SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

999 

CA 13-00066 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.

 

 

LEONARD EDWARDS, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

DONALD DEVINE AND CATHOLIC DIOCESE OF BUFFALO, 

ALSO KNOWN AS ROMAN CATHOLIC DIOCESE OF BUFFALO, 

DEFENDANTS-APPELLANTS. 

 

DAMON MOREY LLP, BUFFALO (KARA M. ADDELMAN OF COUNSEL), FOR

DEFENDANTS-APPELLANTS. 

TERRANCE C. BRENNAN, BUFFALO, FOR PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Tracey A.

Bannister, J.), entered May 16, 2012. The order, inter alia, denied

the motion of defendants for summary judgment dismissing the complaint

and granted the cross motion of plaintiff for bifurcation of the

trial. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting defendants’ motion in part

and dismissing the complaint insofar as the complaint, as amplified by

the bill of particulars, alleges that plaintiff sustained a serious

injury to his neck and back under the permanent consequential

limitation of use and significant limitation of use categories of

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

plaintiff sustained a serious injury under the significant

disfigurement and 90/180-day categories of serious injury within the

meaning of section 5102 (d), and as modified the order is affirmed

without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries he allegedly sustained when the vehicle in which he was a

passenger was rear-ended by a vehicle driven by defendant Donald

Devine and owned by defendant Catholic Diocese of Buffalo, also known

as Roman Catholic Diocese of Buffalo. Plaintiff alleged that, as a

result of the motor vehicle accident, he sustained injuries to his

neck, back and shoulder. Defendants moved for summary judgment

dismissing the complaint on the ground that plaintiff did not sustain

a serious injury within the meaning of the significant disfigurement,

permanent consequential limitation of use, significant limitation of

use, and 90/180-day categories of serious injury as defined in

Insurance Law § 5102 (d). Plaintiff cross-moved for bifurcation of

the trial. Supreme Court denied the motion and granted the cross
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CA 13-00066 

motion. Defendants appeal.

With respect to the motion, we note at the outset that, contrary

to defendants’ contention, the court did not abuse its discretion in

considering the papers submitted by plaintiff in opposition to the

motion even though they were not timely served. Plaintiff offered a

valid excuse for the brief delay, and defendants were not prejudiced

by the late service inasmuch as they were able to submit a reply

affidavit (see CPLR 2004, 2214 [c]; Bucklaew v Walters, 75 AD3d 1140,

1141; see also Payne v Buffalo Gen. Hosp., 96 AD3d 1628, 1629). 

Regarding the merits, we conclude that defendants met their initial

burden on the motion with respect to the asserted categories of

serious injury by offering “ ‘persuasive evidence that plaintiff’s

alleged pain and injuries were related to a preexisting condition’ ”

(Kwitek v Seier, 105 AD3d 1419, 1420, quoting Carrasco v Mendez, 4

NY3d 566, 580). For example, defendants submitted the report of a

physician who examined plaintiff on behalf of defendants, wherein the

physician concluded that plaintiff suffered only minor strains and

sprains as a result of the accident and that plaintiff had since

recovered from those injuries. 

We further conclude that plaintiff’s submissions in opposition to

the motion failed to raise triable issues of fact whether plaintiff’s

neck or back injuries were causally related to the accident at issue,

and we therefore modify the order by granting defendant’s motion to

the extent that plaintiff’s action is predicated on those injuries. 

Although plaintiff submitted the affidavit of the physician who

treated him for his back and neck injuries, that affidavit was “purely

speculative and thus insufficient to raise an issue of fact as to

causation” because the physician began treating plaintiff after the

accident and “did not review plaintiff’s pre-accident medical records”

(id. at 1421). Additionally, while plaintiff reported to the

physician that he did not have any preexisting cervical spine

problems, that statement is belied by the evidence in plaintiff’s

medical records that he had a history of extensive degenerative disc

disease and spondylosis that predated the accident. 

Plaintiff also failed to raise a triable issue of fact whether,

as a result of the accident, he sustained a serious injury to his

shoulder under the significant disfigurement and 90/180-day

categories, and we therefore further modify the order by granting

defendants’ motion to that extent. Regarding the significant

disfigurement category, defendants met their burden of establishing

that the scar on plaintiff’s shoulder was the result of surgery that

predated the accident, and plaintiff failed to submit proof that the

surgery he alleges was necessary because of the accident exacerbated

the scar (see Kilmer v Strek, 35 AD3d 1282, 1282-1283). Regarding the

90/180-day category, plaintiff failed to submit any evidence

demonstrating that his usual and customary daily activities were

curtailed as a result of shoulder injuries sustained in the subject

accident and not as a result of his preexisting shoulder injuries (see

generally LaBeef v Baitsell, 104 AD3d 1191, 1192). 
-3- 999 

CA 13-00066 

We conclude, however, that the court properly denied the motion

with respect to the permanent consequential limitation of use and

significant limitation of use categories insofar as they related to

plaintiff’s shoulder injury because plaintiff raised a triable issue

of fact whether the accident caused him to sustain a serious injury to

his shoulder under those categories. In opposition to the motion,

plaintiff submitted the affidavit of the physician who treated him for

his shoulder injuries both before and after the accident, wherein the

physician opined that the accident caused pain and joint problems in

his right shoulder, requiring continuing treatment and surgery. “It

is well established that conflicting expert opinions may not be

resolved on a motion for summary judgment” (Fonseca v Cronk, 104 AD3d

1154, 1155 [internal quotation marks omitted]). We therefore conclude

that plaintiff raised a triable issue of fact whether there was a

causal relationship between plaintiff’s shoulder limitations and the

subject accident. 

With respect to the cross motion, we conclude that, contrary to

defendants’ contention, the court properly ordered that the trial be

bifurcated. Because liability encompasses both the issues of

negligence and serious injury (see Ruzycki v Baker, 301 AD2d 48, 51),

however, we note that plaintiff’s request on the cross motion to “try

[the] liability aspect of the case” before the “medical testimony” was

in fact a request to try the issues of negligence before the issue of

serious injury. The court properly granted the cross motion. “Judges

are encouraged to order a bifurcated trial . . . where it appears that

bifurcation may assist in a clarification or simplification of issues

and a fair and more expeditious resolution of the action” (22 NYCRR

202.42 [a]) and, here, separating the issue of negligence from the

issues relating to the medical testimony will simplify those issues. 

Entered: November 15, 2013 Frances E. Cafarell

Clerk of the Court