| Womack v Wilhelm |
| 2012 NY Slip Op 05214 [96 AD3d 1308] |
| June 28, 2012 |
| Appellate Division, Third Department |
| Sharon D. Womack, Appellant, v Benjamin C. Wilhelm etal., Respondents. |
—[*1] Thuillez, Ford, Gold, Butler & Young, L.L.P., Albany (Daisy Ford Paglia of counsel), forrespondents.
Stein, J. Appeal from an order of the Supreme Court (Kramer, J.), entered March 25, 2011 inSchenectady County, which granted defendants' motion for summary judgment dismissing thecomplaint.
Plaintiff commenced this action, alleging that, as a result of a motor vehicle accident onOctober 5, 2007, she suffered a serious injury to her cervical, thoracic and lumbar spine under thesignificant limitation of use and 90/180-day categories of Insurance Law § 5102(d).[FN1]In her bill of particulars, plaintiff alleged that her injuries included bulging discs and discprotrusions, as well as numbness and swelling of her hands and sprains of her neck, back and leftwrist. She further alleged that her symptoms worsened after she was involved in a second,unrelated motor vehicle accident in October 2009. Following joinder of issue and discovery,defendants moved [*2]for summary judgment dismissing thecomplaint on the ground that plaintiff did not sustain a serious injury. Supreme Court granteddefendants' motion in its entirety. On plaintiff's appeal, we affirm.
As the proponent of the summary judgment motion, defendants had the threshold burden toestablish, by competent medical evidence, that plaintiff did not suffer a serious injury causallyrelated to the 2007 accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352[2002]; Peterson v Cellery, 93AD3d 911, 912 [2012]). To that end, defendants submitted plaintiff's deposition testimonyand the affirmed report of Joseph Elfenbein, an orthopedic surgeon who reviewed plaintiff'smedical records and performed an independent medical examination of plaintiff in April 2010.Defendants also submitted various unsworn records of plaintiff's treating and consultingphysicians and her emergency room records, all of which are "documents upon whichdefendant[s] may properly rely to make [a] prima facie showing of entitlement to judgment as amatter of law" (Tuna vBabendererde, 32 AD3d 574, 575 [2006]; see McElroy v Sivasubramaniam, 305AD2d 944, 945 [2003]; Seymour v Roe, 301 AD2d 991, 991-992 [2003]).
Defendants' proof established that, six days after the 2007 accident, plaintiff sought medicalcare at an emergency room complaining of pain in her wrist, neck and lower back. An X ray ofplaintiff's wrist revealed no fracture, and she was diagnosed with a neck and back strain and asprained wrist, prescribed Flexeril and Motrin, and released with the instruction that she followup with her doctor. Based upon his review of plaintiff's medical records and his physicalexamination of plaintiff—which indicated a full range of motion of her cervical andlumbar spine—Elfenbein concluded that, while plaintiff may have suffered strains of thecervical and lumbar spine and a sprained wrist, they were resolved and there was no objectivemedical evidence demonstrating that plaintiff's injuries caused a significant limitation of the useof her spine or of any orthopedic disability. Thus, defendants submitted sufficient evidence tosatisfy their initial burden under the significant limitation category (see Peterson vCellery, 93 AD3d at 913; Howard vEspinosa, 70 AD3d 1091, 1092 [2010]; Tuna v Babendererde, 32 AD3d at575-576).
Defendants' submissions also satisfied their initial burden of demonstrating that plaintiff wasnot "prevent[ed] . . . from performing substantially all of the material acts whichconstitute [her] usual and customary daily activities" for at least 90 of the 180 days immediatelyfollowing the 2007 accident (Insurance Law § 5102 [d]; see Crawford-Reese v Woodard, 95AD3d 1418, 1419 [2012]). In her deposition, plaintiff testified that sitting for long periods oftime exacerbated the pain in her lower back, causing numbness and tingling, and that sheexperienced pain and discomfort while engaging in certain activities at work as a home healthaide between February and August 2008. She testified that her injuries limited her daily activitiesfor a couple of months, but did not allege that she was unable to perform her workduties—such as vacuuming, sweeping, cleaning or assisting clients with gettingdressed—at any point in time.
