SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

405 

CA 10-01471 

PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ. 

 

LETITIA HOUSTON, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

KATHLEEN GEERLINGS, DEFENDANT-RESPONDENT.

 

CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

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

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

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

L. Galloway, J.), entered April 21, 2010 in a personal injury action. 

The order granted the motion of defendant for summary judgment. 

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 significant limitation of use and 90/180-day

categories of serious injury within the meaning of Insurance Law §

5102 (d) insofar as they relate to plaintiff’s right shoulder injury

and as modified the order is affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries she allegedly sustained in a three-car chain reaction motor

vehicle accident that occurred after the vehicle driven by defendant

jumped a curb while exiting a parking lot. Defendant 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 Supreme Court granted the motion. 

At the outset, we reject plaintiff’s contention that defendant

improperly submitted unsworn medical reports that were not obtained

from plaintiff’s counsel in support of defendant’s motion (see Meely v

4 G’s Truck Renting Co., Inc., 16 AD3d 26, 27). In any event,

“[a]lthough ‘[those] reports were unsworn, the . . . medical

opinion[ ] relying on those . . . reports [is] sworn and thus

competent evidence’ ” (Harris v Carella, 42 AD3d 915, 916, quoting

Brown v Dunlap, 4 NY3d 566, 577 n 5). We further conclude that, even

though plaintiff did not plead the aggravation or exacerbation of a

preexisting injury, defendant herself raised that issue in her motion

papers and thus plaintiff could properly rely on that theory in

opposition to the motion (see generally Mazurek v Home Depot U.S.A.,
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CA 10-01471 

303 AD2d 960, 961; Martin v Volvo Cars of N. Am., 241 AD2d 941, 943).

Plaintiff does not challenge that part of the order granting

defendant’s motion with respect to the significant disfigurement

category of serious injury, and we therefore deem any challenge with

respect thereto abandoned (see Ciesinski v Town of Aurora, 202 AD2d

984). We conclude that defendant met her initial burden of

establishing that plaintiff did not sustain a serious injury under any

category relating to her neck or lumbar spine, and plaintiff did not

raise a triable issue of fact (see generally Zuckerman v City of New

York, 49 NY2d 557, 562). Indeed, the evidence submitted by plaintiff

in opposition to the motion concerned the alleged injury to her right

shoulder only. 

We further conclude that defendant met her initial burden of

establishing that plaintiff did not sustain a serious injury relating

to her right shoulder under the permanent consequential limitation of

use category. Defendant submitted evidence that any alleged injuries

to plaintiff’s right shoulder had resolved within 21 months following

the subject motor vehicle accident (see Dilone v Tak Leu Cheng, 56

AD3d 397; Curtis v Brent, 51 AD3d 464; Snow v Harrington, 40 AD3d

1237, 1238; see generally Gaddy v Eyler, 79 NY2d 955, 957-958). In

opposition to the motion, plaintiff failed to raise a triable issue of

fact whether any limitation of use of her right shoulder was permanent

(see generally Zuckerman, 49 NY2d at 562).

We agree with plaintiff, however, that the court erred in

granting those parts of the motion with respect to the significant

limitation of use and 90/180-day categories of serious injury insofar

as they relate to plaintiff’s right shoulder injury, and we therefore

modify the order accordingly. With respect to the significant

limitation of use category, we conclude that defendant failed to meet

her initial burden of establishing that plaintiff did not sustain a

serious injury under that category. Although defendant submitted

reports from physicians discussing the range of motion of plaintiff’s

right shoulder, those reports fail to compare plaintiff’s range of

motion to what would be considered normal. Thus, those reports are

“insufficient to establish that [any] decreased range of motion in the

plaintiff’s right [shoulder] was so mild, minor[] or slight as to be

considered insignificant within the meaning of [Insurance Law § 5102

(d)]” (Diorio v Butler, 69 AD3d 787, 787-788; see McCarthy v Gagne, 61

AD3d 942; cf. Roll v Gavitt, 77 AD3d 1412). Indeed, defendant

submitted evidence that, following the motor vehicle accident,

plaintiff underwent surgery for a rotator cuff tear to her right

shoulder and that, although plaintiff had preexisting injuries to her

right shoulder, the accident may have exacerbated those preexisting

injuries. 

Finally, with respect to the 90/180-day category, we conclude

that defendant failed to meet her initial burden of establishing that

plaintiff was able to perform substantially all of the material acts

that constituted her usual and customary daily activities during no

less than 90 days of the 180 days following the accident (see

Insurance Law § 5102 [d]). “To qualify as a serious injury under the
-3- 405 

CA 10-01471 

90/180[-day] category, there must be objective evidence of a medically

determined injury or impairment of a non-permanent nature . . .[,] as

well as evidence that plaintiff’s activities were curtailed to a great

extent” (Zeigler v Ramadhan, 5 AD3d 1080, 1081 [internal quotation

marks omitted]). Defendant’s own submissions included objective

medical evidence that plaintiff may have sustained an injury to her

right shoulder that, at the very least, exacerbated a preexisting

injury. Defendant also submitted evidence that plaintiff was confined

to her bed for 21⁄2 months following the accident and was unable to

perform daily grooming activities, to do simple chores or to play with

her children for three to four months following the accident. 

Inasmuch as defendant failed to meet her initial burden of

establishing that plaintiff did not sustain a serious injury relating

to her right shoulder that was causally related to the accident under

those two categories of serious injury, the burden never shifted to

plaintiff to raise a triable issue of fact (see generally Alvarez v

Prospect Hosp., 68 NY2d 320, 324).

Entered: April 1, 2011 Patricia L. Morgan

Clerk of the Court