| Krivit v Pitula |
| 2010 NY Slip Op 09328 [79 AD3d 1432] |
| December 16, 2010 |
| Appellate Division, Third Department |
| Alicia L. Krivit et al., Appellants, v Gregg M. Pitula et al.,Respondents. |
—[*1] Goldberg Segalla, L.L.P., Albany (Latha Raghavan of counsel), for respondents.
Garry, J. Appeal from an order of the Supreme Court (Sackett, J.), entered September 15, 2009in Sullivan County, which granted defendants' motion for summary judgment dismissing the complaint.
Plaintiff Alicia L. Krivit (hereinafter plaintiff) and her husband, derivatively, commenced this actionfollowing a motor vehicle accident in May 2004 in which a truck driven by defendant Gregg M. Pitularear-ended plaintiff's automobile. Plaintiff allegedly sustained neck injuries and posttraumatic stressdisorder (hereinafter PTSD) as a result of the accident. Defendants moved for summary judgmentdismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined byInsurance Law § 5102 (d). Supreme Court granted the motion, and plaintiffs appeal.
It is well established that "a causally-related emotional injury, alone or in combination with aphysical injury, can constitute a serious injury under the Insurance Law" (Bissonette v Compo,307 AD2d 673, 674 [2003]; accordBrandt-Miller v McArdle, 21 AD3d 1152, 1153 [2005]).[FN1]We have previously held that PTSD may constitute such an injury when it is causally [*2]related to a motor vehicle accident and demonstrated by objectivemedical evidence (see Chapman v Capoccia, 283 AD2d 798, 799-800 [2001]). Here, we findthat plaintiffs established the existence of triable issues of fact as to whether the 2004 accident causedplaintiff to suffer PTSD constituting a permanent loss of use of a body function or system or a significantlimitation of use (see Insurance Law § 5102 [d]). Accordingly, we reverse.
Defendants supported their summary judgment motion with the affidavit and report of psychiatristMelvin Steinhardt, who opined, based upon his examination and review of records, that there was noobjective evidence that plaintiff suffered a permanent consequential limitation or significant limitation ofuse. He further opined that plaintiff's psychological condition was not causally related to her accident.Instead, Steinhardt stated that plaintiff's condition was caused by stressors unrelated to her accidentand by her "long and troubled history" before the accident, as manifested by a history ofself-medication, symptoms suggesting depression, and the fact that she took the medication Prozac formany years before the accident and temporarily discontinued it after the accident.
Steinhardt's assessment of plaintiff's preaccident medical history was not based on medical records;apparently, few or no pertinent records exist. Plaintiff, a nurse practitioner with the professionalauthority to diagnose and prescribe, testified that she obtained much of her preaccident care on aninformal, undocumented basis from relatives in the medical field. Thus, medical experts for both sidesbased their understanding of plaintiff's preaccident medical condition on the history she gave herpostaccident medical providers and her deposition testimony. Despite the lack of records, however,admissions regarding preexisting injuries or medical conditions made during a deposition may besufficient to shift the burden "to plaintiffs to 'com[e] forward with evidence indicating a serious injurycausally related to the [subject] accident[ ]' " (Coston v McGray, 49 AD3d 934, 935 [2008], quoting Pommells v Perez, 4 NY3d 566, 579[2005]). Accordingly, defendants met their burden of presenting evidence that plaintiff did not sustain acausally-related serious injury, shifting the burden to plaintiffs to establish the existence of triable issuesof fact (see Villeda v Cassas, 56 AD3d762, 762 [2008]; Taranto vMcCaffrey, 40 AD3d 626, 627 [2007]; compare Brandt-Miller v McArdle, 21AD3d at 1154).
