Jenkins v. City of Utica

Jenkins v City of Utica 2026 NY Slip Op 05872 October 9, 2026 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. TIFFANY S. JENKINS, PLAINTIFF-APPELLANT, v CITY OF UTICA AND JAMES FEMIA, DEFENDANTS-RESPONDENTS. Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department Decided on October 9, 2026 589 CA 25-01860 Present: Whalen, P.J., Lindley, Curran, Greenwood, And Skinner, JJ. RALPH W. FUSCO, WASHINGTON MILLS, FOR PLAINTIFF-APPELLANT. JAMES A. LONG, SYRACUSE, GERBER CIANO KELLY BRADY LLP, GARDEN CITY (BRENDAN T. FITZPATRICK OF COUNSEL), FOR DEFENDANTS-RESPONDENTS. Appeal from an order of the Supreme Court, Oneida County (James P. McClusky, J.), entered July 28, 2025, in a personal injury action. The order granted the motion of defendants for summary judgment dismissing the complaint. [*1] It is hereby ORDERED that the order 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 90/180-day category of serious injury within the meaning of Insurance Law § 5102 former (d), and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries that she allegedly sustained in an accident that occurred when her vehicle was rear-ended by a vehicle operated by defendant James Femia and owned by defendant City of Utica. Defendants stipulated to Femia's negligence, leaving for resolution only the issues of proximate cause, serious injury, and damages. Supreme Court granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 former (d). Plaintiff now appeals. We agree with plaintiff that defendants failed to meet their initial burden with respect to the 90/180-day category of serious injury, but conclude that defendants met their burden with respect to the permanent consequential limitation of use (PCLU) and significant limitation of use (SLU) categories of serious injury. In support of their motion, defendants submitted, inter alia, the report of a physician who performed a physical examination of plaintiff on behalf of defendants years after the accident. The physician concluded that, while there were significant deficits in plaintiff's range of motion (ROM), all of the findings were based on plaintiff's subjective complaints of pain. Moreover, he found no objective evidence of any serious injury, noting that plaintiff suffered only sprains, which had all resolved, and her "self-described" limits did not match any objective findings. Despite imaging establishing some deficits in her spine, the physician stated that virtually all of the deficits were preexisting, albeit slightly worse than those shown in the 2013 imaging. According to the physician, plaintiff's issues arose from degenerative disc disease. The physician also submitted an affirmation in which he reaffirmed the conclusions in his report. Plaintiff opposed defendants' motion by submitting certain imaging studies which she claimed established a serious injury under every alleged category. Plaintiff also submitted the report of an orthopaedic surgeon who performed a medical examination of plaintiff on behalf of the insurance company and concluded that plaintiff's alleged ROM limitations were based on her "subjective efforts." In his opinion, plaintiff had sustained only muscle sprains that had resolved [*2]or were resolving. He found no serious injury that was supported by objective evidence and instead found that plaintiff's injuries were supported largely by her subjective complaints of pain. Plaintiff's contention that defendants failed to meet their initial burden on the motion due to their failure to submit all of the pleadings, as required by CPLR 3212 (b), "is not properly before us" inasmuch as it was raised for the first time on appeal (Matter of Hoge [Select Fabricators, Inc.], 96 AD3d 1398, 1399 [4th Dept 2012]). Plaintiff further contends that defendants' submission of the physician's report raised triable issues of fact with respect to the PCLU and SLU categories and that the related affirmation of the physician, also submitted by defendants, was inconsistent with his report. We reject those contentions. Although the physician reported significant limitations in plaintiff's ROM in various areas, those alleged limitations were " 'based upon plaintiff's subjective complaints of pain and [were] unsupported by objective medical proof' " (Roger v Soos, 175 AD3d 937, 938 [4th Dept 2019]; see Bleier v Mulvey, 126 AD3d 1323, 1324 [4th Dept 2015]; Griffo v Colby, 118 AD3d 1421, 1422 [4th Dept 2014]). Thus, that report "did not raise issues of fact precluding summary judgment" (Roger, 175 AD3d at 938; cf. Zazulak v Sarna, 243 AD3d 1326, 1328 [4th Dept 2025]). Moreover, we conclude that the physician's affirmation was not inconsistent with nor did it contradict his initial report. Plaintiff also contends that the physician's report submitted by defendants incorporated voluminous medical records that raise