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

895
CA 12-00611
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


DENNIS VERKEY, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ROY F. HEBARD, JR. AND ROY W. HEBARD,
DEFENDANTS-APPELLANTS-RESPONDENTS.


HAGELIN KENT, LLC, LIVERPOOL (KEITH D. MILLER OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS.

WILLIAM K. MATTAR, P.C., WILLIAMSVILLE (APRIL J. ORLOWSKI OF COUNSEL),
FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Seneca County (Dennis F. Bender, A.J.), entered July 26, 2011 in a
personal injury action. The order denied the motion of defendants for
summary judgment on the issue of serious injury, denied that part of
plaintiff’s cross motion seeking summary judgment on the issue of
serious injury and granted that part of plaintiff’s cross motion
seeking summary judgment on the issue of negligence.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying plaintiff’s cross motion
for partial summary judgment in its entirety and as modified the order
is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when a vehicle owned by defendant Roy F. Hebard,
Jr. and driven by defendant Roy W. Hebard collided with a vehicle
driven by plaintiff. Defendants moved for summary judgment dismissing
the complaint on the ground that plaintiff did not sustain a serious
injury within the meaning of the three categories of Insurance Law §
5102 (d) alleged in the complaint, as amplified by plaintiff’s bill of
particulars, i.e., the permanent consequential limitation of use,
significant limitation of use, and 90/180-day categories of serious
injury. Plaintiff cross-moved for partial summary judgment on
liability, i.e., on the issues of negligence and serious injury (see
generally Ruzycki v Baker, 301 AD2d 48, 51-52).

     Addressing first the issue of negligence, we conclude that
Supreme Court erred in granting that part of plaintiff’s cross motion
with respect to that issue. We therefore modify the order
accordingly. Although plaintiff met his initial burden by
establishing “ ‘that the sole proximate cause of the accident was
                                 -2-                           895
                                                         CA 12-00611

[defendant driver’s] failure to yield the right of way’ to plaintiff”
(Guadagno v Norward, 43 AD3d 1432, 1433; see Kelsey v Degan, 266 AD2d
843, 843), defendants raised a triable issue of fact by presenting
evidence that the collision was head-on and that defendant driver was
stopped in his lane of travel at the time of the collision (see
Phillips v Bartholomew, 20 AD3d 920, 921-922; see generally S.J.
Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341). Contrary to
plaintiff’s contention, the fact that defendant driver entered a plea
of guilty to a Vehicle and Traffic Law offense is only some evidence
of negligence and does not establish his negligence per se (see Kelley
v Kronenberg [appeal No. 2], 2 AD3d 1406, 1407; Canfield v Giles
[appeal No. 1], 182 AD2d 1075, 1075).

     The court properly denied both defendants’ motion and that part
of plaintiff’s cross motion for summary judgment on the issue of
serious injury. We note at the outset that plaintiff’s contention
that his injury constitutes a permanent loss of use under Insurance
Law § 5102 (d) is not properly before us inasmuch as it is raised for
the first time on appeal (see Ciesinski v Town of Aurora, 202 AD2d
984, 985).

     We conclude that there are issues of fact on the record before us
with respect to the categories of permanent consequential limitation
of use and significant limitation of use, based on the conflicting
expert opinions submitted by the parties (see Cooper v City of
Rochester, 16 AD3d 1117, 1118). Notably, we reject defendants’
contention that the affirmed report of their retained physician
established that plaintiff’s injury was related to a preexisting
condition and thus that, as a matter of law, it was not causally
related to the instant accident (see generally Spanos v Fanto, 63 AD3d
1665, 1666). Here, although plaintiff had a preexisting degenerative
disc disease as noted on a CT scan taken on the day of the accident
and an MRI taken one month later, that condition was, by all accounts,
asymptomatic at the time of the accident. It is well settled that the
aggravation of an asymptomatic condition can constitute a serious
injury (see Austin v Rent A Ctr. E., Inc., 90 AD3d 1542, 1543;
Terwilliger v Knickerbocker, 81 AD3d 1350, 1351). Moreover, the
existence of an asymptomatic condition predating an accident merely
indicates a plaintiff’s susceptibility to injury; it does not
constitute proof that a plaintiff did not sustain a serious injury in
the subject accident (see Feaster v Boulabat, 77 AD3d 440, 440-441).
We further conclude that both defendants and plaintiff failed to meet
their initial burden on the 90/180-day category (see Hedgecock v
Pedro, 93 AD3d 1143, 1143) and that, in any event, there is a triable
issue of fact with respect to that category (see generally Zuckerman v
City of New York, 49 NY2d 557, 562).




Entered:   October 5, 2012                      Frances E. Cafarell
                                                Clerk of the Court
