| McHugh v Marfoglia |
| 2009 NY Slip Op 06355 [65 AD3d 828] |
| August 28, 2009 |
| Appellate Division, Fourth Department |
| Patrick McHugh, Appellant, v A.J. Marfoglia et al.,Respondents. |
—[*1] Law Office of Daniel R. Archilla, Buffalo (Timothy R. Hedges of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), enteredOctober 29, 2008 in a personal injury action. The order denied the motion of plaintiff seekingpartial summary judgment and seeking to dismiss the fourth affirmative defense.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted and the fourth affirmative defense is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedlysustained when the vehicle he was driving was rear-ended by a vehicle driven by defendantArica L. Marfoglia and owned by defendant A.J. Marfoglia. We agree with plaintiff thatSupreme Court erred in denying plaintiff's motion seeking partial summary judgment on thethreshold issue whether he sustained a serious injury as a result of the accident under thepermanent consequential limitation of use and significant limitation of use categories within themeaning of Insurance Law § 5102 (d) and seeking to dismiss the fourth affirmativedefense, which alleges that plaintiff did not sustain a serious injury. Plaintiff met his burden withrespect to those two categories by submitting objective evidence that he suffered a discherniation at C6-C7 that required surgical intervention, and by submitting the affirmation of histreating neurosurgeon who concluded that, based upon his examination and treatment of plaintiffand his review of plaintiff's medical records, plaintiff's injuries were significant, permanent, andcausally related to the accident (seeLaForte v Tiedemann, 41 AD3d 1191, 1192 [2007]; see generally Toure v AvisRent A Car Sys., 98 NY2d 345, 353 [2002]). Plaintiff also submitted the affirmed report ofthe neurosurgeon who examined him at defendants' request. That neurosurgeon quantified thedegree of loss of range of motion in plaintiff's cervical spine, including a 66% loss of extensionand a 50% loss of right rotation, and correlated that loss to the normal range of motion in therelevant areas of plaintiff's cervical spine (see Toure, 98 NY2d at 350; see also Harris v Carella, 42 AD3d915, 916-917 [2007]; Strong vADF Constr. Corp., 41 AD3d 1209, 1210 [2007]).
We further conclude that defendants failed to raise a triable issue of fact sufficient to defeatthe motion with respect to the issue of serious injury or causation. Defendants submitted [*2]only an attorney's affirmation and a copy of an alleged surveillancevideotape, which they concede was not authenticated and thus was properly disregarded by thecourt. It is well settled that, "where the moving party has demonstrated its entitlement tosummary judgment, the party opposing the motion must demonstrate by admissible evidence theexistence of a factual issue requiring a trial of the action . . . , and the submission ofa hearsay affirmation by counsel alone does not satisfy this requirement" (Zuckerman v Cityof New York, 49 NY2d 557, 560 [1980]). Moreover, the neurosurgeon who examinedplaintiff at defendants' request concurred with the conclusion of plaintiff's treating neurosurgeonthat plaintiff's cervical spine injury and the resulting surgery were causally related to the accident(see LaForte, 41 AD3d at 1192; Ellithorpe v Marion [appeal No. 2], 34 AD3d1195, 1196 [2006]).
Finally, we note that the record establishes that defendants have expressly withdrawn theirsecond affirmative defense, concerning the alleged failure of plaintiff to wear his seatbelt, havingconceded that it lacks merit. Present—Smith, J.P., Centra, Peradotto, Green and Gorski,JJ.