| Endres v Shelba D. Johnson Trucking, Inc. |
| 2009 NY Slip Op 02428 [60 AD3d 1481] |
| March 27, 2009 |
| Appellate Division, Fourth Department |
| Carl R. Endres, Appellant, v Shelba D. Johnson Trucking, Inc., etal., Respondents. |
—[*1] Law Offices of Laurie G. Ogden, Buffalo (Jerry Marti of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), enteredAugust 7, 2008 in a personal injury action. The order granted defendants' motion for summaryjudgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion in part and reinstating the complaint, as amplified by the bill of particulars,with respect to the permanent consequential limitation of use of a body organ or member andsignificant limitation of use of a body function or system categories of serious injury within themeaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedlysustained when a tractor-trailer driven by defendant Jerry William White and owned bydefendant Shelba D. Johnson Trucking, Inc. collided with the vehicle driven by plaintiff.Defendants moved for summary judgment dismissing the complaint on the ground that plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d). We noteat the outset that, in opposition to the motion, plaintiff abandoned his claims with respect to threeof the six categories of serious injury alleged in the complaint, as amplified by the bill ofparticulars, i.e., significant disfigurement, fracture, and permanent loss of use (see Oberly vBangs Ambulance, 96 NY2d 295, 297 [2001]; Feggins v Fagard, 52 AD3d 1221,1222 [2008]). We thus conclude that Supreme Court properly granted the motion with respect tothose categories. We further conclude that the court properly granted the motion with respect tothe 90/180 category of serious injury inasmuch as defendants established their entitlement tosummary judgment with respect thereto, and plaintiff failed to submit any evidence that hisactivities were subject to a "medically imposed restriction[ ]" during the relevant time period(Tuna v Babendererde, 32 AD3d 574, 576 [2006]; see generally Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]).
We agree with plaintiff, however, that the court erred in granting the motion with respect tothe permanent consequential limitation of use and significant limitation of use categories ofserious injury, and we therefore modify the order accordingly. Contrary to the contention of[*2]defendants, the report of a physician who examined plaintiffat their request failed to offer any basis upon which to conclude that plaintiff's 50% reduction inlumbar flexion and extension was caused by plaintiff's alleged degenerative disease and was notexacerbated by the accident (see McKenzie v Redl, 47 AD3d 775, 776 [2008]; seealso Umar v Ohrnberger, 46 AD3d 543 [2007]). That report also "failed to address thesignificance of the absence of any prior complaints of similar pain," despite indicating thatplaintiff had informed the physician that he had been relatively free from pain immediately priorto the accident (Ashquabe v McConnell, 46 AD3d 1419 [2007]). Thus, defendants failedto present "persuasive evidence that plaintiff's alleged pain and injuries [with respect to thepermanent consequential limitation of use and significant limitation of use categories] wererelated to a preexisting condition" and were not exacerbated by the accident (Carrasco vMendez, 4 NY3d 566, 580 [2005]; see Ashquabe, 46 AD3d 1419 [2007]). Contraryto defendants' further contention that there was an unexplained gap in plaintiff's treatment, weconclude that the record fails to establish that plaintiff in fact ceased all therapeutic treatment(see generally Pommells v Perez, 4 NY3d 566, 574 [2005]; Brown v Dunlap, 4NY3d 566, 577 [2005]). Present—Hurlbutt, J.P., Martoche, Fahey, Carni and Gorski, JJ.