SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

226 

CA 13-01040 

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ. 

 

CLEVELAND L. THOMAS AND SHERRY D. THOMAS, 

PLAINTIFFS-RESPONDENTS, 

V MEMORANDUM AND ORDER

JACOB K. HUH, USA TRUCK, INC., 

DEFENDANTS-APPELLANTS, 

ET AL., DEFENDANTS. 

 

BURDEN, GULISANO & HICKEY, LLC, BUFFALO (SARAH E. HANSEN OF COUNSEL),

FOR DEFENDANTS-APPELLANTS. 

LAW OFFICE OF J. MICHAEL HAYES, BUFFALO (JEANNA M. CELLINO OF

COUNSEL), FOR PLAINTIFFS-RESPONDENTS. 

 

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

Curran, J.), entered March 8, 2013. The order denied in part the

motion of defendants Jacob K. Huh and USA Truck, Inc., for summary

judgment dismissing plaintiffs’ complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for

injuries allegedly sustained by Cleveland L. Thomas (plaintiff) when

the vehicle he was driving was struck from behind by a tractor trailer

owned by USA Truck, Inc., and operated by Jacob K. Huh (defendants). 

Defendants contend on appeal that Supreme Court erred in denying their

motion for summary judgment dismissing the complaint with respect to

two categories of serious injury within the meaning of Insurance Law §

5102 (d), i.e., permanent consequential limitation of use and

significant limitation of use, and thus should have granted their

motion in its entirety. We affirm. Defendants’ own submissions in

support of the motion raise triable issues of fact with respect to

those two categories (see Summers v Spada, 109 AD3d 1192, 1192). 

Defendants submitted the reports of imaging studies of plaintiff’s

spine, thereby providing the requisite objective evidence of injury

(see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 350), and

they submitted several reports of tests that produced “designation[s]

of . . . numeric percentage[s] of . . . plaintiff’s loss of range of

motion[, which] can be used to substantiate a claim of serious injury”

(id.; see Matte v Hall, 20 AD3d 898, 899). 

Contrary to defendants’ contention, the report of one of the
-2- 226 

CA 13-01040 

physicians who conducted an independent medical examination of

plaintiff is insufficient to eliminate all triable issues of fact and

thus establish their entitlement to judgment as a matter of law. The

opinion of that physician, i.e., that plaintiff’s condition was the

result of degenerative changes predating the accident, fails to

account for evidence that plaintiff had no complaints of pain prior to

the accident (see Endres v Shelba D. Johnson Trucking, Inc., 60 AD3d

1481, 1482-1483; Ashquabe v McConnell, 46 AD3d 1419, 1419). In any

event, his opinion is contrary to that of several other medical

professionals who concluded that plaintiff’s condition was causally

related to the accident (see Limardi v McLeod, 100 AD3d 1375, 1377). 

That same physician, moreover, was alone in his opinion that

plaintiff’s limitations in his ranges of motion were magnified or

self-imposed, and he provided no factual basis for that opinion (see

Busljeta v Plandome Leasing, Inc., 57 AD3d 469, 469). In light of

defendants’ failure to meet their initial burden on the motion, there

is no need to consider the sufficiency of plaintiffs’ opposition

thereto (see Summers, 109 AD3d at 1193). 

Entered: March 21, 2014 Frances E. Cafarell

Clerk of the Court