| Coston v McGray |
| 2008 NY Slip Op 01885 [49 AD3d 934] |
| March 6, 2008 |
| Appellate Division, Third Department |
| Willie Coston et al., Appellants, v Keith McGray et al., Defendants,and Rosa Coston et al., Respondents. |
—[*1] Hanson & Fishbein, Albany (Richard J. Fishbein of counsel), for Rosa Coston and another,respondents. Law Office of Michael M. Emminger, Albany (Joan Matalavage of counsel), for AmyFriedman and another, respondents. Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., New York City (Jamie Kulovitz ofcounsel), for Charlotte Carr, respondent.
Mercure, J.P. Appeal from a judgment of the Supreme Court (Work, J.), entered January 5,2007 in Ulster County, which, among other things, granted defendants' cross motions forsummary judgment dismissing the complaint.
Plaintiff Willie Coston (hereinafter plaintiff) and his wife, derivatively, commenced thisaction to recover for injuries to his cervical and lumbar spine allegedly sustained in two motorvehicle accidents in November 2002 and February 2003. Following joinder of issue, SupremeCourt ultimately granted summary judgment dismissing the complaint, concluding that plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a resultof [*2]either accident. Plaintiffs appeal and we now affirm.
"[E]ven where there is objective medical proof, when additional contributory factorsinterrupt the chain of causation between the accident and claimed injury—such as. . . a preexisting condition—summary dismissal of the complaint may beappropriate" (Pommells v Perez, 4NY3d 566, 572 [2005]). Here, defendants met their initial burden by submitting the report ofan independent medical examiner who, based upon his review of plaintiff's medical records and amedical history taken from plaintiff, detailed prior injuries to plaintiff's cervical and lumbarspine. Specifically, the report reveals that plaintiff was knocked off a ladder in 1992, causing himto fall 20 feet and to suffer disc herniation, severe back pain, and upper extremity and shoulderpain. Plaintiff was ultimately diagnosed with low back syndrome, lumbar radiculopathy andcervical syndrome, and was still suffering back pain, degenerative disc disease, sciatica, andusing a cane six years after the fall. In addition, the report noted that a bill of particulars relatedto the fall alleged that plaintiff had suffered injury to his neck. Moreover, during the course oftreatment as a result of that fall, plaintiff also revealed that he had a prior gunshot wound in theupper left chest and that a bullet lodged there caused him "difficulty with his neck and difficultyusing his left arm."
The independent medical examiner's report further revealed that in 1999, plaintiff wasinvolved in a motor vehicle accident in which the car flipped several times and he was ejectedfrom the vehicle. Thereafter, he complained of double vision, pain in the back, shoulders andknees, and numbness in his feet and left leg. Plaintiff also fell in December 2000, aggravating hislow back pain, and he was diagnosed with lumbar radiculopathy approximately one year prior tothe first of the two car accidents at issue here. Notably, although he denied ever having anyproblems with his neck in his deposition testimony, plaintiff confirmed that the 1992 fall and1999 accident caused him significant back injuries.[FN*]
In light of this proof of prior neck and back injuries, the burden shifted to plaintiffs to"com[e] forward with evidence indicating a serious injury causally related to the [subject]accident[s]" (Pommells v Perez, 4 NY3d at 579; see Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007][explaining that "(o)nce a defendant has presented evidence of a preexisting injury, even in theform of an admission made at a deposition, it is incumbent upon the plaintiff to present proof tomeet the defendant's asserted lack of causation"]; McCarthy v Bellamy, 39 AD3d 1166, 1167 [2007] [findingsummary dismissal appropriate where the plaintiff failed to address evidence of preexistingcondition]; Figueroa v Castillo, 34AD3d 353, 353-354 [2006] [concluding that evidence of prior and subsequent injuries tosame knee established additional contributing factors shifting the burden of proof to theplaintiff]). The evidence submitted by plaintiffs in opposition, however, did not refutedefendants' showing of preexisting injuries. Plaintiffs relied solely upon the affirmation of LuisMendoza Jr., who began treating plaintiff in December 2002, following the first of the twoaccidents at issue here. That affirmation provides no objective basis for concluding that plaintiff'sinjuries were caused by these two accidents rather than the prior gunshot, accidents and falls;indeed, Mendoza's affirmation makes no reference at all to the prior incidents and injuries. Assuch, "there is an inadequate foundation to [*3]support[Mendoza's] conclusion that plaintiff's medical conditions are causally related to the accident[s]"at issue and Supreme Court properly dismissed the complaint (Maye v Stearns, 19 AD3d 902,903 [2005]; see Pommells v Perez, 4 NY3d at 579-580; Franchini v Palmieri, 1 NY3d 536,537 [2003]; Montgomery v Pena, 19AD3d 288, 290 [2005]).
Plaintiffs' remaining arguments are either not properly before us or, upon consideration, havebeen found to be lacking in merit.
Spain, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, with onebill of costs.
Footnote *: The independent medicalexaminer's report also indicated that plaintiff was in another car accident in 2004— afterthe two incidents at issue here—causing him neck pain.