Verkey v. HebardVerkey v. Hebard
Addressing first the issue of negligence, we conclude that Supreme Court erred in granting that part of plaintiff‘s cross motion with respect to that issue. We therefore modify the order accordingly. Although plaintiff met his initial burden by establishing “that the sole proximate cause of the accident was [defendant driver‘s] failure to yield the right of way to plaintiff” (Guadagno v Norward, 43 AD3d 1432, 1433 [2007]; see Kelsey v Degan, 266 AD2d 843, 843 [1999]), defendants raised a triable issue of fact by presenting evidence that the collision was head-on and that defendant driver was stopped in his lane of travel at the time of the collision (see Phillips v Bartholomew, 20 AD3d 920, 921-922 [2005]; see generally S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]). Contrary to plaintiff‘s contention, the fact that defendant driver entered a plea of guilty to a
The court properly denied both defendants’ motion and that part of plaintiff‘s cross motion for summary judgment on the issue of serious injury. We note at the outset that plaintiff‘s contention that his injury constitutes a permanent loss of use under
We conclude that there are issues of fact on the record before us with respect to the categories of permanent consequential limitation of use and significant limitation of use, based on the conflicting expert opinions submitted by the parties (see Cooper v City of Rochester, 16 AD3d 1117, 1118 [2005]). Notably, we reject defendants’ contention that the affirmed report of their retained physician established that plaintiff‘s injury was related to a preexisting condition and thus that, as a matter of law, it was not causally related to the instant accident (see generally Spanos v Fanto, 63 AD3d 1665, 1666 [2009]). Here, although plaintiff had a preexisting degenerative disc disease as noted on a CT scan taken on the day of the accident and an MRI taken one month later, that condition was, by all accounts, asymptomatic at the time of the accident. It is well settled that the aggravation of an asymptomatic condition can constitute a serious injury (see Austin v Rent A Ctr. E., Inc., 90 AD3d 1542, 1543 [2011]; Terwilliger v Knickerbocker, 81 AD3d 1350, 1351 [2011]). Moreover, the existence of an asymptomatic condition predating an accident merely indicates a plaintiff‘s susceptibility to injury; it does not constitute proof that a plaintiff did not sustain a serious injury in the subject accident (see Feaster v Boulabat, 77 AD3d 440, 440-441 [2010]). We further conclude that both defendants and plaintiff failed to meet their initial burden on the 90/180-day category (see Hedgecock v Pedro, 93 AD3d 1143, 1143 [2012]) and that, in any event, there is a triable issue of fact with respect to that category (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Present—Scudder, P.J., Fahey, Lindley, Sconiers and Martoche, JJ.