| Larrabee v Bradshaw |
| 2012 NY Slip Op 05050 [96 AD3d 1257] |
| June 21, 2012 |
| Appellate Division, Third Department |
| Joan Larrabee, Appellant, v Curtis M. Bradshaw et al.,Respondents. |
—[*1] Friedman, Hirschen & Miller, L.L.P., Albany (Carolyn B. George of counsel), forrespondents.
Stein, J. Appeal from an order of the Supreme Court (Kramer, J.), entered July 12, 2011 inSchenectady County, which, among other things, granted defendants' motion for summaryjudgment dismissing the complaint.
Plaintiff commenced this action to recover damages for a variety of injuries to her neck, backand arms that she allegedly sustained as a result of a motor vehicle accident in November 2008.Defendants moved for summary judgment dismissing the complaint on the basis that plaintiff didnot suffer a causally related serious injury within the meaning of Insurance Law § 5102 (d)and plaintiff cross-moved for partial summary judgment on the issue of liability. Plaintiff nowappeals from Supreme Court's order granting defendants' motion and dismissing thecomplaint.[FN1]
"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'" (Howard v Espinosa, 70 AD3d1091, 1091-1092 [2010], quoting Haddadnia v Saville, 29 AD3d 1211, 1211 [2006]; see Toure vAvis Rent A Car Sys., 98 NY2d 345, 352 [2002]). Here, plaintiff claims that her injuriesconstituted a permanent loss of use of her cervical spine, permanent consequential limitation ofuse of her neck and cervical spine, significant limitation of use of her neck and cervical spine andan injury or impairment that prevented her from performing substantially all of her usual andcustomary daily activities for at least 90 out of the 180 days following the accident.
In support of their motion, defendants submitted plaintiff's deposition testimony, in whichshe testified that she worked as a waitress from 1997 to 2004 and had previously worked as awaitress, housekeeper and maid. Although plaintiff testified that she was not aware of anyproblems with her neck and shoulders before the accident, she was previously determined to bedisabled due to arthritis in her spine, and had retired from employment and was receiving SocialSecurity benefits.[FN2]She also testified that she developed carpal tunnel syndrome from waitressing, which hadsubsided but became symptomatic again after the accident.
Approximately six days after the collision, plaintiff went to chiropractor Michael Adamec fortreatment for pain in her spine, numbness in her hands and aching in her arms. She continues tohave neck pain when she turns her head quickly and headaches brought on by muscle spasms inher neck. Her treatment with Adamec alleviated some of the pain in her neck, and she treatsherself at home with aspirin and heating pads. She has not received any treatment for her carpaltunnel symptoms since the accident. Plaintiff further testified regarding her daily activities priorto the accident and claimed that she "[cannot] do anything for [her]self at all" and has haddifficulty sleeping, among other things, since the accident. However, defendants point to theabsence of any objective medical evidence in Adamec's records of plaintiff's treatment to supportplaintiff's claim that she was medically curtailed from engaging in her usual and customaryactivities for 90 out of 180 days following the accident.
Defendants also submitted an independent medical evaluation report prepared by ShashiPatel, an orthopedic surgeon. Patel examined plaintiff in April 2010 and reviewed, among otherthings, plaintiff's emergency room record, X rays taken of her cervical spine on January 22, 2009and the report relating thereto, plaintiff's bill of particulars, her response to defendants' discoverydemands and her deposition testimony. Based on the foregoing, Patel diagnosed plaintiff withresolved cervical strain and right shoulder sprain. He further opined that plaintiff has mildlyrestricted range of motion of her spine that is not unusual for a person of her age, as well as someminimal restriction of range of motion of her shoulders, which should not interfere with her dailyactivities. Patel attributed the numbness in plaintiff's hands to the carpal tunnel syndrome.
