SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

189 

CA 10-01867 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.

 

STEVEN J. KELLERSON AND MARY KELLERSON, 

PLAINTIFFS-RESPONDENTS, 

 

V MEMORANDUM AND ORDER

ZENAIDA F. ASIS, DEFENDANT-APPELLANT.

 

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, ROCHESTER (ALISON

M.K. LEE OF COUNSEL), FOR DEFENDANT-APPELLANT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (AMY M. VANDERLYKE OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Monroe County (Ann

Marie Taddeo, J.), entered April 23, 2010 in a personal injury action. 

The order, insofar as appealed from, denied the motion of defendant

for 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 Steven J. Kellerson (plaintiff) when he was

struck by a vehicle operated by defendant. Plaintiff was working in

an automatic car wash tunnel at the time of the accident. According

to plaintiffs, plaintiff sustained a serious injury under the

permanent consequential limitation of use and significant limitation

of use categories set forth in Insurance Law § 5102 (d). We conclude

that Supreme Court properly denied defendant’s motion seeking summary

judgment dismissing the complaint on the ground that plaintiff did not

sustain a serious injury in the accident. Even assuming, arguendo,

that defendant met her initial burden on the motion, we conclude that

plaintiffs raised triable issues of fact whether plaintiff sustained a

serious injury under both categories (see Parkhill v Cleary, 305 AD2d

1088, 1089-1090). In opposition to the motion, plaintiffs submitted

the affirmation of plaintiff’s treating orthopedic surgeon, who

reviewed the results of an MRI and other diagnostic tests and

conducted his own objective tests. The orthopedic surgeon concluded

that plaintiff had sustained, inter alia, a complex tear of the

posterior horn of the right knee meniscus requiring surgical repair

and a permanent 15% loss of use of the right leg that were causally

related to the accident. That evidence was sufficient to defeat

defendant’s motion (see Jaramillo v Lobo, 32 AD3d 417).
-2- 189 

CA 10-01867 

We reject defendant’s contention that the court erred in denying

her motion because there was a “gap” in plaintiff’s treatment. 

Plaintiff’s treating orthopedic surgeon provided the unrebutted

explanation that, although plaintiff’s condition had improved to a

point where he could be discharged from active treatment, the

potential for further meniscal tear complications was ever present

and, consistent with the orthopedic surgeon’s earlier predictions,

further treatment, i.e., surgery, became necessary when plaintiff’s

condition worsened. Needless continuous medical treatment is not

necessary to establish a serious injury (see Brown v Dunlap, 4 NY3d

566, 577). We conclude that plaintiff established a reasonable

explanation for the gap in or cessation of treatment sufficient to

defeat defendant’s motion (see id.).

We reject defendant’s further contention that plaintiffs

improperly served a supplemental bill of particulars after the note of

issue was filed and defendant had moved for summary judgment

dismissing the complaint. “A party may serve a supplemental bill of

particulars with respect to claims of continuing special damages and

disabilities without leave of court at any time, but not less than

[30] days prior to trial,” so long as the continuing damages and

disabilities are an anticipated sequelae of the injuries described in

the original bill of particulars (CPLR 3043 [b]; see Tate v Colabello,

58 NY2d 84, 86-87). Here, plaintiffs’ supplemental bill of

particulars merely expanded upon the continuing disabilities alleged

in the original bill of particulars and did not set forth a new legal

theory of liability or new injuries (see Tate, 58 NY2d at 87). Early

on in treatment, plaintiff’s orthopedic surgeon specifically mentioned

the possibility of a meniscal tear, and plaintiffs disclosed that

statement in the original bill of particulars. Defendant contends

that plaintiffs were not permitted to serve a supplemental bill of

particulars after she had moved for summary judgment because her

motion effectively stayed disclosure (see CPLR 3214 [b]). That

contention is without merit inasmuch as a supplemental bill of

particulars is not a disclosure device pursuant to CPLR 3102 (a).

Entered: February 18, 2011 Patricia L. Morgan

Clerk of the Court