| Alteri v Benson |
| 2008 NY Slip Op 03269 [50 AD3d 1274] |
| April 11, 2008 |
| Appellate Division, Third Department |
| Lori Alteri, Appellant, v Keith Benson,Respondent. |
—[*1] Burke, Scolamiero, Mortati & Hurd, Albany (Thomas J. Reilly of counsel), forrespondent.
Carpinello, J. Appeal from an order of the Supreme Court (Dawson, J.), entered February 26,2007 in Essex County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff commenced this action seeking damages for injuries she allegedly sustained to herneck, back and shoulder when the motor vehicle in which she was a passenger went off the roadand flipped over. At issue is an order of Supreme Court granting defendant's motion for summaryjudgment dismissing the complaint on the ground that plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d).[FN*]Upon our review of the record, we find that the motion was properly granted. Accordingly, weaffirm.[*2]
In moving for summary judgment, defendant submitted,among other documents, plaintiff's deposition testimony, certain medical records and the reportand affidavit of an orthopedic surgeon who conducted an independent medical examination ofher and reviewed her medical history. During plaintiff's testimony, she detailed her numerouscomplaints since the accident, including neck, back, hip and shoulder pain. According to her,despite a substantial regimen of physical therapy, she experiences pain on a daily basis for whichshe takes ibuprofen and which limits her ability to perform various household and recreationalactivities. She acknowledged, however, that she has not missed one day of work as a nurse as aresult of these injuries—a position, we note, which entails a 40-minute daily commuteeach way.
Moreover, according to the report and affidavit of defendant's expert, his physicalexamination of plaintiff "was completely normal . . . in every respect." Sheexhibited complete symmetric range of motion of both shoulders and had good strength in herrotator cuffs. The extension of her spine was normal and she was able to reach down and touchher toes, walk on her toes and heels and perform a deep knee bend. Her straight leg test was"completely normal" and she also had a good range of motion in her hips and knees with noevidence of muscle atrophy. Furthermore, according to this expert, certain complaints during theexamination had a psychological, rather than physical, basis.
It was further established by this expert that an MRI of plaintiff's lumbar spine revealed nofractures, spondylolisthesis or ligament injury. To the extent that objective findings of injury wererevealed by the MRI, this expert opined that plaintiff "does not exhibit objective symptoms ofinjury relating to [such] findings." Likewise, while an MRI revealed that her cervical spine waswithin normal limits with the exception of "mild acquired spinal stenosis" due to a disc bulge, heopined that "plaintiff does not exhibit objective signs of injury from these objective findings aswell." In short, this expert opined that none of plaintiff's complaints correlate with any objectiveexamination findings and, therefore, it was his opinion that she sustained neither a permanentconsequential limitation of use of a body organ or member or a significant limitation of use of abody function or system (see n, supra). Defendant's submissions were sufficientto make a prima facie showing of entitlement to summary judgment (see Toure v Avis Rent ACar Sys., 98 NY2d 345, 352 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992];Brandt-Miller v McArdle, 21 AD3d1152, 1154 [2005]; John vEngel, 2 AD3d 1027, 1028 [2003]).
Further, plaintiff failed in her shifted burden of raising a triable issue of fact (see Toure vAvis Rent A Car Sys., supra). Even assuming that plaintiff submitted the requisite objectiveevidence of injury, neither of the two physicians who submitted an affirmation on her behalfquantified any alleged loss or limitation or provided a qualitative comparison of her condition tonormal function (see id. at 350-351; Felton v Kelly, 44 AD3d 1217, 1218 [2007]; Pugh v DeSantis, 37 AD3d 1026,1028-1029 [2007]; Brandt-Miller v McArdle, supra; Clements v Lasher, 15 AD3d 712, 713 [2005]; John v Engel,supra). This being the case, summary judgment in defendant's favor was in all respectsappropriate.
Cardona, P.J., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote *: We note that only twocategories of serious injury remain at issue in this case, namely, significant limitation of use of abody function or system and permanent consequential limitation of use of a body organ ormember.