We agree with Supreme Court's determination that the foregoing evidence was sufficient todemonstrate defendants' prima facie entitlement to judgment dismissing plaintiff's complaintbased upon the lack of a causally related serious injury (see Toure v Avis Rent A CarSys., 98 NY2d at 351-352; MacMillan v Cleveland, 82 AD3d 1388, 1388 [2011]; Parks v [*2]Miclette, 41 AD3d 1107, 1108-1109 [2007]) by showingthat plaintiff's injuries were too "mild, minor or slight" to rise to the level of serious injury (Pugh v DeSantis, 37 AD3d 1026,1029 [2007], quoting Palmer vMoulton, 16 AD3d 933, 935 [2005] [internal quotation marks and citations omitted];see Toure v Avis Rent A Car Sys., 98 NY2d at 350-351), were not permanent and/orwere not causally related to the accident. In addition, we agree with defendants' contention thatplaintiff's medical records are bereft of any indication that the alleged limitations on plaintiff'sactivities were medically indicated for 90 out of 180 days immediately following theaccident.[FN3]Thus, the burden shifted to plaintiff to " 'set forth competent medical evidence based uponobjective medical findings and tests to support [the] claim of serious injury and to connect thecondition to the accident' " (Tracy vTracy, 69 AD3d 1218, 1219 [2010], quoting Blanchard v Wilcox, 283 AD2d821, 822 [2001]; accord Clark vBasco, 83 AD3d 1136, 1138 [2011]; MacMillan v Cleveland, 82 AD3d at 1388).
In our view, plaintiff failed to meet this burden. In opposition to defendants' motion, plaintiffsubmitted her own affidavit, in which she averred that, prior to the collision, she had no problemswith her neck, arms or back and that her carpal tunnel syndrome and arthritis were bothasymptomatic. She also reaffirmed that she was unable to perform her customary daily tasks. Inaddition, plaintiff submitted an affidavit from Adamec setting forth, among other things,objective findings of limited range of motion based upon his initial examination of plaintiff inNovember 2008.[FN4]Adamec diagnosed plaintiff with cervical radiculopathy and cervical and thoracic strain/sprainand opined that plaintiff's cervical pain was causally related to the motor vehicle accident.Adamec also opined that plaintiff's carpal tunnel syndrome was aggravated by the accident andthat plaintiff's use of her arms and hands has been significantly limited.
This evidence is insufficient to raise a question of fact as to plaintiff's claims under thepermanent consequential limitation or significant limitation of use categories because no testresults or other objective medical evidence was provided beyond October 2009. Thus, there wasa complete absence of "objective, quantitative evidence with respect to diminished range ofmotion or a qualitative assessment comparing plaintiff's present limitations to the normal[*3]function, purpose and use of the affected body organ,member, function or system" (Pugh v DeSantis, 37 AD3d at 1029 [internal quotationmarks and citations omitted]). Likewise, Adamec offers no objective evidence to substantiate hisopinion that plaintiff sustained a permanent loss of use and function of her cervical spine andboth arms and hands (compare ByongYol Yi v Canela, 70 AD3d 584, 585 [2010]).
Plaintiff also failed to raise a triable issue of fact as to whether she suffered a serious injuryunder the 90/180-day category. Even assuming that plaintiff's self-serving testimony and affidavitsufficiently allege that she was unable to perform substantially all of her regular activities for therequired period of time, such conclusion is not supported by Adamec's records (see Howard vEspinosa, 70 AD3d at 1094). Nor is Adamec's conclusory affidavit, which merely parrots thestatutory language, sufficient to raise a triable issue of fact (see generally Oberly v BangsAmbulance, 271 AD2d 135, 139 [2000], affd 96 NY2d 295 [2001]).
We have examined plaintiff's remaining contentions and find them to be without merit.
Peters, P.J., Mercure, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: As noted by Supreme Court, thisdetermination rendered plaintiff's cross motion moot.
Footnote 2: As noted by Supreme Court,while plaintiff claimed that her disability was only for her lower spine, the decision finding her tobe disabled for purposes of Social Security benefits indicated that she had a history of, amongother things, neck and back pain, as well as pain in her legs, back, arms and hands.
Footnote 3: The only records before us relateto Adamec's treatment of plaintiff during the period from November 12, 2008 through October17, 2009. We note that, while they contain an "[a]bbreviation [k]ey," they are handwritten anddifficult to decipher. The only comment we were able to discern regarding any medicallyindicated restrictions on plaintiff's daily activities was made on the date of Adamec's initialexamination and indicated that such restrictions were for a period of no more than two weeks.Nor were we able to interpret any quantitative measures or qualitative assessments that mightlend further support to plaintiff's serious injury claims.
Footnote 4: Notably, while Adamec'saffidavit provides a fair amount of detail regarding his findings and opinions based upon hisinitial examination of plaintiff, the affidavit merely asks Supreme Court to refer to his records,generally, to support his remaining conclusions, without any detailed discussion or explanation.