SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

798 

CA 11-00209 

PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ. 

 

LUCILLE M. BURKE, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

RYAN D. MORAN AND MARY E. MORAN, 

DEFENDANTS-RESPONDENTS. 

 

GROSSMAN & CIVILETTO, NIAGARA FALLS, HOGAN WILLIG, AMHERST (AMANDA L.

LOWE OF COUNSEL), FOR PLAINTIFF-APPELLANT. 

BURGIO, KITA & CURVIN, BUFFALO (JAMES P. BURGIO OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Erie County (Donna M.

Siwek, J.), entered April 16, 2010 in a personal injury action. The

order granted the motion of defendants for summary judgment and

dismissed the complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by denying the motion in part and

reinstating the complaint, as amplified by the bill of particulars,

with respect to the permanent consequential limitation and significant

limitation of use categories of serious injury within the meaning of

Insurance Law § 5102 (d) and reinstating the claim for economic loss

in excess of basic economic loss, and as modified the order is

affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries she allegedly sustained when the vehicle she was driving was

rear-ended by a vehicle operated by defendant Ryan D. Moran and owned

by defendant Mary E. Moran. Defendants initially 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 thereafter, in their reply papers, sought dismissal of

plaintiff’s claim for economic loss in excess of her basic economic

loss. According to her bill of particulars, plaintiff sustained a

serious injury under the permanent loss of use, permanent

consequential limitation of use, significant limitation of use, and

the 90/180-day categories of serious injury. Plaintiff has abandoned

her contention with respect to permanent loss of use, and we conclude

that Supreme Court erred in granting those parts of defendants’ motion

with respect to the permanent consequential limitation of use and

significant limitation of use categories of serious injury. We

therefore modify the order accordingly. 
-2- 798 

CA 11-00209 

Defendants met their initial burden on the motion by submitting

an expert’s affirmation establishing as a matter of law that there was

no objective confirmation of plaintiff’s pain and that she had not

sustained “any objective injury which would have disabled her for more

than 90 out of 180 days following the motor vehicle accident” or any

objective injury that would constitute a “permanent consequential

limitation of use of a body organ or member,” or a “significant

limitation of use of a body function or system” (see Herbst v Marshall

[appeal No. 2], 49 AD3d 1194, 1195). Defendants also submitted

evidence indicating with respect to plaintiff’s cervical spine that

she had a “voluntary restriction of rotation,” “essentially normal”

neurological examinations and “advanced degenerative disc disease.” 

In opposition to defendants’ motion, however, plaintiff raised

triable issues of fact with respect to the permanent consequential

limitation and significant limitation of use categories of serious

injury by submitting an expert affidavit and medical records

demonstrating an objective basis for the reduced range of motion in

her neck and containing a “numeric percentage of [her] loss of range

of motion” (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350; see Howard

v Robb, 78 AD3d 1589; Feggins v Fagard, 52 AD3d 1221, 1223-1224; Moore

v Gawel, 37 AD3d 1158). Nevertheless, we agree with defendants that

the court properly granted that part of defendants’ motion regarding

the 90/180–day category of serious injury. With respect to that

category, plaintiff failed to raise an issue of fact whether she was

unable to perform substantially all of the material acts that

constituted her usual and customary daily activities during the

requisite period of time (see Licari v Elliott, 57 NY2d 230, 236;

Parkhill v Cleary, 305 AD2d 1088, 1089-1090). 

Finally, we conclude that the court further erred in granting

that part of defendants’ motion seeking to dismiss plaintiff’s claim

for economic loss in excess of basis economic loss, inasmuch as

defendants moved for that relief for the first time in their reply

papers (see Clearwater Realty Co. v Hernandez, 256 AD2d 100, 102;

Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624, 625-626). We

therefore further modify the order accordingly.

Entered: June 17, 2011 Patricia L. Morgan

Clerk of the Court