Category-Specific Proof Governs Serious-Injury Summary Judgment: Degenerative Conditions and the 90/180-Day Rule

1. Introduction

Jenkins v City of Utica concerns the evidence required to obtain summary judgment dismissing a motor-vehicle personal injury action under New York’s serious-injury threshold. Its central lesson is that proof sufficient to defeat permanent or significant limitation claims does not necessarily defeat a claim based on substantial disruption of the plaintiff’s activities during the first 180 days after an accident.

Plaintiff Tiffany S. Jenkins alleged injuries after 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. That concession left unresolved whether the collision proximately caused plaintiff’s claimed injuries, whether those injuries satisfied Insurance Law § 5102 former (d), and the amount of any recoverable damages.

Supreme Court, Oneida County, granted defendants’ motion for summary judgment dismissing the complaint because plaintiff had not sustained a serious injury. On appeal, the Fourth Department distinguished among three asserted categories: permanent consequential limitation of use, significant limitation of use, and the 90/180-day category.

The decision clarifies two related principles. First, under the circumstances presented, defendants could meet their initial burden on the limitation categories by establishing preexisting degeneration and the absence of accident-related traumatic injury, without separately ruling out every alleged aggravation of an asymptomatic condition. Second, defendants still had to address the distinct requirements of the 90/180-day category. Their failure to do so required partial reinstatement of the action.

2. Summary of the Opinion

The court unanimously modified the order on the law, reinstating the complaint, as amplified by the bill of particulars, only insofar as it asserted serious injury under the 90/180-day category. The order was otherwise affirmed, without costs.

Importantly, reinstatement did not establish that plaintiff actually sustained a 90/180-day serious injury. It meant only that defendants had not demonstrated their entitlement to judgment dismissing that claim.

3. Analysis: Precedents Cited

A. Preservation of Arguments for Appeal

Matter of Hoge [Select Fabricators, Inc.], 96 AD3d 1398, 1399 [4th Dept 2012]. The court relied on this decision to decline consideration of plaintiff’s argument that defendants failed to submit all pleadings required by CPLR 3212 (b). Because plaintiff first raised the objection on appeal, it was “not properly before” the appellate court. This was a preservation ruling, not a determination that the alleged omission was permissible or immaterial.

B. Subjective Pain and Objectively Supported Limitations

Roger v Soos, 175 AD3d 937, 938–939 [4th Dept 2019]. This was a principal substantive authority. The court invoked it to explain why reported range-of-motion restrictions did not create a factual dispute when they rested on subjective pain complaints and lacked objective medical support. The opinion also relied on it when evaluating defendants’ showing concerning degeneration and plaintiff’s failure to establish an accident-related injury in opposition. Its repeated use connects the objective-proof requirement with the separate question of causation.

Bleier v Mulvey, 126 AD3d 1323, 1324 [4th Dept 2015], and Griffo v Colby, 118 AD3d 1421, 1422 [4th Dept 2014]. These decisions reinforce the proposition that restrictions attributed to subjective complaints, without objective medical corroboration, need not defeat summary judgment. Their role was particularly important because defendants’ physician acknowledged significant apparent restrictions. The court examined the medical basis for those restrictions rather than treating the word “significant” as automatically satisfying the statute.

Zazulak v Sarna, 243 AD3d 1326, 1328 [4th Dept 2025]. The court cited this decision comparatively when concluding that the physician’s report did not create issues of fact precluding summary judgment. The supplied opinion does not describe the facts or reasoning of Zazulak v Sarna. Its significance here is therefore limited to the contrast indicated by the citation: not every expert report recording limitations necessarily warrants the same summary-judgment outcome.

C. The Appellant’s Responsibility for the Record

Curto v Zittel's Dairy Farm, 106 AD3d 1482, 1484 [4th Dept 2013]. The court drew from this decision the rule that an appellant must provide an adequate appellate record and “must suffer the consequences of submitting an incomplete record.” Plaintiff could not rely on supposedly favorable medical records that the appellate court did not have before it.

Carter v Flood, 243 AD3d 1297, 1297 [4th Dept 2025]. This decision supplied additional support for the record-completeness principle. Together, these authorities explain why references to documents reviewed by an expert were insufficient: identifying records does not place their substantive contents before the appellate court.

D. Preexisting Degeneration and Accident-Related Aggravation

Verkey v Hebard, 99 AD3d 1205, 1206 [4th Dept 2012]. The court expressly acknowledged this decision’s protection for plaintiffs with preexisting but asymptomatic conditions. An accident’s aggravation of such a condition can constitute a serious injury, and the condition’s prior existence may show susceptibility to injury rather than disprove injury. This authority prevents degeneration from becoming an automatic defense.

Fanti v McLaren, 110 AD3d 1493, 1494 [4th Dept 2013]. This case further supports the possibility that aggravation of an asymptomatic condition may satisfy the statutory threshold. Its citation confirms that the court did not reject aggravation claims as a class; it instead evaluated the proof supporting this particular claim.

