| Anderson v Capital Dist. Transp. Auth. |
| 2010 NY Slip Op 05317 [74 AD3d 1616] |
| June 17, 2010 |
| Appellate Division, Third Department |
| Donald Anderson, Appellant, v Capital District TransportationAuthority, Respondent. |
—[*1] Cooper, Erving & Savage, L.L.P., Albany (David C. Rowley of counsel), forrespondent.
Peters, J.P. Appeal from an order of the Supreme Court (Platkin, J.), entered June 5, 2009 inAlbany County, which granted defendant's motion for summary judgment dismissing thecomplaint.
In April 2006, plaintiff, a passenger on a bus owned by defendant, fell and hit his head andleft shoulder when the bus driver abruptly braked. This personal injury action was commencedalleging that plaintiff had sustained a serious injury within the meaning of Insurance Law§ 5102 (d). Specifically, he claimed that he suffered spinal cord compression, extremepain, weakness and numbness in his extremities, massive headaches and injuries to his shoulder,neck, back and legs. Following joinder of issue, Supreme Court granted defendant's motion forsummary judgment dismissing the complaint. Plaintiff appeals, and we affirm.
Defendant made a prima facie showing that plaintiff did not suffer a serious injury as a resultof this accident through the affirmation and sworn report of board certified orthopedic surgeonLouis Nunez. After conducting an independent medical examination of plaintiff and reviewinghis medical records, deposition testimony and certain pleadings, Nunez concluded that, otherthan a strain of the cervical and lumbar spine which have since resolved, no objective medicalevidence existed establishing that plaintiff's injuries were caused by the subject accident. Henoted that plaintiff was involved in five prior accidents between 1994 and 2000 and had adocumented history of extensive preexisting conditions involving, among others, his lumbar[*2]spine and lower back, which required surgical interventionand pain management well before the accident at issue. Nunez found no objective changesfollowing the accident to any of the body parts at issue, that plaintiff's complaints prior to theaccident were nearly identical to those following the accident, and that objective tests performedshortly after the accident revealed no spinal cord compression or other acute trauma resultingfrom the accident.
The burden then shifted to plaintiff to "set forth competent medical evidence based uponobjective medical findings and tests to support his claim of serious injury and to connect thecondition to the accident" (Wolff vSchweitzer, 56 AD3d 859, 861 [2008] [citations omitted]; see Toure v Avis Rent ACar Sys., 98 NY2d 345, 350 [2002]; McNamara v Wood, 19 AD3d 921, 923 [2005]). Furthermore,"with persuasive evidence that plaintiff's alleged pain and injuries were related to a preexistingcondition, plaintiff had the burden to come forward with evidence addressing defendant'sclaimed lack of causation" (Pommells vPerez, 4 NY3d 566, 580 [2005]; see Falkner v Hand, 61 AD3d 1153, 1154 [2009]; Wolff vSchweitzer, 56 AD3d at 861).
In opposition to the motion, plaintiff offered the affirmation and two-paragraph medicalreport of Frank Ferra, his treating physician for the past three years. These sparse submissions,however, provide no objective basis for concluding that plaintiff's injuries were caused by thesubject accident. Although Ferra opined that none of plaintiff's preexisting injuries are the directcause of his current problems, he did not identify any specific injury that was caused by thesubject accident and failed to set forth any diagnostic tests or other objective evidence that wouldestablish an exacerbation of any of plaintiff's prior injuries or support his finding of a causallyrelated back injury.[FN*]Also critically absent from his affirmation is any "objective medical evidence distinguishingplaintiff's preexisting condition[s] from the injuries claimed to have been caused by [this]accident" (Falkner v Hand, 61 AD3d at 1154; see Wolff v Schweitzer, 56 AD3dat 861; McCreesh v Hoehn, 307 AD2d 638, 639 [2003]). Furthermore, Ferra's findingthat plaintiff "rarely" had trouble walking before the subject accident and only now needs the useof a cane is belied by the record. In the absence of objective evidence, Ferra's opinion thatplaintiff's condition is causally related to the subject accident is both speculative and conclusoryand, thus, patently insufficient to raise an issue of fact sufficient to withstand summary judgment(see Pommells v Perez, 4 NY3d at 580; Falkner v Hand, 61 AD3d at 1155;McNamara v Wood, 19 AD3d at 922-923; Franchini v Palmieri, 307 AD2d1056, 1057-1058 [2003], affd 1 NY3d 536 [2003]).
The parties' remaining contentions need not be addressed in light of our determination.
Rose, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: Despite the numerous causallyrelated injuries alleged by plaintiff in his bill of particulars, the only one specifically addressedby Ferra is plaintiff's claimed back injury.