Opinion
515 CA 19-01705
10-02-2020
Robert BARRON, Plaintiff-Appellant, v. Tyler BLASETTI, Defendant-Respondent.
THE WRIGHT FIRM, LLC, ROCHESTER (RON F. WRIGHT OF COUNSEL), FOR PLAINTIFF-APPELLANT. RUPP BAASE PFALZGRAF CUNNINGHAM LLC, ROCHESTER (MATTHEW A. LENHARD OF COUNSEL), FOR DEFENDANT-RESPONDENT.
THE WRIGHT FIRM, LLC, ROCHESTER (RON F. WRIGHT OF COUNSEL), FOR PLAINTIFF-APPELLANT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, ROCHESTER (MATTHEW A. LENHARD OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by denying defendant's motion in part and reinstating the complaint, as amplified by the bill of particulars, with respect to the significant limitation of use and permanent consequential limitation of use categories of serious injury within the meaning of Insurance Law § 5102 (d) insofar as they relate to plaintiff's thoracic spine and as modified the order and judgment is affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries he allegedly sustained after his vehicle was struck by a vehicle driven by defendant. Plaintiff appeals from an order and judgment that, inter alia, granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) and denied that part of plaintiff's cross motion for summary judgment on the issue of serious injury. As an initial matter, we note that plaintiff contends on appeal only that he sustained a significant limitation of use and a permanent consequential limitation of use of his thoracic spine and thus has abandoned any other particularized claims of serious injury (see Houston v. Geerlings , 83 A.D.3d 1448, 1449, 920 N.Y.S.2d 537 [4th Dept. 2011] ; see generally Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
We agree with plaintiff that defendant failed to meet his initial burden on his motion with respect to plaintiff's thoracic spine injury under the significant limitation of use and permanent consequential limitation of use categories and thus that Supreme Court erred in granting defendant's motion to that extent. We therefore modify the order and judgment accordingly. The medical records submitted by defendant reference plaintiff's thoracic pain, tenderness, and muscle spasms; discuss imaging that revealed disc protrusions in plaintiff's thoracic spine; and at times note decreased range of motion in his mid and lower back (see generally Austin v. Rent A Ctr. E., Inc. , 90 A.D.3d 1542, 1544, 935 N.Y.S.2d 767 [4th Dept. 2011] ). Defendant also submitted the report of a physician who performed a medical examination of plaintiff wherein the physician acknowledged that the accident activated symptoms of preexisting degenerative changes in plaintiff's thoracic spine, but opined that plaintiff had only a "mild disability." Although the report described plaintiff's thoracic range of motion as "full," it did not provide related numerical measurements as it had with respect to the cervical and lumbar spine. Based on the above, we conclude that defendant's own submissions raised issues of fact with respect to plaintiff's thoracic spine injury under the significant limitation of use and permanent consequential limitation of use categories (see generally Strangio v. Vasquez , 144 A.D.3d 1579, 1580, 40 N.Y.S.3d 823 [4th Dept. 2016] ; Aleksiejuk v. Pell , 300 A.D.2d 1066, 1066-1067, 752 N.Y.S.2d 504 [4th Dept. 2002] ).
Contrary to plaintiff's further contention, however, he failed to meet his initial burden on his cross motion with respect to his thoracic spine injury under the significant limitation of use and permanent consequential limitation of use categories. Although plaintiff submitted the report of a physician who measured a loss of range of motion in plaintiff's thoracic spine during an examination over four years after the collision, records more contemporaneous to the accident raise an issue of fact whether or to what degree plaintiff lost range of motion (see generally Doran v. Sequino , 17 A.D.3d 626, 626-627, 795 N.Y.S.2d 245 [2d Dept. 2005] ; Sarkis v. Gandy , 15 A.D.3d 942, 943, 789 N.Y.S.2d 578 [4th Dept. 2005] ; Check v. Gacevk , 14 A.D.3d 586, 586, 789 N.Y.S.2d 218 [2d Dept. 2005] ). Further, although plaintiff's imaging revealed that he had disc protrusions in his thoracic spine, such protrusions alone were insufficient to establish a qualifying serious injury as a matter of law (see Pommells v. Perez , 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ; Borzillieri v. Jones , 68 A.D.3d 1668, 1669, 891 N.Y.S.2d 832 [4th Dept. 2009] ).