CUYLER v. ALLSTATE INSURANCE COMPANY (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action to recover damages pursuant to an uninsured motorist provision of an automobile insurance policy for injuries that he allegedly sustained as a result of a motor vehicle accident.  Plaintiff now appeals from an order that, inter alia, denied that part of his motion for partial summary judgment on the issue of serious injury, and defendant cross-appeals from that order insofar as it denied defendant's cross motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as a result of the accident.  We affirm.

Contrary to plaintiff's contention, Supreme Court properly denied that part of his motion seeking partial summary judgment on the issue of serious injury.  Even assuming, arguendo, that plaintiff met his initial burden of demonstrating his entitlement to judgment as a matter of law (see DeAngelis v. Martens Farms, LLC, 104 A.D.3d 1125, 1126–1127, 961 N.Y.S.2d 643 [4th Dept. 2013]), we conclude that defendant raised an issue of fact whether plaintiff's spinal injuries were causally related to the accident or the result of a preexisting injury to his cervical spine (see Cicco v. Durolek, 147 A.D.3d 1487, 1488, 47 N.Y.S.3d 198 [4th Dept. 2017];  see generally Pommells v. Perez, 4 N.Y.3d 566, 580, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005]).

We likewise reject defendant's contention that the court erred in denying its cross motion.  Contrary to defendant's contention, we conclude that defendant is not entitled to summary judgment dismissing the complaint on the ground that plaintiff's injuries are not causally related to the accident (see Mays v. Green, 165 A.D.3d 1619, 1620, 84 N.Y.S.3d 302 [4th Dept. 2018]).

We further conclude that defendant is not entitled to summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of the three categories alleged by plaintiff in his bill of particulars (see Insurance Law § 5102 [d]).  Initially, we note that defendant did not seek summary judgment on that ground with respect to the 90/180–day category of serious injury, and thus defendant's contention concerning that category, which was not a subject of plaintiff's motion, is not properly before us (see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994]).  Additionally, we conclude that defendant failed to meet its initial burden on that ground with respect to the significant limitation of use and permanent consequential limitation of use categories inasmuch as defendant's own submissions “raise triable issues of fact whether plaintiff's alleged limitations and injuries are significant or consequential” (Monterro v. Klein, 160 A.D.3d 1459, 1460, 72 N.Y.S.3d 880 [4th Dept. 2018] [internal quotation marks omitted];  see Crewe v. Pisanova, 124 A.D.3d 1264, 1264–1265, 3 N.Y.S.3d 798 [4th Dept. 2015]).  One of defendant's experts examined plaintiff and acknowledged that he exhibited radiculopathy (see Crewe, 124 A.D.3d at 1265, 3 N.Y.S.3d 798), and defendant's other expert measured limitations in the range of motion in plaintiff's cervical spine (see Monterro, 160 A.D.3d at 1460, 72 N.Y.S.3d 880).  Although the latter expert opined that plaintiff was feigning those limitations, the expert provided no factual basis for that opinion (see Thomas v. Huh, 115 A.D.3d 1225, 1226, 982 N.Y.S.2d 634 [4th Dept. 2014];  Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 469, 870 N.Y.S.2d 366 [2d Dept. 2008]).

Finally, even assuming, arguendo, that defendant met its initial burden with respect to the permanent consequential limitation of use category, we conclude that plaintiff raised an issue of fact through the affidavit of his expert, who opined that plaintiff had not responded to treatment, that he would require surgery, and that his injuries are permanent (see Edwards v. Devine, 111 A.D.3d 1370, 1372, 975 N.Y.S.2d 277 [4th Dept. 2013];  Garza v. Taravella, 74 A.D.3d 1802, 1803, 905 N.Y.S.2d 392 [4th Dept. 2010]).