March 21, 2014
CLEVELAND L. THOMAS AND SHERRY D. THOMAS, PLAINTIFFS-RESPONDENTS,
JACOB K. HUH, USA TRUCK, INC., DEFENDANTS-APPELLANTS, ET AL., DEFENDANTS.
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.
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.
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.
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 A.D.3d 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 N.Y.2d 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 A.D.3d 898, 899).
Contrary to defendants' contention, the report of one of the 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 A.D.3d 1481, 1482-1483; Ashquabe v McConnell, 46 A.D.3d 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 A.D.3d 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 A.D.3d 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 A.D.3d at 1193).