| Clark v Basco |
| 2011 NY Slip Op 02757 [83 AD3d 1136] |
| April 7, 2011 |
| Appellate Division, Third Department |
| Donna B. Clark, Appellant, v Kimberly A. Basco,Respondent. |
—[*1]
Peters, J.P. Appeal from an order of the Supreme Court (McDonough, J.), entered March 26,2009 in Albany County, which, among other things, granted defendant's motion for summaryjudgment dismissing the complaint.
In October 2004, while plaintiff was attempting to merge onto a bridge in the City of Albany,her vehicle was struck from behind by a vehicle being driven by defendant. Thereafter, plaintiffcommenced this action, pro se, alleging that she suffered a serious injury within the meaning ofInsurance Law § 5202 (d), relying upon the statutory categories of permanentconsequential limitation, significant limitation, and inability to perform substantially all of hercustomary activities for at least 90 out of the 180 days immediately following the accident. In herbill of particulars, plaintiff claimed that she suffered from, among other things, hip and lumbarinjuries, a traumatic brain injury, major depressive order, posttraumatic stress disorder,postconcussive disorder and loss of vision. Following discovery, defendant successfully movedfor summary judgment dismissing the complaint. Plaintiff now appeals, and we affirm.
As the proponent of the summary judgment motion, defendant had the threshold burden ofestablishing by competent medical evidence that plaintiff did not sustain a serious injury causedby the accident (see Howard vEspinosa, 70 AD3d 1091, 1091-1092 [2010]; Lee v Laird, 66 AD3d 1302, 1303 [2009]). The evidence submittedby defendant established that, following the accident, plaintiff drove herself to a hospitalemergency room with complaints of pain in her [*2]neck, backand buttocks. X rays performed on her thoracic and cervical spine revealed some milddegenerative changes, but no fractures. Plaintiff was diagnosed with a neck and thoracic strain,advised to follow up with her physician and discharged. Approximately one week later, plaintiffvisited her primary care physician, Adele Strominger, who diagnosed her with whiplash and alow back muscle strain/sprain caused by the accident and referred her to physical therapy. Whenplaintiff returned to Strominger the following month complaining of weakness in her legs,Strominger noted that plaintiff's previous pain had essentially resolved itself and authorizedplaintiff to return to work.
Between December 2004 and October 2006, plaintiff presented to Strominger with amultitude of problems. Strominger repeated her previous diagnosis and noted that, while plaintiffhad complained of "multiple somatic symptoms" since the accident, subsequent X rays failed toidentify any significant abnormalities. Strominger's reports also indicated that plaintiff sufferedfrom schizoaffective disorder, which had been diagnosed before the accident. David Hart, aneurologist who evaluated plaintiff based on her complaints of shooting pain down her legs andup along her back, found that plaintiff had "a muscular ligamentous strain injury" from theaccident with no focal neurological findings and no signs of permanent injury. A later MRI takenof plaintiff's brain and lumbar spine in response to her visual complaints, constant head pain andchronic low back pain was normal with no pathology and an MRI taken of her lumbar spine wasessentially negative.
Defendant also proffered a report from orthopedic surgeon Thomas Eagan, who conducted anindependent medical examination of plaintiff in October 2008. Eagan found that, while plaintifflikely sustained some soft tissue injuries from the accident, no structural changes existed thatwould cause chronic pain. He opined that the symptoms she complained of were attributable toher preexisting degenerative disc disease and exaggerated by her underlying mental health issues,particularly her schizoaffective disorder, and that her "bizarre symptomatology . . .was consistent with her chronic psychological condition." Eagan ultimately concluded that therewas no causal relationship between plaintiff's current complaints and the reported injury.
Defendant further submitted the expert affidavit and report of Julie Lynch, a clinicalneuropsychologist. Based upon her review of the records of Jeanne Kostas, a psychologist whodiagnosed plaintiff with posttraumatic stress disorder, cognitive disorder and depressive disorder,Lynch found that Kostas had not conducted any neuropsychological testing needed to supportsuch conclusions and had also failed to review plaintiff's preaccident medical or psychologicalrecords before making her diagnoses and causally relating them to the accident. As such, Lynchopined that Kostas' diagnoses were not based upon any objective testing or findings, but ratherplaintiff's subjective report of her symptoms, and that Kostas' conclusion concerning causalitylacked an adequate foundation (compareBrandt-Miller v McArdle, 21 AD3d 1152, 1154 [2005]).