Green v Repine, 186 AD3d 1059, 1061 [4th Dept 2020]. This decision supplied the formulation governing defendants’ initial showing: proof that the plaintiff suffered from a preexisting degenerative spinal condition and did not sustain a traumatic injury from the accident. The court also cited it comparatively when assessing plaintiff’s opposition. These two uses distinguish the sufficiency of defendants’ initial evidence from whether plaintiff’s responsive evidence creates a factual dispute.

Woodward v Ciamaricone, 175 AD3d 942, 943–944 [4th Dept 2019]. The court used this authority at both stages of the analysis. It supported defendants’ initial showing based on degeneration and the absence of traumatic injury, and it supported the conclusion that plaintiff failed to raise a causation issue in light of her medical history. Its influence underscores that an established degenerative explanation requires a medically supported response, not merely an assertion that symptoms followed the collision.

Washington-Livingston v Purpura, 208 AD3d 1585, 1586 [4th Dept 2022]. This decision provided further support for the same defense showing. Read alongside Green v Repine, Woodward v Ciamaricone, and Roger v Soos, it places the holding within an existing line of Fourth Department authority rather than announcing that every preexisting condition defeats recovery.

E. The Distinct 90/180-Day Inquiry

Williams v Jones, 139 AD3d 1346, 1348 [4th Dept 2016]. This decision supplied the functional standard: the plaintiff must be curtailed from usual activities “to a great extent rather than some slight curtailment” during the relevant period. Defendants’ motion did not address that question. Evidence directed to present physical limitations therefore did not resolve the necessary historical inquiry.

Sadler v James, 217 AD3d 1334, 1336 [4th Dept 2023]. The court relied on this case to identify the weakness of an examination conducted well after the statutory period. An examination more than one year after an accident calls into question the examiner’s ability to assess restrictions during the initial 180 days. Here, the defense examination occurred years after the collision.

Hawramee v Serena, 192 AD3d 1592, 1593 [4th Dept 2021]. This decision reinforced the timing concern. These authorities do not establish that a later examination can never inform a retrospective opinion; they highlight the need for evidence actually addressing the relevant period, which was missing here.

F. The Moving Party Must First Establish Entitlement to Judgment

Mussari v Murray, 211 AD3d 1619, 1621 [4th Dept 2022]. The court used this decision to explain that defendants’ failure to meet their initial burden meant the burden never shifted to plaintiff. Consequently, the weakness of plaintiff’s opposition could not justify dismissal of the 90/180-day claim.

Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]. Quoted through Mussari v Murray, this Court of Appeals authority supplies the governing summary-judgment principle: an insufficient initial showing requires denial “regardless of the sufficiency of the opposing papers.” It is the procedural foundation for the partial reversal.

Walk-Reinard v Smith, 197 AD3d 888, 890 [4th Dept 2021]. This decision provided additional support for applying that burden rule to the serious-injury motion. It confirms that an opponent’s evidentiary shortcomings do not cure a movant’s failure to establish entitlement to judgment.

4. Analysis: Legal Reasoning

A. Significant Apparent Restrictions Were Not Necessarily Objective Proof

Defendants’ physician reported substantial range-of-motion deficits but attributed them to plaintiff’s subjective pain complaints. He found that the accident-related sprains had resolved and that plaintiff’s self-described restrictions did not correspond to objective findings. Although spinal imaging showed abnormalities, he attributed virtually all of them to preexisting degeneration, noting only slight worsening compared with 2013 imaging.

The court therefore found no internal contradiction requiring a trial. Recording restricted movement and concluding that the restriction lacks objective medical support are not necessarily inconsistent findings. The physician’s subsequent affirmation reaffirmed, rather than contradicted, his report.

B. Possible Aggravation and Proof of Serious Injury Are Different Questions

Plaintiff correctly observed that defendants’ physician did not directly address her allegation that she had been asymptomatic before the accident and experienced degenerative-disease-related pain afterward. The court nevertheless held that defendants satisfied their initial burden on the two limitation categories.

The reasoning depends on a careful distinction. A preexisting asymptomatic condition can be aggravated by an accident, but the possibility of aggravation does not itself establish a qualifying serious injury. In this case, defendants supplied medical evidence attributing plaintiff’s condition to degeneration and finding no objective support for further accident-related injury.

Accordingly, defendants did not have to separately rule out aggravation to meet their initial burden under these categories. This is a contextual holding, not a categorical rule that degeneration defeats all aggravation claims. The opinion expressly preserves the principle that objectively supported aggravation may constitute serious injury.

C. Contemporaneous Evidence Reinforced the Defense Showing

Defendants also submitted a police report describing a low-impact rear-end collision, minor vehicle damage, and no reported injuries. Medical-record excerpts documented acute back pain, cervical myofascial strain, and left cervical radiculopathy, but included the assessment that there were “[n]o worrisome features to suggest serious injury.”

These materials supported the physician’s conclusions. The court did not establish a rule that minor vehicle damage or the absence of immediately reported injuries necessarily excludes serious injury; it assessed those circumstances alongside the medical evidence.

