| Houston v Hofmann |
| 2010 NY Slip Op 06281 [75 AD3d 1046] |
| July 29, 2010 |
| Appellate Division, Third Department |
| Sandra M. Houston, Appellant, v Tonya L. Hofmann,Respondent. |
—[*1] Murphy & Lambiase, P.C., Goshen (George A. Smith of counsel), for respondent.
Stein, J. Appeal from an order of the Supreme Court (Kramer, J.), entered October 9, 2009 inSchenectady County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Following a motor vehicle accident on January 12, 2007, plaintiff commenced this personalinjury action alleging that she suffered a serious injury to her cervical and thoracic spine withinthe meaning of Insurance Law § 5102 (d), relying on the statutory categories of permanentloss of use, permanent consequential limitation, significant limitation, and inability to performsubstantially all of her customary activities for at least 90 out of the 180 days immediatelyfollowing the accident. Defendant moved for summary judgment dismissing the complaint.Supreme Court granted the motion, finding that plaintiff had failed to demonstrate a triable issueof fact regarding whether she had suffered a statutory serious injury. This appeal by plaintiffensued.
We affirm. "It is well established that to satisfy the statutory serious injury threshold,plaintiff must have sustained an injury that is identifiable by objective proof; plaintiff'ssubjective complaints of pain do not qualify as a serious injury within the meaning of InsuranceLaw § 5102 (d)" (Tuna vBabendererde, 32 AD3d 574, 575 [2006] [citation omitted]; see Toure v Avis RentA Car Sys., 98 NY2d 345, 350 [2002]). As the party moving for summary judgment,defendant had the initial burden of establishing that plaintiff did not suffer a serious injury inorder to [*2]demonstrate her prima facie entitlement to judgmentas a matter of law (see Insurance Law §§ 5102, 5104; Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Here, defendant's motion was supportedby a copy of plaintiff's verified bill of particulars, plaintiff's deposition testimony and twoindependent medical exam reports, which specifically referenced plaintiff's various medicaltreatment reports. This evidence established that, on the day of the accident, plaintiff went to ahospital emergency room, where she was diagnosed with neck strain and a left knee contusion,was prescribed ibuprofen and was instructed to limit her activities for three days and to follow upwith a physician in four to five days. Plaintiff did not seek further medical treatment untilJanuary 30, 2007. She was again diagnosed with neck strain, was prescribed pain medication,heat and massage, and was referred to physical therapy. Plaintiff obtained physical therapy atotal of eight times between February 1, 2007 and March 16, 2007. The discharge summary fromsuch treatment indicates that she had full range of motion in all relevant areas. Plaintiff was alsotreated by David Cerniglia, a chiropractor, from March 12, 2007 until August 22, 2007.
Based upon their examinations of plaintiff on March 3, 2009 and their review of her medicalrecords, defendants' two medical experts opined that plaintiff had a normal range of motion atthe time their respective examinations took place, and that she had nonpermanent causallyrelated resolved strains of the cervical and thoracic spine. There was also no indication in therecords submitted that plaintiff suffered a serious injury in the significant limitation or90/180-day categories. Further, nothing in plaintiff's bill of particulars or deposition testimonyestablishes that she was prevented from performing substantially all of the material acts whichconstitute her usual and customary daily activities. Although the bill of particulars alleges inextremely general terms that she was prevented from performing her daily activities such assleeping, working and attending social activities, this was contradicted by evidence that plaintiffwas not employed at the time of the accident, and no significant restrictions were placed on heractivities, except for the three days immediately following the accident. In addition, plaintiffdenied that she was confined to bed or home at any time following the accident, and herdeposition testimony indicates only that she was unable to garden or lift her grandchildren.
Based upon the foregoing, we agree with Supreme Court's determination that defendantpresented sufficient evidence to shift the burden to plaintiff to raise a question of fact requiring atrial (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324, 326[1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Tuna vBabendererde, 32 AD3d at 575). In order to meet this burden, it was incumbent uponplaintiff to submit "competent medical evidence based upon objective medical findings anddiagnostic tests to support [her] claim of a serious injury" (Trotter v Hart, 285 AD2d772, 773 [2001] [internal quotation marks and citations omitted]; see Howard v Espinosa, 70 AD3d1091, 1092 [2010]; Drexler v Melanson, 301 AD2d 916, 917-918 [2003]).
Here, in opposition to defendant's motion, plaintiff submitted the affidavit of Cerniglia, whoalleged that, during his examination of plaintiff, he observed objective signs of injury in that shesuffered from spasms and from a limited range of motion compared to the normal range in avariety of contexts. However, inasmuch as Cerniglia did not identify what diagnostic tests heused to determine plaintiff's limitations, we are unable to ascertain whether such tests were [*3]objectively based or whether they were based entirely on subjectiveinput.[FN1]Thus, his affidavit is insufficient to raise a triable question of fact with regard to the category ofsignificant limitation of use (see Tuna v Babendererde, 32 AD3d at 577; John v Engel, 2 AD3d 1027,1029-1030 [2003]; Pinkowski vAll-States Sawing & Trenching, 1 AD3d 874, 875 [2003]; Trotter v Hart, 285AD2d at 773; see also Dugan v Sprung, 280 AD2d 736, 737-738 [2001]).
In addition, Cerniglia's conclusory opinion, set forth in an affidavit more than 2½ yearsafter plaintiff's accident, that plaintiff's injuries "were of a type which would have prevented herfrom, and did prevent her from, performing her usual, customary and daily activities. . . for the period of time from the date of the collision until at least August of2007" was insufficient to establish a serious injury under the 90/180-day category, particularly inview of the absence of any medical restrictions placed on her activities (see Tuna vBabendererde, 32 AD3d at 576, 577; Drexler v Melanson, 301 AD2d at 918-919;Trotter v Hart, 285 AD2d at 773). Nor has plaintiff proffered her own sworn affidavitspecifying the manner in which she was prevented from performing substantially all of her usualand customary daily activities for the requisite time period (see Saleh v Bryant, 49 AD3d 991, 993 [2008]; Clements v Lasher, 15 AD3d 712,713-714 [2005]; Davis v Evan, 304 AD2d 1023, 1025-1026 [2003]). Furthermore,Cerniglia's affidavit provides no opinion as to the permanency of plaintiff's injuries. In any event,inasmuch as his affidavit was based upon his examinations conducted at least 18 monthsearlier,[FN2]not on any recent medical examination, and fails to explain the cessation of plaintiff's treatment,it would be deficient as a matter of law to establish permanency (see Trotter v Hart, 285AD2d at 773; see also Tuna v Babendererde, 32 AD3d at 577; John v Engel, 2AD3d at 1028-1029). Thus, Supreme Court properly found that plaintiff failed to demonstrate atriable issue of fact with regard to the existence of a serious injury pursuant to any of thestatutory categories alleged.
Rose, J.P., Lahtinen, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: While Cerniglia does allege thathe noted a "positive O'Donohue's test," and that plaintiff was "positive with regard to cervicalcompression," he fails to describe these tests, explain their significance or relate them in any wayto a limitation of use. Nor do his office notes provide any clarity, as they are indecipherable.
Footnote 2: Cerniglia alleges that he sawplaintiff in January 2008, although there is no evidence that he treated her or performed any testson that date.