physician who conducted independent medical
examinations of plaintiff concurred with the reports of imaging
studies of plaintiff’s spine, which provided the requisite objective
evidence of injury (see generally Toure v Avis Rent A Car Sys., 98
NY2d 345, 350), and he further provided a “designation of a numeric
percentage of . . . plaintiff’s loss of range of motion [that] can be
used to substantiate a claim of serious injury” (id.; see Matte v
                                 -2-                           969
                                                         CA 13-00238

Hall, 20 AD3d 898, 899). The physician’s conclusion that the
abnormalities in plaintiff’s imaging studies are age-related and
unrelated to the accident is inconsistent with his contemporaneous
conclusion that plaintiff “has no medical condition not related to the
accident” and is thus insufficient to establish defendants’
entitlement to judgment on the issue of causation (see generally
Jackson v Leung, 99 AD3d 489, 489; McCree v Sam Trans Corp., 82 AD3d
601, 601).

     Defendants also failed to meet their burden with respect to the
90/180-day category of serious injury inasmuch as defendants’ own
submissions also raise triable issues of fact with respect to that
category (see Zeigler v Ramadhan, 5 AD3d 1080, 1081). The employment
and medical records submitted by defendants indicate that, during the
two years following the accident, plaintiff was absent from work or
his duties were significantly restricted at the direction of his
treating chiropractor (see Matte, 20 AD3d at 899; see also Limardi v
McLeod, 100 AD3d 1375, 1377; Sewell v Kaplan, 298 AD2d 840, 841-842).
In light of defendants’ failure to meet their initial burden on the
motion, there is no need to consider the sufficiency of plaintiff’s
opposition thereto (see Matte, 20 AD3d at 899).




Entered:   September 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