triable issues of fact with respect to the PCLU and SLU categories of serious injury. We likewise reject that contention. First, although the physician listed the documents that he reviewed, he did not specifically incorporate those documents into his report. Second, those records are not in the record on appeal. Plaintiff, as the appellant, bore the burden of submitting an adequate appellate record and "must suffer the consequences of submitting an incomplete record" (Curto v Zittel's Dairy Farm, 106 AD3d 1482, 1484 [4th Dept 2013] [internal quotation marks omitted]; see Carter v Flood, 243 AD3d 1297, 1297 [4th Dept 2025]). Plaintiff correctly contends that the physician's report and affirmation do not address her allegations that, even if she suffered from degenerative disc disease before the accident, she was asymptomatic until after the accident and, as a result, the accident was the proximate cause of her pain relating to that disease. Nevertheless, under the circumstances of this case, we conclude that defendants still met their burden of establishing that plaintiff did not sustain a serious injury under the PCLU and SLU categories. Generally, "the aggravation of an asymptomatic condition can constitute a serious injury . . . 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" (Verkey v Hebard, 99 AD3d 1205, 1206 [4th Dept 2012] [emphasis added]; see Fanti v McLaren, 110 AD3d 1493, 1494 [4th Dept 2013]). Contrary to plaintiff's contention, a defendant does not have to rule out aggravation of a preexisting medical condition to meet the initial burden with respect to the PCLU and SLU categories. Rather, a defendant need only establish "that plaintiff suffered from a preexisting degenerative condition in her spine and did not suffer a traumatic injury as a result of the accident" (Green v Repine, 186 AD3d 1059, 1061 [4th Dept 2020]; see Woodward v Ciamaricone, 175 AD3d 942, 943 [4th Dept 2019]; see also Washington-Livingston v Purpura, 208 AD3d 1585, 1586 [4th Dept 2022]; Roger, 175 AD3d at 938). Defendants did just that in this case. The physician's report and affirmation established that plaintiff's issues arose from preexisting degenerative disc disease and that there was no objective medical evidence to support that plaintiff suffered further injury as a result of the accident. Defendants also submitted a police report from the accident, which states that it was a low-impact, rear-end collision with no reported injuries and only minor damages to the cars. In addition, defendants submitted excerpts from plaintiff's medical records, which stated that, after the accident, plaintiff had "acute bilateral thoracic back pain" and was diagnosed with minor injuries, including "acute cervical myofascial strain" and "left cervical radiculopathy." The notes state that there were "[n]o worrisome features to suggest serious injury." We conclude that, in opposition, plaintiff failed to raise questions of fact whether the injuries, in light of the preexisting medical history, were causally related to the accident (see Roger, 175 AD3d at 938-939; Woodward, 175 AD3d at 944; cf. Green, 186 AD3d at 1061). Instead, plaintiff's submissions, i.e., her imaging studies and the orthopaedic surgeon's report, each indicated that there was nothing to suggest any serious injury as a result of the accident. Plaintiff finally contends that the court erred in granting the motion with respect to the 90/180-day category of serious injury inasmuch as defendants failed to meet their burden on the motion with respect to that category. We agree, and we therefore modify the order accordingly. Defendants never referenced that category in their motion and did not address, in any way, whether plaintiff was "curtailed from performing [her] usual activities to a great extent rather than some slight curtailment during the time period at issue" (Williams v Jones, 139 AD3d 1346, 1348 [4th Dept 2016] [internal quotation marks omitted]). Moreover, the physician, whose report and affirmation defendants submitted, "did not examine plaintiff until over one year after the accident, which would call into question his ability to opine on any limitations that plaintiff had during the initial 180-day period following the accident" (Sadler v James, 217 AD3d 1334, 1336 [4th Dept 2023]; see Hawramee v Serena, 192 AD3d 1592, 1593 [4th Dept 2021]). Inasmuch as defendants failed to meet their initial burden on the motion with respect to the 90/180-day category, "the burden never shifted to plaintiff, and denial of the motion in [that] respect[ ] was required 'regardless of the sufficiency of the opposing papers' " (Mussari v Murray, 211 AD3d 1619, 1621 [4th Dept 2022], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Walk-Reinard v Smith, 197 AD3d 888, 890 [4th Dept 2021]). Entered: October 9, 2026 Ann Dillon Flynn Clerk of the Court