| Hartley v White |
| 2009 NY Slip Op 04814 [63 AD3d 1689] |
| June 12, 2009 |
| Appellate Division, Fourth Department |
| Wanda E. Hartley et al., Respondents, v Evelyn I. White,Appellant. |
—[*1] Roland M. Cercone, LLP, Buffalo (Sean P. Kelley of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), enteredOctober 24, 2008 in a personal injury action. The order denied the motion of defendant forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion in part and dismissing the complaint, as amplified by the bill of particulars,with respect to the significant disfigurement, permanent loss of use of a body organ, member,function or system, 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: Plaintiffs commenced this action seeking damages for injuries allegedlysustained by Wanda E. Hartley (plaintiff) when the vehicle she was driving was struck by avehicle driven by defendant. Defendant appeals from an order denying her motion for summaryjudgment dismissing the complaint on the ground that plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d). We note at the outset that, in oppositionto the motion, plaintiffs abandoned their claims of serious injury with respect to the significantdisfigurement and permanent loss of use categories of serious injury (see Oberly v BangsAmbulance, 96 NY2d 295, 297 [2001]; Feggins v Fagard, 52 AD3d 1221, 1222 [2008]). We thus concludethat Supreme Court erred in denying the motion with respect to those categories, and wetherefore modify the order accordingly.
We further conclude that the court erred in denying the motion with respect to the permanentconsequential limitation of use and significant limitation of use categories of serious injury, andwe therefore further modify the order accordingly. Defendant established her entitlement tojudgment as a matter of law with respect to those categories by submitting the affirmation andreport of a physician who examined plaintiff at defendant's request. The physician stated thatplaintiff's injuries were attributable to the preexisting degenerative disease in plaintiff's cervicalspine and that plaintiff sustained only a temporary aggravation of that condition as a result of theaccident (see e.g. Schader vWoyciesjes, 55 AD3d 1292, 1293 [2008]; Chmiel [*2]v Figueroa, 53 AD3d1092 [2008]; see generally Carrasco v Mendez, 4 NY3d 566, 579-580 [2005]). Wereject the contention of plaintiffs that they raised a triable issue of fact sufficient to defeat themotion with respect to those categories by submitting the affirmed report of a chiropractor anduncertified medical records of treatment rendered to plaintiff by that chiropractor after theaccident. As defendant correctly contends, "the affirmed report of the chiropractor is not inadmissible form inasmuch as it was not sworn to before a notary or other authorized official"(Feggins, 52 AD3d at 1223; seeShinn v Catanzaro, 1 AD3d 195, 197-198 [2003]). We reject defendant's furthercontention, however, that the chiropractic records are inadmissible. Those records werereferenced in the affirmed physician's report submitted by defendant (see Feggins, 52AD3d at 1223). We nevertheless conclude that those records fail to raise a triable issue of factwith respect to the permanent consequential limitation of use and significant limitation of usecategories because they do not refute the opinion of the physician who examined plaintiff ondefendant's behalf that plaintiff did not sustain an injury under those categories as a result of theaccident (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Finally, we conclude that the court properly denied the motion of defendant with respect tothe 90/180-day category of serious injury. Although the physician who examined plaintiff ondefendant's behalf stated in his affirmation that plaintiff did not sustain a serious injury underthat category as a result of the accident, he indicated in both his affirmation and report thatplaintiff sustained a temporary aggravation of preexisting degenerative changes in the area of thecervical spine as a result of the accident. Defendant also submitted evidence that plaintiff wasunable to engage in her typical "household stuff," knit or regularly ride her bicycle in the sixmonths after the accident. We thus conclude that defendant herself raised a triable issue of factwith respect to the 90/180-day category (see Pugh v DeSantis, 37 AD3d 1026, 1030 [2007]; seegenerally Zuckerman, 49 NY2d at 562). Present—Martoche, J.P., Smith, Centra,Fahey and Pine, JJ.