| Houston v Geerlings |
| 2011 NY Slip Op 02589 [83 AD3d 1448] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| Letitia Houston, Appellant, v Kathleen Geerlings,Respondent. |
—[*1] Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Rochester (Alison M.K. Lee ofcounsel), for defendant-respondent.
Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.),entered April 21, 2010 in a personal injury action. The order granted the motion of defendant forsummary judgment.
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 significant limitation of use and 90/180-day categories of serious injury withinthe meaning of Insurance Law § 5102 (d) insofar as they relate to plaintiff's right shoulderinjury and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained in a three-car chain reaction motor vehicle accident that occurred after the vehicledriven by defendant jumped a curb while exiting a parking lot. Defendant moved for summaryjudgment dismissing the complaint on the ground that plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d), and Supreme Court granted the motion.
At the outset, we reject plaintiff's contention that defendant improperly submitted unswornmedical reports that were not obtained from plaintiff's counsel in support of defendant's motion(see Meely v 4 G's Truck Renting Co.,Inc., 16 AD3d 26, 27 [2005]). In any event, "[a]lthough '[those] reports were unsworn,the . . . medical opinion[ ] relying on those . . . reports [is] sworn andthus competent evidence' " (Harris vCarella, 42 AD3d 915, 916 [2007], quoting Brown v Dunlap, 4 NY3d 566, 577n 5 [2005]). We further conclude that, even though plaintiff did not plead the aggravation orexacerbation of a preexisting injury, defendant herself raised that issue in her motion papers andthus plaintiff could properly rely on that theory in opposition to the motion (see generallyMazurek v Home Depot U.S.A., 303 AD2d 960, 961 [2003]; Martin v Volvo Cars of N.Am., 241 AD2d 941, 943 [1997]).
Plaintiff does not challenge that part of the order granting defendant's motion with respect tothe [*2]significant disfigurement category of serious injury, andwe therefore deem any challenge with respect thereto abandoned (see Ciesinski v Town ofAurora, 202 AD2d 984 [1994]). We conclude that defendant met her initial burden ofestablishing that plaintiff did not sustain a serious injury under any category relating to her neckor lumbar spine, and plaintiff did not raise a triable issue of fact (see generally Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]). Indeed, the evidence submitted by plaintiff inopposition to the motion concerned the alleged injury to her right shoulder only.
We further conclude that defendant met her initial burden of establishing that plaintiff didnot sustain a serious injury relating to her right shoulder under the permanent consequentiallimitation of use category. Defendant submitted evidence that any alleged injuries to plaintiff'sright shoulder had resolved within 21 months following the subject motor vehicle accident (see Dilone v Tak Leu Cheng, 56 AD3d397 [2008]; Curtis v Brent, 51AD3d 464 [2008]; Snow vHarrington, 40 AD3d 1237, 1238 [2007]; see generally Gaddy v Eyler, 79 NY2d955, 957-958 [1992]). In opposition to the motion, plaintiff failed to raise a triable issue of factwhether any limitation of use of her right shoulder was permanent (see generallyZuckerman, 49 NY2d at 562).
We agree with plaintiff, however, that the court erred in granting those parts of the motionwith respect to the significant limitation of use and 90/180-day categories of serious injuryinsofar as they relate to plaintiff's right shoulder injury, and we therefore modify the orderaccordingly. With respect to the significant limitation of use category, we conclude thatdefendant failed to meet her initial burden of establishing that plaintiff did not sustain a seriousinjury under that category. Although defendant submitted reports from physicians discussing therange of motion of plaintiff's right shoulder, those reports fail to compare plaintiff's range ofmotion to what would be considered normal. Thus, those reports are "insufficient to establish that[any] decreased range of motion in the plaintiff's right [shoulder] was so mild, minor[ ] or slightas to be considered insignificant within the meaning of [Insurance Law § 5102 (d)]" (Diorio v Butler, 69 AD3d 787,787-788 [2010]; see McCarthy vGagne, 61 AD3d 942 [2009]; cf. Roll v Gavitt, 77 AD3d 1412 [2010]). Indeed, defendantsubmitted evidence that, following the motor vehicle accident, plaintiff underwent surgery for arotator cuff tear to her right shoulder and that, although plaintiff had preexisting injuries to herright shoulder, the accident may have exacerbated those preexisting injuries.
Finally, with respect to the 90/180-day category, we conclude that defendant failed to meether initial burden of establishing that plaintiff was able to perform substantially all of the materialacts that constituted her usual and customary daily activities during no less than 90 days of the180 days following the accident (see Insurance Law § 5102 [d]). "To qualify as aserious injury under the 90/180[-day] category, there must be objective evidence of a medicallydetermined injury or impairment of a non-permanent nature . . .[,] as well asevidence that plaintiff's activities were curtailed to a great extent" (Zeigler v Ramadhan, 5 AD3d1080, 1081 [2004] [internal quotation marks omitted]). Defendant's own submissionsincluded objective medical evidence that plaintiff may have sustained an injury to her rightshoulder that, at the very least, exacerbated a preexisting injury. Defendant also submittedevidence that plaintiff was confined to her bed for 2½ months following the accident andwas unable to perform daily grooming activities, to do simple chores or to play with her childrenfor three to four months following the accident.
Inasmuch as defendant failed to meet her initial burden of establishing that plaintiff did notsustain a serious injury relating to her right shoulder that was causally related to the accidentunder those two categories of serious injury, the burden never shifted to plaintiff to raise a triableissue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).Present—Scudder, P.J., Smith, Peradotto, Lindley and Green, JJ.