D. Plaintiff’s Opposition Did Not Supply the Missing Medical Link

Plaintiff submitted imaging studies and an orthopaedic surgeon’s report prepared following an examination undertaken for an insurance company. That surgeon likewise attributed the apparent movement restrictions to plaintiff’s “subjective efforts,” found only resolved or resolving muscle sprains, and identified no objectively supported serious injury.

The submissions therefore did not establish a factual dispute about accident-related serious injury in light of the preexisting history. Imaging abnormalities alone did not overcome the medical explanation attributing the condition to degeneration.

Nor could plaintiff rely on unspecified favorable contents of the records listed in defendants’ physician’s report. The physician had not specifically incorporated those records, and they were missing from the appellate record.

E. The 90/180-Day Category Required a Different Inquiry

The decisive defect was that defendants never referenced the 90/180-day category in their motion and did not address whether plaintiff’s usual activities had been substantially curtailed during the relevant period. The physician’s much later examination did not fill that gap.

A medical opinion about plaintiff’s condition years later does not necessarily establish what she could do during the first six months after the collision. Likewise, failure to establish permanent or significant limitation does not necessarily exclude a qualifying nonpermanent impairment during that earlier period.

Because defendants failed at the initial stage, plaintiff was not required to cure weaknesses in her own evidence to preserve that claim. The burden analysis thus produced different outcomes for different categories within the same action.

5. Potential Impact

Category-Specific Motion Practice

The decision cautions defendants seeking dismissal of an entire complaint to address every asserted serious-injury category. It does not require a different expert or separate documents for each category, but the evidence must answer each category’s distinct requirements.

More Precise Use of Degenerative-Condition Evidence

For limitation claims, a supported showing of degeneration and no traumatic injury may satisfy the initial defense burden without an express rejection of every aggravation allegation. Plaintiffs, however, remain able to establish objectively supported aggravation. The opinion therefore encourages medical evidence that explains both the nature of the impairment and its relationship to the accident.

Attention to Historical Activity Restrictions

The 90/180-day ruling encourages closer examination of contemporaneous medical records, restrictions on work or other activities, and evidence describing the plaintiff’s functioning during the statutory period. These are practical implications of the holding, not a mandatory evidentiary checklist prescribed by the court.

Stronger Appellate Record Preparation

The procedural rulings also have practical force: objections should be preserved in the trial court, and medical materials relied upon on appeal must actually be included in the record. An expert’s list of reviewed documents is not a substitute for the documents themselves.

Overall, the decision chiefly clarifies and applies existing Fourth Department precedent. Its significance lies in showing how those principles interact within a single motion, rather than in creating a new statutory category or abolishing an established theory of injury.

6. Complex Concepts Simplified

Serious injury

A statutory threshold, not simply a description of painful symptoms. The opinion applies Insurance Law § 5102 former (d); this commentary does not assume that a later statutory version governs the accident.

Permanent consequential limitation of use (PCLU)

A qualifying permanent restriction in the use of a body organ or member. Pain alone does not necessarily establish the required lasting limitation.

Significant limitation of use (SLU)

A sufficiently substantial restriction in a body function or system. Unlike PCLU, it need not be permanent, but the claimed limitation must have adequate medical support.

90/180-day category

A medically determined, nonpermanent injury or impairment that prevents substantially all of the person’s usual and customary daily activities for at least 90 of the first 180 days after the injury. The restriction must be substantial, not merely a modest inconvenience.

Objective medical evidence

Medical support beyond the patient’s description of pain, such as supported examination findings or imaging. An imaging abnormality still requires interpretation: it may reflect degeneration rather than accident-related injury.

Aggravation of an asymptomatic condition

Worsening or activation of a previously symptom-free condition. It may be compensable, but the plaintiff must still establish the applicable serious-injury threshold and causal connection.

Initial burden and burden shifting

The party requesting summary judgment must first establish entitlement to it. Only then must the opponent produce evidence of a genuine factual dispute.

Proximate cause

The legally sufficient connection between the accident and the claimed injury. Admitting negligent driving does not automatically admit that the collision caused every alleged medical condition.

Bill of particulars

A document specifying details of the claims, including the injuries and serious-injury categories asserted. The court’s reinstatement covered the complaint as amplified by that document.

7. Conclusion

Jenkins v City of Utica establishes a clear practical boundary: evidence sufficient to defeat permanent and significant limitation claims does not automatically dispose of a 90/180-day claim.

The court upheld dismissal of the limitation categories because defendants supplied a supported degenerative explanation and plaintiff failed to produce contrary objective medical proof. It reinstated the 90/180-day category because defendants never addressed the required early-period activity restrictions.

The broader lesson is that serious-injury litigation demands category-specific evidence, careful separation of causation from statutory severity, and disciplined attention to summary-judgment burdens. The surviving claim remains to be proved; the appellate ruling preserves that opportunity rather than deciding its merits.