This evidence was sufficient to shift the burden to plaintiff to present " 'competent medicalevidence based upon objective medical findings and tests to support [her] claim of serious injuryand to connect the condition to the accident' " (Wolff v Schweitzer, 56 AD3d 859, 861 [2008], quotingBlanchard v Wilcox, 283 AD2d 821, 822 [2001]; accord Vargas v Tomorrow Travel & Tour, Inc., 74 AD3d 1626,1627 [2010]; see Nowak v Breen,55 AD3d 1186, 1187 [2008]). To establish a claim under the permanent consequentiallimitation or significant limitation of use categories, " 'the medical evidence submitted byplaintiff must [*3]contain objective, quantitative evidence withrespect to diminished range of motion or a qualitative assessment comparing plaintiff's presentlimitations to the normal function, purpose and use of the affected body organ, member, functionor system' " (Dean v Brown, 67AD3d 1097, 1098 [2009], quoting John v Engel, 2 AD3d 1027, 1029 [2003]; see Hildenbrand v Chin, 52 AD3d1164, 1165 [2008]).
In opposition, plaintiff did not submit an affidavit from any medical expert, instead relyingon her medical records, reports from her treatment providers and her own affidavit.[FN*] Notably, none of the records—other than those from plaintiff's treatment with DeborahCiprioni, a physical therapist—contains qualitative or quantitative assessments of anyphysical limitation, nor do the diagnostic test results show evidence of abnormality. Ciprioni'sreport from October 2004 indicates that plaintiff suffers from muscle spasms in the cervical andlumbrosacral regions, and sets forth quantitative limitations in plaintiff's range of motion.However, Ciprioni neither identifies any objective or diagnostic tests utilized to support herfindings nor causally relates the spasms to the accident (see Parks v Miclette, 41 AD3d 1107, 1110 [2007]; Tuna v Babendererde, 32 AD3d574, 577 [2006]; Burford vFabrizio, 8 AD3d 784, 785 [2004]). Likewise, the medical report of Robert Fox, anoptometrist who diagnosed plaintiff with convergence insufficiency and visual field defect, failsto causally relate these findings to the accident.
With respect to plaintiff's alleged psychological injuries, including posttraumatic stressdisorder and major depressive disorder, her psychological treatment records contain no objectivefindings supporting those diagnoses and fail to set forth any adequate assessment of how thealleged injuries were causally related to the accident (see Palmeri v Zurn, 55 AD3d 1017, 1019 [2008]; Bissonette vCompo, 307 AD2d 673, 674 [2003]; Kristel v Mitchell, 270 AD2d 598, 599 [2000];compare Krivit v Pitula, 79 AD3d1432, 1434-1435 [2010]). Moreover, given Kostas' admitted failure to review plaintiff'spreaccident records and defendant's proof that plaintiff's depression was a preexisting condition,Kostas' opinion that plaintiff's psychological condition is causally related to the accident isspeculative (see Franchini v Palmieri, 307 AD2d 1056, 1058 [2003], affd 1 NY3d536 [2003]). Accordingly, plaintiff's proof fell short of demonstrating that she sustained anyinjury—physical or psychological—constituting a permanent or significantlimitation as a result of the accident.
Finally, with respect to plaintiff's claim under the 90/180-day category of serious injury, themedical proof failed to set forth objective evidence linking the alleged curtailment of heractivities following the accident to an injury sustained in the accident (see Howard vEspinosa, 70 AD3d at 1094; Palmerv Moulton, 16 AD3d 933, 935 [2005]; Creech v Walker, 11 AD3d 856, 856 [2004]; Blanchard vWilcox, 283 AD2d at 824). As plaintiff failed to establish the existence of a genuine issue offact as to whether she sustained a serious injury as a result of this accident, the complaint wasproperly dismissed.[*4]
Spain, Rose, Stein and Egan Jr., JJ., concur. Ordered thatthe order is affirmed, without costs.
Footnote *: Despite plaintiff's suggestion tothe contrary, a pro se litigant " 'acquires no greater right than any other litigant' " and, therefore,her decision to proceed pro se had no effect on her burden to present legally competent evidenceto oppose defendant's summary judgment motion (Duffen v State of New York, 245AD2d 653, 654 [1997], lv denied 91 NY2d 810 [1998], quoting Roundtree vSingh, 143 AD2d 995, 996 [1988]).