| Hedgecock v Pedro |
| 2012 NY Slip Op 02005 [93 AD3d 1250] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| Andrea S. Hedgecock, Respondent, v Laura Pedro et al.,Appellants, et al., Defendants. (Appeal No. 1.) |
—[*1] Law Office of Laurie G. Ogden, Buffalo (Pamela S. Schaller of counsel), fordefendants-appellants Ellen B. Sterman and Craig Chertack. Hogan Willig, Getzville (Steven M. Cohen of counsel), for plaintiff-respondent.
Appeals from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), enteredJuly 29, 2010 in a personal injury action. The order denied the motions of defendants LauraPedro, Ellen B. Sterman and Craig Chertack for summary judgment dismissing the amendedcomplaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting that part of the motion of defendant Laura Pedro for summary judgment dismissing theamended complaint against her insofar as it alleges, as amplified by the bill of particulars, thatplaintiff sustained a serious injury under the permanent consequential limitation of use categoryof serious injury within the meaning of Insurance Law § 5102 (d) and dismissing theamended complaint to that extent and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained infour separate motor vehicle accidents that occurred between September 2004 and November2006. In each of the accidents, plaintiff's vehicle was rear-ended. Supreme Court denied themotion of Laura Pedro, the defendant involved in the first accident, and the motion of Ellen B.Sterman and Craig Chertack (collectively, Sterman defendants), the defendants involved in thesecond accident, both of which sought summary judgment dismissing the amended complaint onthe ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
We conclude that Pedro and the Sterman defendants each established their entitlement tojudgment as a matter of law with respect to the categories of serious injury alleged by plaintiff,i.e., permanent consequential limitation of use, significant limitation of use and 90/180-day [*2]category. In support of their motions, Pedro and the Stermandefendants submitted plaintiff's deposition testimony concerning her long-term preexistingcondition of chronic migraine headaches. With respect to the first accident, plaintiff alleged thather migraine headaches increased in frequency and intensity and that she suffered, inter alia,cervical sprain as a result of the accident. With respect to the second accident, which occurredless than two months later, plaintiff alleged that the injuries she sustained in the first accidentwere exacerbated and that she sustained lumbar sprain and subluxation. At her deposition,plaintiff described her preexisting migraine headache condition and two previous injuries to herback, i.e., compression fractures. We therefore conclude that Pedro and the Sterman defendantseach submitted "persuasive evidence that plaintiff's alleged pain and injuries were related to. . . preexisting condition[s, and thus] plaintiff had the burden to come forward withevidence addressing [their] claimed lack of causation" (Carrasco v Mendez, 4 NY3d 566,580 [2005]; see D'Angelo v Litterer,87 AD3d 1357 [2011]).
In opposition to the motions, plaintiff submitted her entire deposition testimony, the affidavitof her treating chiropractor and the affidavit of her treating neurologist. Inasmuch as the treatingneurologist discussed the combined effect of all four accidents on plaintiff's symptoms, hisaffidavit fails to raise a triable issue of fact whether the first or second accident caused a seriousinjury (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Withrespect to the first accident, the affidavit of the treating chiropractor detailed plaintiff's worseningmigraine symptoms following that accident and noted that there were muscle tension and triggerpoints upon palpation following that accident. The treating chiropractor also stated that plaintiff'ssymptoms improved prior to the second accident, but that her medical condition had not returnedto the state it had been in immediately prior to the first accident. With respect to the secondaccident, the treating chiropractor stated that plaintiff's symptoms had not improved withtreatment prior to the third accident, which occurred nearly one year after the second accident,and he outlined the quantitative restrictions of the range of motion of her cervical and lumbarspine, comparing those restrictions to the normal range of motion (see Burke v Moran, 85 AD3d1710, 1711 [2011]; cf. Houston vGeerlings, 83 AD3d 1448, 1449-1450 [2011]). Further, plaintiff was granted a medicalwithdrawal from her graduate studies immediately following the second accident based upon thefrequency and intensity of her migraine headaches, each of which lasted up to 24 hours andprevented her from driving, attending classes or doing household chores. Thus, we conclude thatplaintiff raised a triable issue of fact sufficient to defeat those parts of each motion with respectto the significant limitation of use category (see generally Roll v Gavitt, 77 AD3d 1412 [2010]), as well as the90/180-day category (see generally Houston, 83 AD3d at 1450). Because plaintiff'streating chiropractor stated that plaintiff's symptoms had not improved in the nearly one-yearperiod between the second and third accidents, we conclude that plaintiff also raised a triableissue of fact sufficient to defeat that part of the Sterman defendants' motion with respect to thepermanent consequential limitation of use category (see generally Roll, 77 AD3d 1412).We further conclude, however, that plaintiff failed to raise a triable issue of fact sufficient todefeat that part of Pedro's motion with respect to the permanent consequential limitation of usecategory, inasmuch as plaintiff's treating chiropractor stated that her symptoms improved prior tothe second accident, and thus that the court erred in denying the motion in its entirety. Wetherefore modify the order accordingly. Present—Scudder, P.J., Centra, Fahey, Carni andSconiers, JJ.