| Roll v Gavitt |
| 2010 NY Slip Op 06966 [77 AD3d 1412] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| Gary S. Roll et al., Respondents, v Ashleigh A. Gavitt,Appellant. |
—[*1] Law Office of Jacob P. Welch, Corning (Anna Czarples of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Steuben County (Marianne Furfure, A.J.), enteredOctober 23, 2009 in a personal injury action. The order denied the motion of defendant for summaryjudgment and granted the cross motion of plaintiffs for partial summary judgment on the issue ofnegligence.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained byGary S. Roll (plaintiff) when the vehicle he was driving was rear-ended by a vehicle operated bydefendant. Defendant 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), and plaintiffscross-moved for partial summary judgment on the issue of negligence. Supreme Court properly denieddefendant's motion and granted plaintiffs' cross motion. With respect to defendant's motion, we agreewith defendant that she met her initial burden by submitting evidence that plaintiff did not sustain apermanent consequential limitation of use or a significant limitation of use, the two categories of seriousinjury in Insurance Law § 5102 (d) set forth in plaintiffs' bill of particulars. Defendant submittedan "affirmed report" of a physician who, upon conducting an examination of plaintiff at defendant'srequest, indicated that the injury to plaintiff's cervical spine was only " 'minor, mild or slight. . .[, which is] classified as insignificant within the meaning of' " Insurance Law §5102 (d) (Gaddy v Eyler, 79 NY2d 955, 957 [1992]). Indeed, the physician opined that,although plaintiff "may have sustained soft tissue injuries to the cervical spine in the accident,. . . his current symptoms are minimal and intermittent," and he has preexisting "milddegenerative and hypertrophic changes" in his cervical spine. We further conclude, however, thatplaintiffs raised a triable issue of fact in opposition to the motion by submitting two independent medicalexamination (IME) reports from a physician who examined plaintiff in connection with his workers'compensation claim, as well as an affidavit from his treating physician. The IME reports and affidavitcontain the requisite objective medical findings that raise issues of fact whether plaintiff sustained aserious injury under both categories alleged by plaintiffs (see generally Toure v Avis Rent A CarSys., 98 NY2d 345, 350 [2002]; Chmielv Figueroa, 53 AD3d 1092 [2008]). Contrary to defendant's contention, although plaintiffmay have had a preexisting degenerative disc condition, the IME physician opined that the accidentaggravated plaintiff's preexisting condition (see generally Ellis v Emerson, 34 AD3d 1334, 1335 [2006]; Evans v Mendola, 32 AD3d 1231,1232-1233 [2006]).
Finally, contrary to defendant's remaining contention, the court properly granted plaintiffs' crossmotion for partial summary judgment on the issue of negligence. "Plaintiffs met their initial burden ofestablishing a prima facie case of negligence by submitting evidence that defendant's vehicle rear-endedplaintiff's stopped vehicle" (Ruzycki v Baker, 301 AD2d 48, 50 [2002]), and defendant failedto submit any evidence of negligence on the part of plaintiff sufficient to raise a triable issue of fact(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Present—Fahey, J.P., Carni, Lindley, Green and Gorski, JJ.