Opinion
309 CA 15-01598.
04-29-2016
Marc J. NYHLEN and Stephanie L. Adams–Nyhlen, Plaintiffs–Respondents–Appellants, v. Timothy J. GILES, Defendant–Appellant–Respondent.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Kevin E. Loftus of Counsel), for Defendant–Appellant–Respondent. Law Offices of Eugene C. Tenney, PLLC, Buffalo (Edward J. Schwendler, III, of Counsel), for Plaintiffs–Respondents–Appellants.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Kevin E. Loftus of Counsel), for Defendant–Appellant–Respondent.
Law Offices of Eugene C. Tenney, PLLC, Buffalo (Edward J. Schwendler, III, of Counsel), for Plaintiffs–Respondents–Appellants.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, and SCUDDER, JJ.
Opinion
MEMORANDUM: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Marc J. Nyhlen (plaintiff) when his vehicle was rear-ended by a vehicle operated by defendant. Plaintiff alleged that, as a result of the accident, he sustained a serious injury under the permanent consequential limitation of use, significant limitation of use and 90/180–day categories (see Insurance Law § 5102[d] ). Defendant appeals from an order denying his motion seeking summary judgment dismissing the complaint on the ground that plaintiff's injuries were preexisting, and that plaintiff did not sustain a qualifying injury as a result of the accident. As a preliminary matter, we dismiss plaintiffs' cross appeal because they were not aggrieved by the order on appeal (see Parochial Bus Sys. v. Board of Educ. of City of
N.Y., 60 N.Y.2d 539, 544–545, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ; Lillie v. Wilmorite, Inc., 92 A.D.3d 1221, 1222, 938 N.Y.S.2d 396 ).
We agree with plaintiffs that Supreme Court properly denied the motion because defendant failed to meet his initial burden of establishing that plaintiff did not sustain a qualifying injury as a result of the accident (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Addressing first the significant limitation of use category, we note that defendant submitted plaintiff's deposition testimony and medical records establishing that he had, inter alia, preexisting injuries to the cervical and lumbar spine, as well as the report of an IME physician who opined that plaintiff sustained only a cervical and lumbar strain as a result of the accident. Nevertheless, defendant also submitted the reports of plaintiff's treating physician, who stated that plaintiff's cervical injuries were “markedly exacerbated” by the accident and that the lumbar injuries were “solely the result of his motor vehicle accident.” The reports also provide quantitative assessments of plaintiff's limited range of motion. Thus, defendant failed to eliminate all issues of fact whether plaintiff sustained a significant limitation of use of the cervical and lumbar spine as a result of the accident (see Clark v. Aquino, 113 A.D.3d 1076, 1076, 978 N.Y.S.2d 546 ; Pugh v. Tantillo, 101 A.D.3d 1658, 1658–1659, 956 N.Y.S.2d 748 ).
With respect to the 90/180–day category, defendant also submitted plaintiff's medical records stating that his level of disability varied from between 50% and 100% for 18 months following the accident. Thus, based upon the physician reports and medical records, together with plaintiff's deposition testimony, we conclude that defendant failed to eliminate all issues of fact concerning that category (see Clark, 113 A.D.3d at 1078, 978 N.Y.S.2d 546 ). Finally, based upon the same reports and records, we conclude that defendant failed to eliminate all issues of fact with respect to the permanent consequential limitation of use category (see id. at 1077, 978 N.Y.S.2d 546 ; Hedgecock v. Pedro, 93 A.D.3d 1250, 1252, 940 N.Y.S.2d 432 ).
It is hereby ORDERED that said cross appeal is unanimously dismissed and the order is affirmed without costs.