| Howard v Espinosa |
| 2010 NY Slip Op 00759 [70 AD3d 1091] |
| February 4, 2010 |
| Appellate Division, Third Department |
| John V. Howard et al., Appellants, v Ryan C. Espinosa et al.,Respondents. |
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Spain, J. Appeals (1) from an order of the Supreme Court (Krogmann, J.), entered August 8,2008 in Warren County, which granted defendants' motion for summary judgment dismissing thecomplaint, and (2) from an order of said court, entered December 31, 2008, which, uponreargument, adhered to its prior order.
After the automobile he was driving was struck from behind by another vehicle on May 23,2005, plaintiff John V. Howard (hereinafter plaintiff) and his wife, derivatively, commenced thisaction alleging serious injuries as defined in Insurance Law § 5102 (d). Defendantssuccessfully moved for summary judgment, and said order was adhered to upon reargument. Onplaintiffs' appeals, we now affirm.
On a motion for summary judgment dismissing a complaint that alleges a serious injuryunder Insurance Law § 5102 (d), the defendant bears the initial "burden of establishing bycompetent medical evidence that plaintiff did not sustain a serious injury caused by the accident"(Haddadnia v Saville, 29 AD3d1211, 1211 [2006]; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002])."Upon such a showing, the burden then shifts to the plaintiff to submit objective medicalevidence sufficient to raise a triable issue of fact regarding the existence of a serious injury" (Nowak v Breen, 55 AD3d 1186,1187 [2008] [citations omitted]).
Here, Supreme Court properly found that defendants satisfied their initial burden by [*2]submitting proof that plaintiff did not suffer a serious injury as aresult of the 2005 accident. No dispute exists that plaintiff—76 years old at the time of theaccident—has a significant medical history, including prior injuries to his back and neckcaused by a 1952 automobile accident. Plaintiff's preexisting condition was described by his wifein a 2004 application for Veteran's Administration disability benefits, where she stated thatplaintiff was "unable to walk more than 100 feet without pain[, t]hus restricting normal dailyactivities such as gardening, lawn care, and shopping." Immediately following the 2005 accident,plaintiff drove himself to the hospital, where a CT scan was performed that showed "milddegenerative changes" throughout plaintiff's cervical spine. Plaintiff was diagnosed with cervicalstrain, given a prescription for pain medication and discharged. In support of their motion,defendants also provided the report of an independent medical examination obtained in April2008, conducted by physician Bryan Bilfield. Bilfield stated that plaintiff's 2005 postaccidentMRI was essentially the same as an MRI taken in 2002. Although the later MRI showed a newslight disk protrusion at C-7, T-1, Bilfield opined that there was no evidence that the protrusionwas caused by the 2005 motor vehicle accident as opposed to the "natural progression" ofplaintiff's long-standing cervical spondylosis.
This proof was sufficient to sustain defendants' burden of demonstrating a lack of seriousinjury, under any category, attributable to the 2005 accident (see Monk v Dupuis, 287AD2d 187, 189 [2001]; Blanchard v Wilcox, 283 AD2d 821, 822 [2001]). Indeed,plaintiffs do not dispute the fact that defendants met their initial burden on their motion forsummary judgment except with respect to the 90/180-day serious injury category (seeInsurance Law § 5102 [d]). In that regard, plaintiffs argue that because Bilfield did notaddress the extent of plaintiff's functional limitations within 180 days of the accident, defendantsdid not demonstrate a lack of serious injury under that category. To the contrary, a 90/180-dayserious injury requires both objective evidence of a medically determined injury or impairmentcausally related to the accident, as well as proof that such impairment prevented the plaintifffrom performing substantially all of his regular activities for the requisite period of time (seeToure v Avis Rent A Car Sys., 98 NY2d at 357; Talcott v Zurenda, 48 AD3d 989, 990 [2008]). Here, by offeringevidence that plaintiff did not sustain any serious injury as a result of the 2005 accident,defendants met their burden under all categories. Further, through the signed statement ofplaintiff's wife, defendants also offered prima facie proof that the claimed restrictions onplaintiff's activities predated the 2005 accident.
