PUGH, MAURICE M. v. TANTILLO, DAVID J. ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1298
CA 12-01193
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.
MAURICE M. PUGH AND KEISHA PUGH,
PLAINTIFFS-APPELLANTS-RESPONDENTS,
V MEMORANDUM AND ORDER
DAVID J. TANTILLO AND CIRO P. TANTILLO,
DEFENDANTS-RESPONDENTS-APPELLANTS.
ALEXANDER & CATALANO, LLC, SYRACUSE (JAMES L. ALEXANDER OF COUNSEL),
FOR PLAINTIFFS-APPELLANTS-RESPONDENTS.
LAW OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS-APPELLANTS.
Appeal and cross appeal from an order of the Supreme Court,
Onondaga County (Brian F. DeJoseph, J.), entered January 19, 2012.
The order denied the motion of defendants for summary judgment, and
denied in part the cross motion of plaintiffs for partial summary
judgment.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Maurice M. Pugh (plaintiff) when the vehicle he
was driving was rear-ended by a vehicle driven by defendant David J.
Tantillo and owned by defendant Ciro P. Tantillo. Defendants moved
for summary judgment dismissing the complaint on the ground that
plaintiff did not sustain a serious injury within the meaning of
Insurance Law § 5102 (d), and plaintiffs cross-moved for partial
summary judgment on the issues of liability and serious injury.
Plaintiffs appeal and defendants cross-appeal from an order that
denied defendants’ motion and granted only that part of plaintiffs’
cross motion seeking summary judgment on the issue of negligence. We
affirm. We note at the outset that defendants do not contend that
Supreme Court erred in granting that part of plaintiffs’ cross motion
on the issue of negligence, and we further note that the parties have
abandoned any contentions with respect to the 90/180-day category of
serious injury set forth in plaintiffs’ bill of particulars (see
Ciesinski v Town of Aurora, 202 AD2d 984, 984).
We conclude that the court properly denied defendants’ motion for
summary judgment with respect to the permanent consequential
limitation of use and significant limitation of use categories of
-2- 1298
CA 12-01193
serious injury. “[D]efendants’ own submissions raise triable issues
of fact whether plaintiff sustained a qualifying injury under” those
two categories (Feggins v Fagard, 52 AD3d 1221, 1223; see Strong v ADF
Constr. Corp., 41 AD3d 1209, 1210).
We further conclude that the court properly denied plaintiffs’
cross motion for summary judgment on the issues whether plaintiff
sustained a qualifying injury under those two categories of serious
injury (see Monette v Trummer [appeal No. 2], 96 AD3d 1547, 1548-
1549). Plaintiffs submitted the affirmation of plaintiff’s treating
physician who stated that plaintiff had two herniated discs in his
cervical spine that required surgical treatment, but “[p]roof of a
herniated disc, without additional objective medical evidence
establishing that the accident resulted in significant physical
limitations, is not alone sufficient to establish a serious injury”
(Pommells v Perez, 4 NY3d 566, 574). Although plaintiff’s treating
physician provided measurements of the range of motion of plaintiff’s
cervical spine, he did not provide an assessment that “ ‘ compares the
plaintiff’s limitations to the normal function, purpose and use of the
affected body organ, member, function or system’ ” (Leahey v
Fitzgerald, 1 AD3d 924, 925-926, quoting Toure v Avis Rent A Car Sys.,
98 NY2d 345, 350). “Inasmuch as plaintiff[s’] expert made ‘no
meaningful comparison so as to differentiate serious injuries from
mild or moderate ones, his [affirmation] was thus insufficient to
establish a significant limitation of use’ ” or a permanent
consequential limitation of use (Monette, 96 AD3d at 1549).
Entered: December 21, 2012 Frances E. Cafarell
Clerk of the Court