| Charley v Goss |
| 2008 NY Slip Op 06689 [54 AD3d 569] |
| September 2, 2008 |
| Appellate Division, First Department |
| Carolyn Charley, Appellant, v Margaret E. Goss et al.,Respondents, et al., Defendant. |
—[*1] Law Offices of Brian J. McGovern, LLC, New York (Alison M. K. Lee of counsel), forrespondents.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered May 9, 2007,which granted defendants Goss and Conroy's motion for summary judgment dismissing thecomplaint as against them, affirmed, without costs.
This is a personal injury action which arises out of a motor vehicle accident that occurred onFebruary 14, 2004 at the intersection of West 31st Street and Dyer Avenue in Manhattan.Plaintiff asserts that she was the front-seat passenger in a vehicle owned and operated bydefendant Nelson when it came into contact with a vehicle owned by defendant Conroy andoperated by defendant Goss.[FN*]Plaintiff declined medical treatment at the scene and first sought medical attention, according toher deposition testimony, "a few days after" the incident.
Plaintiff subsequently commenced this action in February 2005, alleging that she hadsustained a serious injury as defined in Insurance Law § 5102 (d). Defendants Goss andConroy, after issue was joined and discovery conducted, moved for summary judgmentdismissing the complaint as against them on the ground that plaintiff failed to meet the seriousinjury threshold. The motion court, in a decision and order entered on May 9, 2007, granted themotion and dismissed the complaint against the moving defendants, holding, inter alia, that "theplaintiff has failed to demonstrate an inability to perform substantially all of the material acts thatconstituted her usual and customary duties for 90 of the 180 days following the accident [and]offers contradictory reasons for her cessation of or gap in treatment." Plaintiff testified that shestopped treatment because she could no longer afford it, as emphasized by the dissent, butsubsequently seems to have reported to Dr. Post, who submitted a medical report in opposition todefendants' motion, that there had been some improvement in her condition at the time treatmentwas [*2]discontinued, although some discomfort persisted.Plaintiff appeals, and we now affirm.
The Court of Appeals has often stated that the " 'legislative intent underlying the No-FaultLaw was to weed out frivolous claims and limit recovery to significant injuries' " (Toure vAvis Rent A Car Sys., 98 NY2d 345, 350 [2002], quoting Dufel v Green, 84 NY2d795, 798 [1995]). In that vein, the Court of Appeals has rejected the contention that the questionof whether a plaintiff has sustained a serious injury is always a question of fact for the jury and,instead, has held that the issue of whether a claimed injury falls within the statutory definition ofa "serious injury" is a question of law for the courts in the first instance, which may properly bedecided on a motion for summary judgment (Licari v Elliott, 57 NY2d 230, 237 [1982];Rubensccastro v Alfaro, 29 AD3d436, 437 [2006]).
Once the proponent of a motion for summary judgment has set forth a prima facie case thatthe injury is not serious, the burden then shifts to plaintiff to demonstrate, by the submission ofobjective proof of the nature and degree of the injury, that he/she did sustain such an injury, orthat there are questions of fact as to whether the purported injury was "serious" (Toure,98 NY2d at 350; Cortez v ManhattanBible Church, 14 AD3d 466 [2005]). Moreover, "even where there is objective medicalproof, when additional contributory factors interrupt the chain of causation between the accidentand claimed injury—such as a gap in treatment, an intervening medical problemor a preexisting condition—summary dismissal of the complaint may beappropriate" (Pommells v Perez, 4NY3d 566, 572 [2005] [emphasis added]; see Perez v Rodriguez, 25 AD3d 506, 508 [2006]).
Initially, we find that defendants shouldered their burden of establishing, prima facie, thatplaintiff did not sustain a serious injury within the statutory definition. Defendants submitted theaffirmed report of Dr. Charles Totero, a board certified orthopedic surgeon, who conducted anindependent medical examination of plaintiff, during which he viewed various ranges of motionand performed a number of objective tests. Dr. Totero also viewed plaintiff's prior medicalrecords, including MRI films, and concluded, among other things, that "[m]otor and sensory aregrossly intact . . . [t]here is negative Hawkins, negative drop arm, and negativeimpingement sign. Negative Neer sign. Motor and sensory to the upper extremities are intact."Dr. Totero further opined that:
"MRIs, of the cervical and lumbar spines documented minimal degenerative changeswith bulging discs only. No herniations or nerve root impingement was documented.Electrodiagnostic studies of the upper and lower extremities showed no evidence of lumbar orcervical radiculopathy. An MRI of the right shoulder documented pre-existing hypertrophicchanges of the AC joint with a tendonitis present.