The issue thus distills to whether plaintiffs' submissions in opposition to the motion raise atriable issue of fact as to the existence of any serious injury related to the 2005 accident (see Lee v Laird, 66 AD3d 1302,1303 [2009]). With respect to both the permanent consequential limitation and significantlimitation categories, Supreme Court correctly concluded that plaintiff failed to submit anymedical "quantitative or qualitative assessment to differentiate serious injuries from mild ormoderate ones" (Clements vLasher, 15 AD3d 712, 713 [2005]; see Paton v Weltman, 23 AD3d 895, 897 [2005]; John v Engel, 2 AD3d 1027, 1029[2003]). Plaintiffs submitted the affidavit of a physical therapist, Stephen Bassin, and rely on anindependent medical examination conducted in December 2005 by physician Robert Sellig, bothof whom reported limitations on plaintiff's range of motion. Sellig also diagnosed plaintiff withpreexisting cervical spondylosis, noted the new bulge at C-7, T-1 and opined that plaintiff'scondition was aggravated by the May 2005 accident. Plaintiff also relies on his own descriptionof the physical limitations he experienced following the accident.
As Supreme Court noted, however, the limitations on plaintiff's range of motion as reportedby Sellig, which are comparable to those reported by Bassin immediately following the [*3]accident, are nearly identical to those taken by the Department ofVeterans Affairs approximately eight months prior to the accident in question.[FN*]Further, although Sellig opined that plaintiff's preexisting disease was aggravated by the 2005accident, he does not compare plaintiff's current complaints or limitations with those preexistingthe accident or otherwise specify what injuries were caused by the 2005 accident (see Nowakv Breen, 55 AD3d at 1188). Indeed, Sellig never opines either that the C-7, T-1 bulge wascaused by the accident or whether and how it might relate to plaintiff's physical complaints(see June v Gonet, 298 AD2d 811, 812 [2002]). Evidence of the bulge alone, even ifthere were evidence of causation, would not be sufficient to sustain a claim of serious injury(see John v Engel, 2 AD3d at 1029).
To the extent that plaintiffs continue to rely on Bassin's conclusion that, despite the fact thatplaintiff's loss of range of motion did not worsen immediately following the 2005 accident, it gotprogressively worse over the next two years and that this decline was causally related to the2005 accident's aggravation of his preexisting spinal stenosis and arthritis, it is misplaced. AsSupreme Court properly noted, a physical therapist "cannot by definition diagnose or makeprognos[e]s and is incompetent to determine the permanency or duration of a physicallimitation" (Delaney v Lewis, 256 AD2d 895, 897 [1998]; see Brandt-Miller v McArdle, 21AD3d 1152, 1154-1155 [2005]; Tornatore v Haggerty, 307 AD2d 522, 522-523[2003]). Thus, given the dearth of any competent medical evidence of any significant loss of usethat could be correlated with injuries arising out of the 2005 accident and any comparisonbetween plaintiff's limitations and his normal—albeit diseased—bodily function,Supreme Court correctly granted summary judgment in defendants' favor (see Felton v Kelly, 44 AD3d1217, 1219 [2007]; Paton v Weltman, 23 AD3d at 897; Brandt-Miller vMcArdle, 21 AD3d at 1154-1155).
Likewise, plaintiffs failed to raise a triable issue of fact that plaintiff suffered a serious injuryunder the 90/180-day category. As discussed, plaintiffs' medical submissions are devoid of anyexpert opinion based on objective findings linking the alleged curtailment of plaintiff's activitiesto an exacerbation of his preexisting injuries and are thus insufficient to meet plaintiffs' shiftedburden as to the 90/180-day serious injury category (see Toure v Avis Rent A Car Sys.,98 NY2d at 357; Palmer vMoulton, 16 AD3d 933, 935 [2005]; Creech v Walker, 11 AD3d 856, 856 [2004]). Sellig noted thatplaintiff reported minor limitations to his ability to drive or participate in his volunteer work, butdid not opine as to what extent these limitations stemmed from the 2005 accident, as opposed tohis preexisting condition (see Burford vFabrizio, 8 AD3d 784, 786 [2004]; Dongelewic v Marcus, 6 AD3d 943, 944-945 [2004];Blanchard v Wilcox, 283 AD2d at 823).
Mercure, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the orders areaffirmed, with costs.
Footnote *: Sellig found a range of motionin plaintiff's neck to be 30 degrees right/45 degrees left rotation, and 10 degrees ofhyperextension and 30 degrees of flexion. Bassin noted limitations immediately following theaccident of rotation 30 degrees/30 degrees, 20 degrees extension and 30 degrees flexion.According to Bassin's affidavit, measurements taken by the Department of Veterans Affairs priorto the accident show rotation at 45 degrees/35 degrees and lateral flexion of 20 degrees/20degrees.