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

1127
CA 16-00707
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.


BARBARA J. HINES-BELL, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LAURIE M. CRIDEN, DEFENDANT-APPELLANT.


GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., BUFFALO (ROBERT L. VOLTZ OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered February 22, 2016. The order granted the motion
of plaintiff for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the motion
seeking summary judgment on the issues of serious injury and sole
proximate cause of the injuries, and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when the vehicle she was driving was
rear-ended by a vehicle operated by defendant. Plaintiff moved for
partial summary judgment contending that, as a result of the accident,
she sustained a serious injury under the fracture, permanent
consequential limitation of use, and significant limitation of use
categories set forth in Insurance Law § 5102 (d), that defendant was
negligent, and that defendant’s negligence was the sole proximate
cause of plaintiff’s serious injury. Supreme Court granted the
motion. We agree with defendant that plaintiff failed to establish as
a matter of law that she sustained a serious injury or that
defendant’s negligence was the sole proximate cause of any such
injury. Supreme Court erred in granting the motion with respect to
those issues, and we therefore modify the order accordingly.

     In support of her motion, plaintiff submitted medical records, an
independent medical examination report, and a physician’s affidavit,
which established that, as a result of the accident, plaintiff
sustained a left wrist scaphoid fracture, which required surgery, and
sustained significant losses of range of motion in her lumbar spine,
together with a large traumatic annular tear at L4-5 in her lumbar
spine, which also required surgery. We thus conclude that plaintiff
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                                                         CA 16-00707

met her burden on the motion. In opposition, defendant submitted
affidavits from two physicians, one of whom is also an engineer
specializing in the analysis of the response of the human body to
forces resulting from events such as automobile collisions to
determine how injuries are caused. Both of defendant’s experts opined
that the wrist fracture predated the accident, that the facts of the
accident were inconsistent with the force needed to cause such a
fracture, and that plaintiff’s back injury was degenerative in nature
and not caused by the accident. “It is well established that
‘conflicting expert opinions may not be resolved on a motion for
summary judgment’ ” (Crutchfield v Jones, 132 AD3d 1311, 1311; see
Edwards v Devine, 111 AD3d 1370, 1372; Fonseca v Cronk, 104 AD3d 1154,
1155). Thus, contrary to plaintiff’s assertion, defendant raised a
triable issue of fact whether there was a causal relationship between
plaintiff’s alleged injuries and the accident.




Entered:   December 23, 2016                   Frances E. Cafarell
                                               Clerk of the Court