In opposition to defendants' motion, plaintiffs submitted the medical reports and affidavit of PeterPanzarino, plaintiff's treating psychiatrist. Based on his treatment of plaintiff and review of herpostaccident medical records,[FN2]Panzarino opined that she suffers from PTSD, that she did not have the condition before the 2004motor vehicle accident and would not have developed it but for the accident, and that the disorder ispermanent in nature and has significantly limited her ability to function in her professional capacity aswell as in activities of daily living. As described by Panzarino, plaintiff's initial symptoms included panicattacks, agoraphobia, depression, weight loss, anhedonia, anorexia, poor sleep and nightmares, andlater included progressive depression sufficiently severe to require two hospitalizations, one of whichresulted from a suicide attempt, and the inability to work in her profession. According to Panzarino,plaintiff's symptoms are "a classic example" of those typically experienced by persons suffering fromPTSD.[*3]
Supreme Court found Panzarino's opinion insufficient to raisetriable issues of fact as to serious injury as his diagnosis was based solely on plaintiff's subjectivecomplaints. However, defendants' expert neither opined that diagnostic tests are relied upon indiagnosing PTSD nor indicated that any such testing would be useful in doing so. In contrast, Panzarinoaffirmatively stated that tests are not used to diagnose PTSD and that the disorder is identified, instead,"by the professional clinician's assessment of the presentation of the patient's condition." Further, wehave previously held that PTSD may be demonstrated without diagnostic testing for purposes ofInsurance Law § 5102 (d) by symptoms objectively observed by treating physicians andestablished by the testimony of the injured plaintiff and others who observe the plaintiff (seeChapman v Capoccia, 283 AD2d at 799-800). We note the similarity between plaintiff'ssymptoms and those experienced by the plaintiff in Chapman; in that case, we found that theplaintiff's PTSD diagnosis was not based solely on his subjective complaints and that a sufficientmedical foundation was presented to submit the question whether he sustained a serious injury to thejury (see id. at 800).
With regard to causality, Panzarino referenced plaintiff's report that her symptoms beganimmediately after the accident, opined that the accident was representative of the type of traumaticevent that causes PTSD, and further observed that there was no evidence that, before the accident,plaintiff experienced problems with functioning in her home life or her professional capacity as a nursepractitioner comparable to the difficulties she experienced thereafter. As to Steinhardt's opinion thatplaintiff's condition was caused by her preexisting condition and other stressors, Panzarino opined thatplaintiff's history of self-medication, symptoms suggesting depression, and taking Prozac did notindicate that she suffered from PTSD before the accident, while acknowledging that these factors mighthave made her more susceptible to the onset of the condition following a traumatic occurrence.Notably, there is no proof in the record that plaintiff was ever diagnosed with depression or anotherpsychological disorder before the 2004 accident. Plaintiff testified that the Prozac was prescribed inapproximately 1988 by a psychiatrist whom she consulted on a single occasion after she successfullycompleted alcohol abuse treatment, apparently to assist in her rehabilitation. The prescription wasregularly renewed thereafter because, as she stated, it is "a long-term medicine" and she felt well whiletaking it. Other than psychological counseling in 1987 and 1988 related to the alcohol treatment,plaintiff testified that she received no further psychological or psychiatric evaluations or treatment of anykind until after the accident.
Particularly in light of the lack of evidence of any prior existing relevant limitations, the parties'conflicting proof "gives rise to a dispute among experts for the jury to decide" (Haddadnia v Saville, 29 AD3d 1211,1212 [2006]). Viewing the evidence in the light most favorable to plaintiffs (see Toure v Avis RentA Car Sys., 98 NY2d 345, 353 [2002]), issues of fact are posed as to whether plaintiff suffered acausally-related serious injury within the meaning of the Insurance Law (see Pommells v Perez,4 NY3d at 577; Armstrong v Morris, 301 AD2d 931, 933 [2003]).
Rose, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the order is reversed, withcosts, and motion denied.
Footnote 1: Plaintiffs confine their arguments onappeal to plaintiff's alleged psychological injury, conceding that her neck condition did not constitute acausally-related serious injury.
Footnote 2: Plaintiff was initially diagnosed withPTSD in 2005 by another psychiatrist whom she consulted after the accident for symptoms such asanxiety, weight loss, tearfulness, and daily thoughts of suicide. Panzarino took over her care in 2006.