| Wolff v Schweitzer |
| 2008 NY Slip Op 08384 [56 AD3d 859] |
| November 6, 2008 |
| Appellate Division, Third Department |
| Robert L. Wolff, Appellant, v Cheryl C. Schweitzer,Respondent. |
—[*1] Burke, Scolamiero, Mortati & Hurd, Albany (Jeffrey E. Hurd of counsel), forrespondent.
Peters, J. Appeal from an order of the Supreme Court (Hard, J.), entered October 10, 2007 inAlbany County, which granted defendant's motion for summary judgment dismissing thecomplaint.
In October 2004, plaintiff's vehicle, while stopped at an intersection, was struck from behindby a vehicle being driven by defendant. Following the accident, plaintiff claimed that he hadsignificant pain and stiffness in his lower back, right hip and lower right extremities, as well asnumbness in his right foot. He later commenced this action claiming serious injury within themeaning of Insurance Law § 5102 (d) as a result of the accident. Specifically, plaintiffasserted a "permanent loss of use" and a "permanent consequential limitation" of his back andlower extremities (Insurance Law § 5102 [d]). Following joinder of issue, defendantmoved for summary judgment dismissing the complaint on the ground that plaintiff did not suffera serious injury. Supreme Court granted defendant's motion, prompting this appeal.
Defendant, who bore the initial burden of establishing that plaintiff did not suffer acausally-related serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352[2002]; Felton v Kelly, 44 AD3d1217, 1218 [2007]), proffered, among other things, the expert affidavit of ChristopherCalder, a neurologist who performed an independent medical examination of plaintiff in January2007. Calder opined that plaintiff's range of motion was either within normal limits or limited bysubjective complaints of pain or stiffness and that there was no objective [*2]evidence that plaintiff suffered a serious or permanent injury to hisback or lower extremities as a result of the accident. In so finding, Calder noted that plaintiffunderwent cervical decompression surgery in 1993 and that a 2001 preaccident MRI revealed acentral disc protrusion and severe spinal stenosis at L4-5. While noting that plaintiff'spostaccident MRIs revealed a herniated disc at L4-5, Calder opined that plaintiff's documentedhistory of "cervical stenosis and cervical myelopathy . . . three years before thesubject accident [is] very similar" to that which has been demonstrated after the subject accidentand, further, that plaintiff's disc herniation could not be related to the accident because the MRIfindings before and after the accident do not indicate any abnormalities that would suggest thatthe disc herniation was acute. Rather, Calder opined that the herniation occurred as a result of thenatural and expected progression of plaintiff's preexisting spinal condition. We find this evidencesufficient to sustain defendant's burden, thus placing the onus upon plaintiff to "set forthcompetent medical evidence based upon objective medical findings and tests to support his claimof serious injury and to connect the condition to the accident" (Blanchard v Wilcox, 283AD2d 821, 822 [2001]; see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Franchiniv Palmieri, 307 AD2d 1056, 1057 [2003], affd 1 NY3d 536 [2003]).
To substantiate a claim under the permanent consequential limitation category,[FN1]" 'the medical evidence submitted by plaintiff must contain objective, quantitative evidence withrespect to diminished range of motion or a qualitative assessment comparing plaintiff'spresent limitations to the normal function, purpose and use of the affected body organ,member, function or system' " (Pugh vDeSantis, 37 AD3d 1026, 1029 [2007], quoting John v Engel, 2 AD3d 1027, 1029 [2003]; see Saleh v Bryant, 49 AD3d 991,992 [2008]). Additionally, "with persuasive evidence that plaintiff's alleged pain and injurieswere related to a preexisting condition, plaintiff had the burden to come forward with evidenceaddressing defendant's claimed lack of causation" (Pommells v Perez, 4 NY3d 566, 580 [2005]; see Coston v McGray, 49 AD3d934, 935 [2008]).