"The above orthopedic physical examination documents no objective orthopedic findings atthis time. The claimant is currently working in her prior capacity. She is undergoing no activetreatment at this time.
"It is my opinion, based on the objective evidence in this case, that no disability exists at thistime as it pertains to the incident of 2/14/04 and the above diagnoses. She requires no furtherdiagnostic testing and/or treatment, and may carry on normal work and daily activities, withoutrestrictions." (Emphasis added.)[*3]
Defendants also rely on plaintiff's deposition testimony,in which she claims to have missed only two weeks of work (in contrast to her verified bill ofparticulars, which states she returned to work after only six days), and that she stopped allmedical treatment after approximately four months.
Plaintiff, in response to defendants' motion, submitted the affirmed medical report of Dr.Paul Post, who had one "orthopedic consultation" with plaintiff on December 11, 2006, almostthree years after the accident. Initially, we find a review of Dr. Post's report to be revealing in thatDr. Post, unlike Dr. Totero, reviewed only the narrative reports of plaintiff's MRI studies, and notthe films themselves. Moreover, whereas Dr. Totero was provided with numerous medicalrecords—including ultrasound and EKG reports, doctors' files and summaries and medicalrecords from Valerie Conner Acupuncture—which he incorporated into his conclusions,Dr. Post was apparently not given the benefit of that background information.
More importantly, Dr. Post's report addresses plaintiff's subjective complaints of recurringdiscomfort, tenderness and pain, but fails to list any objective orthopedic tests performed, andneglects to adequately, or in some cases, even peripherally explain plaintiff's cessation oftreatment, or the preexisting degenerative changes to plaintiff's cervical and lumbar spine andright shoulder delineated in Dr. Totero's report. Dr. Post also fails to list any activity plaintiff wasspecifically prevented from performing which, in view of the fact that she returned to workapproximately one week after the accident, demonstrates that she also had failed to satisfy the90/180 limitation set forth in Insurance Law § 5102 (d). Concur—Friedman,Nardelli and Buckley, JJ.
Tom, J.P., and Renwick, J., dissent in a memorandum by Renwick, J., as follows: I disagreewith the majority's conclusion that dismissal was warranted because plaintiff allegedly failed tomeet her burden of raising triable issues of fact on the threshold issue of serious injury. Plaintiffalleged in her bill of particulars that she suffered a "permanent consequential limitation of a bodyorgan or member" and "significant limitation of use of a body function." (Insurance Law §5102 [d].) In this case the burden never shifted to plaintiff. A proper analysis of defendants' proofreveals that defendants failed to meet the initial burden for entitlement to summary judgment.Accordingly, I respectfully dissent.
On a motion for summary judgment dismissing the complaint, the defendant bears the initialburden to demonstrate that the plaintiff did not sustain serious injury (see Pommells v Perez, 4 NY3d566 [2005]; Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956 [1992]). If the defendant meets this burden by showing that theplaintiff did not suffer "permanent loss," a "consequential" or "significant" limitation underInsurance Law § 5102 (d), the plaintiff can provide a medical expert's designation of anumeric percentage of a loss of range of motion or an expert's qualitative assessment of theplaintiff's condition to raise a triable issue of fact as to whether the plaintiff sustained a seriousinjury (see Perez v Rodriguez, 25AD3d 506, 507-508 [2006]). When either party fails to do so, the court is deprived of anindispensable tool for determinating whether a party met its respective burden on the legalquestion of whether a claim of serious injury is "significant" or "consequential" (Toure,98 NY2d at 353).[*4]
"[W]hether a limitation of use or function is 'significant'or 'consequential' (i.e., important . . . ) relates to medical significance and involves acomparative determination of the degree or qualitative nature of an injury based on the normalfunction, purpose and use of the body part." (Toure, 98 NY2d at 353, quoting Dufel vGreen, 84 NY2d 795, 798 [1995].) As the Court of Appeals explained: "In order to prove theextent or degree of physical limitation, an expert's designation of a numeric percentage of aplaintiff's loss of range of motion can be used to substantiate a claim of serious injury. Anexpert's qualitative assessment of a plaintiff's condition also may suffice, provided thatthe evaluation has an objective basis and compares the plaintiff's limitations to the normalfunction, purpose and use of the affected body organ, member, function or system. Whensupported by objective evidence, an expert's qualitative assessment of the seriousness of aplaintiff's injuries can be tested during cross-examination, challenged by another expert andweighed by the trier of fact. By contrast, an expert's opinion unsupported by an objective basismay be wholly speculative, thereby frustrating the legislative intent of the No-Fault Law toeliminate statutorily-insignificant injuries or frivolous claims" (Toure, 98 NY2d at350-351 [citations omitted]).
