SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1415 

CA 12-01156 

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ. 

 

HAROLD WILSON AND GEORGIA WILSON, 

PLAINTIFFS-APPELLANTS,

V MEMORANDUM AND ORDER

CHRISTOPHER COLOSIMO AND R.J. CHEVROLET, INC., 

DOING BUSINESS AS BOB JOHNSON CHEVROLET, 

DEFENDANTS-RESPONDENTS. 

HOGAN WILLIG, AMHERST (ERIC B. GROSSMAN OF COUNSEL), FOR

PLAINTIFFS-APPELLANTS. 

TREVETT CRISTO SALZER & ANDOLINA, P.C., ROCHESTER (ERICA M. DIRENZO OF

COUNSEL), FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from an order and judgment (one paper) of the Supreme

Court, Monroe County (Thomas A. Stander, J.), entered September 15,

2011. The order and judgment granted the motion of defendants for

summary judgment dismissing the complaint and denied the cross motion

of plaintiffs for partial summary judgment. 

It is hereby ORDERED that the order and judgment 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 of use and

significant limitation of use categories of serious injury within the

meaning of Insurance Law § 5102 (d) and as modified the order and

judgment is affirmed without costs. 

Memorandum: Plaintiffs commenced this action seeking damages for

injuries that Harold Wilson (plaintiff) allegedly sustained when the

recycling truck he was driving was rear-ended by a vehicle owned by

defendant R.J. Chevrolet, Inc., doing business as Bob Johnson

Chevrolet, and operated by defendant Christopher Colosimo. According

to plaintiffs’ supplemental bill of particulars, plaintiff allegedly

sustained a serious injury under the permanent consequential

limitation of use, the significant limitation of use and the 90/180-

day categories of serious injury. Defendants initially moved for

summary judgment dismissing the complaint on the ground that plaintiff

did not sustain a serious injury pursuant to Insurance Law § 5102 (d)

that was proximately caused by the accident. Plaintiffs opposed the

motion and cross-moved for partial summary judgment on their claim for

economic loss in excess of basic economic loss. Supreme Court granted

defendants’ motion and denied plaintiffs’ cross motion. We note that
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CA 12-01156 

the order does not address the dismissal of plaintiffs’ claim for

economic loss, which does not require a showing of serious injury (see

generally Montgomery v Daniels, 38 NY2d 41, 47-48; Colvin v

Slawoniewski, 15 AD3d 900, 900). In its bench decision, however, the

court awarded defendants summary judgment dismissing that claim on the

authority of CPLR 3212 (b). Where, as here, “ ‘there is a conflict

between an order and a decision,’ ” the decision controls (Stivers v

Brownell, 63 AD3d 1516, 1517-1518). We conclude that the 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.

Defendants met their initial burden on the motion by submitting

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

“no sign of injury to the cervical, thoracic or lumbar spine, and a

marked exaggeration of the response to testing in the upper and lower

extremities and no objective findings concerning neck, shoulders,

lumbar spine, hips, knees, ankles, and feet.” Defendants’ expert

attributed plaintiff’s complaints of pain to preexisting injuries and

“multilevel degenerative changes.” Furthermore, because defendants’

expert concluded that the only objective medical findings of an injury

to plaintiff were related to a preexisting degenerative condition of

his spine, “plaintiff[s] had the burden to come forward with evidence

addressing defendant[s’] claimed lack of causation” (Carrasco v

Mendez, 4 NY3d 566, 580; see Mendola v Doubrava, 99 AD3d 1247, 1248;

Webb v Bock, 77 AD3d 1414, 1415).

In opposition to defendants’ motion, however, plaintiffs raised

triable issues of fact with respect to the permanent consequential

limitation of use and significant limitation of use categories of

serious injury by submitting the affidavit and attached report of

plaintiff’s treating chiropractor as well as an affidavit and attached

reports and records from a physician specializing in occupational

medicine. Those documents “contain the requisite objective medical

findings that raise issues of fact whether plaintiff sustained a

serious injury” as a result of the instant accident (Roll v Gavitt, 77

AD3d 1412, 1413; see Terwilliger v Knickerbocker, 81 AD3d 1350, 1351;

Harris v Carella, 42 AD3d 915, 916-917; cf. Caldwell v Grant [appeal

No. 2], 31 AD3d 1154, 1155). 

Nevertheless, we agree with defendants that the court properly

granted that part of their motion regarding the 90/180-day category of

serious injury. Defendants submitted competent evidence establishing

that plaintiff’s activities “ ‘were not curtailed to a great extent’

and that [he] therefore did not sustain a serious injury under the

90/180[-day] category of serious injury” (Schreiber v Krehbiel, 64

AD3d 1244, 1246). Plaintiffs submitted nothing in opposition to

defendants’ motion with respect to that category and thus failed to

raise a triable issue of fact whether plaintiff “was unable to perform

substantially all of the material acts that constituted [his] usual

and customary daily activities during the requisite period of time”

(Burke v Moran, 85 AD3d 1710, 1711; see generally Licari v Elliott, 57

NY2d 230, 236).
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CA 12-01156 

Finally, we conclude that the court properly denied plaintiffs’

cross motion and granted defendants summary judgment pursuant to CPLR

3212 (b) on plaintiffs’ claim for economic loss in excess of basic

economic loss. Although a claim for economic loss does not require

the plaintiff to have sustained a serious injury (see generally

Montgomery, 38 NY2d at 47-48; Colvin, 15 AD3d at 900; Barnes v

Kociszewski, 4 AD3d 824, 825), plaintiffs here “failed to produce any

evidence in admissible form which supports such a claim” (Watford v

Boolukos, 5 AD3d 475, 476; see Insurance Law §§ 5102 [a] [1] - [3];

5104 [a]). While plaintiffs correctly contend that they need not

await the full $50,000 payout for basic economic losses from their

first-party no-fault policy before making a claim under Insurance Law

§ 5102 (a) for those additional economic losses that exceed the basic

economic loss threshold, they still failed to establish that

plaintiff’s total economic losses here did actually “exceed basic

economic loss” (Watkins v Bank of Castile, 172 AD2d 1061, 1062

[emphasis added]; see Diaz v Lopresti, 57 AD3d 832, 833). 

Entered: December 28, 2012 Frances E. Cafarell

Clerk of the Court