SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

951 

CA 15-01827 

PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ. 

 

ANNA STRANGIO AND ROSARIO STRANGIO, 

PLAINTIFFS-APPELLANTS,

V MEMORANDUM AND ORDER

T.M. MAGADDINO VASQUEZ, ALSO KNOWN AS TINA MARIE 

MAGADDINO-VASQUEZ, ALSO KNOWN AS TINA VASQUEZ, 

DEFENDANT-RESPONDENT. 

 

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),

FOR PLAINTIFFS-APPELLANTS. 

BARTH SULLIVAN BEHR, BUFFALO (DANIEL CARTWRIGHT OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Niagara County

(Richard C. Kloch, Sr., A.J.), entered July 6, 2015. The order,

insofar as appealed from, granted in part the motion of defendant for

summary judgment and dismissed the complaint, as amplified by the bill

of particulars, insofar as it alleged that plaintiff Anna Strangio

sustained a serious injury under the permanent consequential

limitation of use and significant limitation of use categories of

serious injury within the meaning of Insurance Law § 5102 (d). 

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs, those parts of the

motion with respect to the permanent consequential limitation of use

and significant limitation of use categories of serious injury within

the meaning of Insurance Law § 5102 (d) are denied, and the complaint,

as amplified by the bill of particulars, is reinstated to that extent. 

Memorandum: Plaintiffs commenced this action seeking damages for

injuries that Anna Strangio (plaintiff) allegedly sustained when a

vehicle operated by defendant struck a vehicle operated by plaintiff. 

Following discovery, 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). Supreme Court

granted the motion with respect to three of the four categories

alleged in the complaint, as amplified by the bill of particulars, and

plaintiffs contend on appeal that the court erred with respect to two

of those three categories, i.e., the permanent consequential

limitation of use and significant limitation of use categories. We

agree, and we therefore reverse the order insofar as appealed from.
-2- 951 

CA 15-01827 

With respect to the permanent consequential limitation of use

category, even assuming, arguendo, that defendant met her initial

burden of establishing her entitlement to judgment as a matter of law,

we conclude that plaintiffs raised an issue of fact by submitting the

affirmation of plaintiff’s orthopedic surgeon, who measured

“significant restrictions in the flexion, extension and rotation of

plaintiff’s cervical spine [three years] after the accident and opined

that those restrictions are permanent” (Rodriguez v Duggan, 266 AD2d

859, 859-860; see Mangano v Sherman, 273 AD2d 836, 836).

With respect to the significant limitation of use category, we

conclude that defendant raised an issue of fact with her own

submissions in support of the motion (see Courtney v Hebeler, 129 AD3d

1627, 1628; see generally Harris v Campbell, 132 AD3d 1270, 1271). 

Those submissions included evidence that plaintiff’s orthopedist and

another physician had reviewed an imaging study and found a herniated

disc in plaintiff’s cervical spine, and defendant also submitted

“ ‘objective evidence of the extent of alleged physical limitations

resulting from the disc injury’ . . . , i.e., medical records from

plaintiff’s treating physicians designating numeric percentages of

plaintiff’s range of motion losses” (Courtney, 129 AD3d at 1628; see

generally Pommells v Perez, 4 NY3d 566, 574). Contrary to defendant’s

contention, plaintiff’s cessation of treatment is not fatal to her

claim. Plaintiff offered a reasonable explanation for discontinuing

treatment, and she is not required to create “a record of needless

treatment” (Pommells, 4 NY3d at 574).

Entered: November 10, 2016 Frances E. Cafarell

Clerk of the Court