Opinion
491 CA 17–02051
04-27-2018
Kyle MONTERRO, Plaintiff–Respondent, v. Kirk K. KLEIN and Erie County Water Authority, Defendants–Appellants.
GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR DEFENDANTS–APPELLANTS. RAMOS & RAMOS, BUFFALO (JOSHUA I. RAMOS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
RAMOS & RAMOS, BUFFALO (JOSHUA I. RAMOS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Plaintiff commenced this action to recover damages for injuries that he sustained when the vehicle that he was operating collided with a vehicle operated by defendant Kirk K. Klein and owned by defendant Erie County Water Authority, Klein's employer. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury under the categories alleged by him, i.e., the permanent consequential and significant limitation of use categories, and the 90/180–day category (see Insurance Law § 5102[d] ). Plaintiff cross-moved for summary judgment on the issues of negligence and serious injury. Supreme Court denied plaintiff's cross motion and granted that part of defendants' motion with respect to the 90/180–day category. Defendants appeal, and we affirm.
Contrary to defendants' contention, the court properly denied those parts of their motion with respect to the remaining two categories of serious injury inasmuch as they failed to make " ‘a prima facie showing that plaintiff's alleged injuries did not satisfy [the] serious injury threshold’ ..., and we therefore do not consider plaintiff's submissions in opposition to the motion" ( Gawron v. Town of Cheektowaga, 125 A.D.3d 1467, 1468, 4 N.Y.S.3d 789 [4th Dept. 2015] ). Indeed, we conclude that defendants' own submissions raise triable issues of fact whether plaintiff's alleged limitations and injuries are "significant" or "consequential," and "preexisting and unrelated to the accident" ( id. [internal quotation marks omitted] ). Notably, while the physician who examined plaintiff on behalf of defendants set forth range of motion limitations and considered those findings to be insignificant, "he failed to explain the basis for his calculations, such as the basis for his opinion as to what constitutes a ‘normal’ cervical range of motion" ( McIntyre v. Salluzzo, 159 A.D.3d 1547, 1548, 72 N.Y.S.3d 718 [4th Dept. 2018] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.