A defendant fails to meet his or her initial burden when he or she relies upon an examiningphysician's report which identifies limitations or restrictions (or lack thereof) in a part of the bodywhere the plaintiff claims to have sustained a consequential or significant injury, but which doesnot sufficiently quantify or qualify the resulting limitations so as to establish that they arepermanent or significant. For instance, courts have found a defendant's medical expert's reportsetting forth numerical ranges of motion of a plaintiff's cervical and/or lumbar spine deficientwhere it fails to compare those findings to the normal range of motion (see e.g. Spektor v Dichy, 34 AD3d557 [2006]). Failure to provide a comparison to the normal range of motion requiresspeculation concerning the significance of the numerical results (cf. Vasquez v Reluzco, 28 AD3d365 [2006]). A medical expert's report describing a decrease of ranges of motion of aplaintiff's cervical and/or lumbar spine as "mild" or "insignificant" are similarly deficient whereno quantitative percentage or qualitative assessment of the degree of restriction of the range ofmotion is provided (see e.g. Yashayev vRodriguez, 28 AD3d 651 [2006]; Kelly v Rehfeld, 26 AD3d 469 [2006]). Absent such comparativequalification, courts cannot assess whether the described decrease of movements of the cervicaland lumbar spine are insignificant in comparison to the normal range of motion expected in ahealthy person of the same age, weight and height (id.; cf. Milazzo v Gesner, 33 AD3d317 [2006]).
In support of their motion for summary judgment, defendants submitted various records ofplaintiff and an affirmed report from Dr. Charles M. Totero, M.D., a board certified orthopedicsurgeon. Dr. Totero conducted a physical examination of plaintiff and reviewed her medicalrecords, including reports from her treating physicians and MRI reports of her shoulder and back.
Dr. Totero's report falls short of meeting the principles set forth in Toure. He notedthe existence of "limited flexion of [plaintiff's] lumbar spine," and "mild to moderate decreasedrange of motion" in plaintiff's cervical spine. However, the doctor failed to set forth numericalvalues for his observations with respect to plaintiff's lumbar and cervical spine or provide thenormal range of motion so as to permit meaningful comparison. Nor did Dr. Totero provide a[*5]qualitative assessment of plaintiff's condition. Absent suchcomparative quantification or qualitative assessment, this Court can only speculate as to thesignificance of the findings. As such, we cannot conclude as a matter of law that such limitationsof the lumbar and cervical spine were "minor, mild or slight" within the meaning of the No-FaultLaw (Yashayev, 28 AD3d at 652, quoting Licari v Elliott, 59 NY2d 230, 236[1982]).
Furthermore, contrary to the majority's contention, Dr. Totero failed to specify what objectivetests were used to reach his conclusions, or the result of such tests, a fatal flaw to defendants'summary judgment motion (see e.g.Offman v Singh, 27 AD3d 284, 285 [2006] [examining neurologist's reports failed toindicate what, if any, objective tests were employed to examine plaintiff]; see also Dzaferovic v Polonia, 36AD3d 652, 653 [2007] [limitation in the range of motion "was not sufficiently quantified orqualified to establish the absence of a significant limitation of motion"]; cf. Taylor v Terrigno, 27 AD3d316 [2006] [while it set forth measurements for loss of range of motions, affirmation ofplaintiff's physician was deficient where it failed to identify the objective tests performed inderiving such results]; Rivera vBenaroti, 29 AD3d 340, 342 [2006] [same]).
Finally, plaintiff explained that she discontinued treatment in or about June 2004 due to lapseof insurance coverage and her inability to pay for further treatment (see Wadford v Gruz, 35 AD3d 258[2006]; Jones v Budhwa, 23 AD3d154 [2005]; Francovig v SenekisCab Corp., 41 AD3d 643 [2007]; Williams v New York City Tr. Auth., 12 AD3d 365 [2004];Black v Robinson, 305 AD2d 438, 439-440 [2003]; cf. Pommells, 4 NY3d at577 [2005]; Brown v Achy, 9 AD3d30, 33-34 [2004]). It is clear from the majority's writing that plaintiff's explanation isconsistent with subsequent statements to Dr. Post.
Since defendants failed to meet their initial burden of establishing a prima facie case thatplaintiff's injuries did not meet the threshold "serious injury," it is unnecessary to considerwhether plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Martinez v Pioneer Transp. Corp.,48 AD3d 306, 307 [2008]).
Accordingly, defendants' motion for summary judgment should have been denied and thecomplaint reinstated. [See 2007 NY Slip Op 31530(U).]
Footnote *: The New York City PoliceDepartment accident report indicates that both drivers claimed the other ran a red light.