SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

309 

CA 15-01598 

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ. 

 

 

MARC J. NYHLEN AND STEPHANIE L. ADAMS-NYHLEN, 

PLAINTIFFS-RESPONDENTS-APPELLANTS, 

V MEMORANDUM AND ORDER

TIMOTHY J. GILES, DEFENDANT-APPELLANT-RESPONDENT.

 

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KEVIN E. LOFTUS OF

COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT. 

LAW OFFICES OF EUGENE C. TENNEY, PLLC, BUFFALO (EDWARD J. SCHWENDLER,

III, OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS. 

 

Appeal and cross appeal from an order of the Supreme Court, Erie

County (Shirley Troutman, J.), entered March 2, 2015. The order

denied the motion of defendant for summary judgment. 

It is hereby ORDERED that said cross appeal is unanimously

dismissed and the order is affirmed without costs. 

Memorandum: Plaintiffs commenced this action seeking damages for

injuries allegedly sustained by Marc J. Nyhlen (plaintiff) when his

vehicle was rear-ended by a vehicle operated by defendant. Plaintiff

alleged that, as a result of the accident, he sustained a serious

injury under the permanent consequential limitation of use,

significant limitation of use and 90/180-day categories (see Insurance

Law § 5102 [d]). Defendant appeals from an order denying his motion

seeking summary judgment dismissing the complaint on the ground that

plaintiff’s injuries were preexisting, and that plaintiff did not

sustain a qualifying injury as a result of the accident. As a

preliminary matter, we dismiss plaintiffs’ cross appeal because they

were not aggrieved by the order on appeal (see Parochial Bus Sys. v

Board of Educ. of City of N.Y., 60 NY2d 539, 544-545; Lillie v

Wilmorite, Inc., 92 AD3d 1221, 1222). 

We agree with plaintiffs that Supreme Court properly denied the

motion because defendant failed to meet his initial burden of

establishing that plaintiff did not sustain a qualifying injury as a

result of the accident (see generally Zuckerman v City of New York, 49

NY2d 557, 562). Addressing first the significant limitation of use

category, we note that defendant submitted plaintiff’s deposition

testimony and medical records establishing that he had, inter alia,

preexisting injuries to the cervical and lumbar spine, as well as the

report of an IME physician who opined that plaintiff sustained only a
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CA 15-01598 

cervical and lumbar strain as a result of the accident. Nevertheless,

defendant also submitted the reports of plaintiff’s treating

physician, who stated that plaintiff’s cervical injuries were

“markedly exacerbated” by the accident and that the lumbar injuries

were “solely the result of his motor vehicle accident.” The reports

also provide quantitative assessments of plaintiff’s limited range of

motion. Thus, defendant failed to eliminate all issues of fact

whether plaintiff sustained a significant limitation of use of the

cervical and lumbar spine as a result of the accident (see Clark v

Aquino, 113 AD3d 1076, 1076; Pugh v Tantillo, 101 AD3d 1658, 1658-

1659). 

With respect to the 90/180-day category, defendant also submitted

plaintiff’s medical records stating that his level of disability

varied from between 50% and 100% for 18 months following the accident. 

Thus, based upon the physician reports and medical records, together

with plaintiff’s deposition testimony, we conclude that defendant

failed to eliminate all issues of fact concerning that category (see

Clark, 113 AD3d at 1078). Finally, based upon the same reports and

records, we conclude that defendant failed to eliminate all issues of

fact with respect to the permanent consequential limitation of use

category (see id. at 1077; Hedgecock v Pedro, 93 AD3d 1250, 1252). 

Entered: April 29, 2016 Frances E. Cafarell

Clerk of the Court