In opposition to defendant's motion, plaintiff relied upon the affirmations of Samuel Dulay,his treating physician, and Kevin Barron, a neurologist who performed an independent medicalexamination of plaintiff. Barron's affirmation, however, merely incorporated a copy of his reportwhich was based upon an examination of plaintiff that occurred almost two years prior todefendant's summary judgment motion (see Chunn v Carman, 8 AD3d 745, 746 [2004]; Lisa vPastor, 262 AD2d 368, 368 [1999]; Covington v Cinnirella, 146 AD2d 565, 566[1989]). Indeed, Barron noted in his affirmation that plaintiff's condition was improving and,moreover, both the medical records following Barron's report and plaintiff's October 2006examination before trial testimony reveal that his complaints with respect to his right hip, kneeand thigh have either improved or have gone away. Further, although Barron opined that plaintiffhad a herniated disc at L4-5 which "appears" to be related to the accident and that his underlyinglumbar stenosis was permanently aggravated thereby, leading to plaintiff's current lower limbpain and diminished mobility, Barron failed to adequately quantify plaintiff's current limitations,contrast those limitations to the normal function, purpose and use of the affected body organ,function or system, or demonstrate that his findings were based on anything other than plaintiff'ssubjective complaints (see Pianka vPereira, 24 AD3d 1084, 1086 [2005]; Gonzalez v Green, 24 [*3]AD3d 939, 940-941 [2005]; Serrano v Canton, 299 AD2d703, 704 [2002]).
We also find that Dulay's affirmation was insufficient to raise a question of fact as to whetherplaintiff suffered a serious injury under this category, as he failed to set forth any objectivemedical basis for his opinion that the accident exacerbated plaintiff's prior spinal condition.Dulay diagnosed plaintiff as suffering from cervical myelopathy with radiculopathy, whichpreexisted the accident but was permanently aggravated thereby, resulting in a permanentconsequential limitation with respect to movement in plaintiff's foot, balance, feeling in his rightleg, and urinary function. Notably, however, Dulay failed to set forth any diagnostic tests or otherobjective medical evidence for his findings in this respect, instead merely noting that plaintiffwas "reporting and exhibiting classic symptoms" of this condition, which inescapably "lead[s] tothe conclusion that these findings were based on plaintiff's subjective complaints" (John vEngel, 2 AD3d at 1029; see Pianka v Pereira, 24 AD3d at 1086). Further, althoughDulay opined that plaintiff's "foot drop" and spastic gait were objective symptoms of plaintiff'scondition, such conditions do not constitute objective evidence of causation inasmuch asplaintiff's medical records clearly reveal that he experienced these problems to some degree priorto the accident, and Dulay failed to provide a sufficient quantitative or qualitative assessment ofplaintiff's limitations prior to the accident by which the claimed aggravation can be measured (see Pinkowski v All-States Sawing &Trenching, 1 AD3d 874, 875 [2003]; Hines v Capital Dist. Transp. Auth., 280AD2d 768, 770 [2001]; see alsoFranchini v Palmieri, 1 NY3d 536, 537 [2003]). Lastly, to the extent that plaintiff claimsthat his urinary problems constitute objective evidence of exacerbation since the record revealsthat these problems occurred only after the subject accident, we need only note that Dulay, ageneral practitioner, merely commented that urinary urgency "is very common with people whohave injuries to the spinal cord and its function." Dulay did not specify any objective medicalevidence to relate plaintiff's alleged urinary problems to the accident or to demonstrate that thiscondition is permanent, nor did he exclude any other possible causes for thiscondition.[FN2]For all of these reasons, plaintiff has failed to raise an issue of fact sufficient to withstandsummary judgment.
Cardona, P.J., Mercure, Carpinello and Kavanagh, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote 1: Plaintiff conceded at oralargument that there was no proof that he suffered a serious injury under the permanent loss of usecategory.
Footnote 2: Indeed, plaintiff admittedly didnot visit a urologist for his alleged urinary problems and ceased taking medication that "worked"in treating this condition.