| Austin v Rent A Ctr. E., Inc. |
| 2011 NY Slip Op 09434 [90 AD3d 1542] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| Mark Austin, Respondent, v Rent A Center East, Inc., et al.,Appellants. |
—[*1] Faraci Lange, LLP, Rochester (Carol A. McKenna of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Wayne County (Daniel G. Barrett, A.J.), enteredApril 7, 2011 in a personal injury action. The order denied the motion of defendants for summaryjudgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedlysustained when the vehicle he was driving collided with a vehicle owned by defendant Rent ACenter East, Inc. and operated by defendant Josh R. Arnold. In his bill of particulars, plaintiffalleged that he sustained a serious injury under the permanent loss of use, permanentconsequential limitation of use, significant limitation of use, and 90/180-day categories set forthin Insurance Law § 5102 (d), but plaintiff has now abandoned his contention with respectto permanent loss of use (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). Weconclude that Supreme Court properly denied defendants' motion seeking summary judgmentdismissing the complaint on the ground that plaintiff did not sustain a serious injury in theaccident within the meaning of the three remaining categories.
Defendants met their initial burden on the motion by establishing that plaintiff's allegedinjuries did not meet the serious injury threshold under any of the three categories (see Tourev Avis Rent A Car Sys., 98 NY2d 345, 351-353 [2002]). Defendants submitted, inter alia,the affirmation of an orthopedic surgeon who, after reviewing plaintiff's medical records andradiological studies and conducting an examination of plaintiff, opined that there was noobjective evidence of a serious injury caused by the motor vehicle accident (see Herbst vMarshall [appeal No. 2], 49 AD3d 1194, 1195 [2008]; Zeigler v Ramadhan, 5 AD3d 1080, 1081 [2004]; Sewell vKaplan, 298 AD2d 840 [2001]). The surgeon further opined that the degenerative changes toplaintiff's cervical and thoracic spine revealed in X rays and an MRI preexisted the motor vehicleaccident.
In opposition to the motion, however, plaintiff raised triable issues of fact whether hesustained a serious injury under each of the three categories (see Herbst, 49 AD3d at1195-1196; [*2]see generally Testa v Allen, 289 AD2d958 [2001]). Plaintiff submitted the affirmation of his treating orthopedic surgeon, who reviewedthe results of X rays and an MRI and opined that plaintiff sustained a cervical whiplash injury, acervical sprain, and a thoracic sprain in the accident. He further opined that the accidentaggravated and exacerbated plaintiff's preexisting, asymptomatic degenerative disease in hiscervical and thoracic spine, including disc protrusions at C5-6, C6-7 and T4-5. According toplaintiff's treating orthopedic surgeon, the aggravation of plaintiff's preexisting cervical andthoracic degenerative disease was the cause of his chronic pain, muscle spasms, and range ofmotion restrictions, all of which prevented plaintiff from, inter alia, working as a rural mailcarrier. He opined that plaintiff's limitations were permanent in nature.
Further, plaintiff submitted his medical records and the depositions of his primary careproviders establishing that, prior to the accident, he had no back or neck complaints (see Perlv Meher, 18 NY3d 208, 219 [2011]). Plaintiff's medical records also reflect the presence ofspasms upon palpation of plaintiff's thoracic spine, which constitutes objective evidence of injury(see Rissew v Smith, 89 AD3d1383 [2011]; Mancuso vCollins, 32 AD3d 1325, 1325-1326 [2006]; Zeigler, 5 AD3d at 1081). Inaddition, plaintiff submitted reports from several medical providers that quantified his loss ofrange of cervical and thoracic motion (see Mancuso, 32 AD3d at 1326). Indeed, afunctional capacity evaluation conducted in December 2007 quantified plaintiff's range of motionrestrictions and indicated that plaintiff was unable to perform bending and squatting activitieswithout support and could lift only 10 pounds on a frequent basis or 15 pounds on an occasionalbasis. With respect to the 90/180-day category, plaintiff did not return to work after the accidentupon the direction of his treating physicians and, thus, plaintiff's submissions raise an issue offact whether he was prevented from performing his usual and customary activities during therequisite time period (see Zeigler, 5 AD3d at 1081; Sewell, 298 AD2d at841-842). Present—Smith, J.P., Peradotto, Lindley, Green and Martoche, JJ. [PriorCase History: 2011 NY Slip Op 30499(U).]