EMILY KESSLER PLAINTIFF APPELLANT v. SPENCER MARTIN CARR KRISTEN MARTIN HAYLEY JEAN KESSLER AND CHRISTOPHER KESSLER DEFENDANTS RESPONDENTS (2026)

MEMORANDUM AND ORDER

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

Memorandum: In this action to recover damages for injuries she allegedly sustained in an automobile accident with a vehicle operated by Spencer Martin Carr and owned by Kristen H. Martin (collectively, defendants), plaintiff appeals from an order that, inter alia, denied her cross-motion seeking summary judgment on the issue of serious injury to her cervical spine under the significant limitation of use category of Insurance Law § 5102 (d). We reject plaintiff's contention that Supreme Court erred in denying her cross-motion, and we therefore affirm.

Viewing the evidence in the light most favorable to defendants and affording them the benefit of every reasonable inference (see Esposito v Wright, 28 AD3d 1142, 1143 [4th Dept 2006]; see also De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]), we conclude that plaintiff failed to meet her initial burden on her cross-motion of establishing that she sustained a serious injury under the significant limitation of use category that was causally related to the accident inasmuch as her own submissions raise triable issues of fact (see Savilo v Denner, 170 AD3d 1570, 1570 [4th Dept 2019]). Although plaintiff submitted the affirmation of her medical expert, who opined that plaintiff had sustained a serious injury resulting in a significant limitation of use of her cervical spine that was caused by the accident, i.e., herniated discs, plaintiff also relied upon a report—first submitted by defendants in support of their motion for summary judgment dismissing the complaint—of another physician who, after performing a medical examination of plaintiff and reviewing plaintiff's medical records, rendered an opinion that plaintiff “had sustained only a minor [and temporary] cervical strain in the accident, that the injury had resolved, that the limitations he measured in plaintiff's range of motion were evidenced solely by subjective complaints of pain, and that [plaintiff's post-accident MRI showed] no objective evidence of any [traumatic] injury causally related to the accident” (Bleier v Mulvey, 126 AD3d 1323, 1324 [4th Dept 2015]; see Savilo, 170 AD3d at 1570-1571; Griffo v Colby, 118 AD3d 1421, 1422 [4th Dept 2014]). Additionally, the experts offered contradictory opinions regarding whether plaintiff's post-accident MRI showed herniated discs in the cervical spine that were causally related to the accident, whether plaintiff's pain and range of motion limitations were caused by unrelated degenerative changes rather than the accident, and whether the accident aggravated or exacerbated any preexisting, asymptomatic degenerative disease of plaintiff's cervical spine (see Savilo, 170 AD3d at 1570-1571; see also Fonseca v Cronk, 104 AD3d 1154, 1155 [4th Dept 2013]). Inasmuch as “conflicting expert opinions may not be resolved on a motion for summary judgment,” we conclude that plaintiff is not entitled to judgment as a matter of law with respect to the significant limitation of use category of serious injury (Savilo, 170 AD3d at 1571 [internal quotation marks omitted]).

All concur except Bannister, J.P., who dissents and votes to modify in accordance with the following memorandum: In my view, plaintiff met her burden on her cross-motion seeking summary judgment on the issue of serious injury to, inter alia, her cervical spine under the significant limitation of use category (see Insurance Law § 5102 [d]). Indeed, plaintiff established that she sustained a serious injury that was caused by the subject motor vehicle accident under that category, and Spencer Martin Carr and Kristen H. Martin (collectively, defendants) failed to raise an issue of fact. Therefore, I respectfully dissent.

In order to satisfy plaintiff's burden on her cross-motion of establishing the serious injury threshold under Insurance Law § 5102, plaintiff must present objective medical evidence of injuries or abnormalities, medical findings of resulting limitations that are shown by either quantified range of motion testing or by a qualitative assessment of plaintiff's limitations as compared with normal function, and evidence of causation (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]; Weaver v Town of Penfield, 68 AD3d 1782, 1784 [4th Dept 2009]). Moreover, “[a] significant limitation of use of a body function or member does not require a showing of permanency, and any assessment of the significance of a bodily limitation necessarily requires consideration not only of the extent or degree of the limitation, but of its duration as well” (Gates v Longden, 120 AD3d 980, 981 [4th Dept 2014] [internal quotation marks omitted]; see generally Campo v Neary, 52 AD3d 1194, 1197 [4th Dept 2008]).

Here, plaintiff submitted the affirmation of her expert physician and the report of the physician who conducted a medical examination (ME) of plaintiff on behalf of defendants wherein both opined that plaintiff sustained spinal strains that were caused by the accident. Plaintiff's expert further opined that plaintiff sustained a significant limitation of use of her cervical spine as a result of the accident inasmuch as her range of motion testings throughout her course of treatment showed significant range of motion limitations that were worse than before the accident. Moreover, the ME physician, who examined plaintiff two years and four months after the accident, also measured similar decreases in plaintiff's range of motion. The conclusions of plaintiff's expert were also supported by the various treating physicians’ clinical observations, which are noted in the expert's affirmation, during plaintiff's numerous chiropractic and physical therapy treatments. In my view, that evidence was sufficient to establish that plaintiff sustained a serious injury under the significant limitation of use category (see Gaughan v Censeo Health, LLC, 201 AD3d 1350, 1350-1351 [4th Dept 2022]). While defendants point to the ME physician's opinion that his measured limitations of plaintiff's range of motion were based solely on plaintiff's “subjective” limitations, that opinion is in conflict with the conclusions of plaintiff's expert as to those similar limitations, which were based on objective findings. The ME physician in no way attributed plaintiff's limited range of motion at his examination to plaintiff's lack of credibility (see generally Konstantinov v MTLR Corp., 106 AD3d 1055, 1055 [2d Dept 2013]). While the ME physician further opined that a spinal strain is not a serious injury, this opinion was based on his conclusion that spinal strains “heal with time and conservative treatment, which is consistent with the objective evidence in this case.” However, an injury resulting in a “significant limitation of use” need not be a permanent injury (see Gates, 120 AD3d at 981).

Therefore, I would modify the order by granting plaintiff's cross-motion for summary judgment on the issue of serious injury under the significant limitation of use category.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court