Accordingly, the burden shifted to plaintiff to raise a triable issue of fact as to both thesignificant limitation and 90/180-day categories (see Toure v Avis Rent A Car Sys., 98NY2d at 353; Krivit v Pitula, 79AD3d 1432, 1433 [2010]). To establish a claim under the significant limitation category ofserious injury, "the medical evidence submitted by plaintiff must contain objective, quantitativeevidence with respect to diminished range of motion or a qualitative assessment comparingplaintiff's present limitations to the normal function, purpose and use of the affected body organ,member, function or system" (John vEngel, 2 AD3d 1027, 1029 [2003]; see Toure v Avis Rent A Car Sys., 98 NY2dat 353; Peterson v Cellery, 93 AD3d at 913).[*3]
Here, plaintiff failed to submit an affidavit of a medicalexpert, instead relying on, among other things, her own affidavit, results from a December 2008MRI and an unsworn report by her treating physician, Alan Bloomberg, from January2009.[FN2]Cumulatively, plaintiff's submissions documented mild spinal narrowing and "[m]ild discdegenerative change" in her cervical spine, including bulging discs, as well as a diminished rangeof motion in her cervical spine. Absent from the documents relied upon by plaintiff was anycompetent medical evidence based on objective medical tests that causally related plaintiff'salleged limitations to the October 2007 accident (see John v Engel, 2 AD3d at 1029).Furthermore, while the reports on which plaintiff relied document a diminished range of motion,they "provided no qualitative or quantitative assessment of this limitation [to] support aconclusion that it was . . . significant" (Felton v Kelly, 44 AD3d 1217, 1219 [2007]; see Howard vEspinosa, 70 AD3d at 1093), as opposed to mild, minor or slight (see Pugh v DeSantis, 37 AD3d1026, 1029 [2007]). In addition, the unsworn report of a June 2010 reevaluation byBloomberg proffered by plaintiff is of no probative value, as it was not submitted or relied uponin support of defendants' motion (see Caulkins v Vicinanzo, 71 AD3d at 1226). In anyevent, such report does not raise a material issue of fact with respect to plaintiff's claim of seriousinjury as it relates to the 2007 accident insofar as it only reflects data subsequent to the 2009accident which, by plaintiff's own testimony, exacerbated her alleged symptoms.
With respect to her claim under the 90/180-day category, plaintiff failed to submit any"objective evidence linking the alleged curtailment of her activities following the accident to aninjury sustained in the accident" (Clarkv Basco, 83 AD3d 1136, 1139-1140 [2011]). Notably, none of plaintiff's medicalrecords from within the initial 180-day period following the accident referenced any limitationson her usual daily activities (see Henry vSorge, 90 AD3d 1355, 1357 [2011]; Dongelewic v Marcus, 6 AD3d 943, 945 [2004]). Thus, evenviewing the evidence in the light most favorable to plaintiff, she failed to raise a triable issue offact concerning whether she sustained a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the 2007 accident, and Supreme Court properly granteddefendants' motion for summary judgment dismissing the complaint (see Mahar v Bartnick, 91 AD3d1163, 1165-1166 [2012]).
Mercure, J.P., Rose, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Although plaintiff also alleged aserious injury under the permanent loss and permanent consequential limitation of use categories,she has not addressed these categories in her appellate brief. Accordingly, we deem such claimsto be abandoned (see Sferra vMcGregor, 69 AD3d 1200, 1202 n [2010]; Brandt-Miller v McArdle, 21 AD3d 1152, 1153 n 2 [2005]).
Footnote 2: While, ordinarily, uncertifiedmedical records and unsworn reports " 'are of no probative value' in opposing a summaryjudgment motion," because defendants offered plaintiff's uncertified medical records in supportof their motion for summary judgment, and to the extent that Elfenbein relied on such records inhis affirmed report, plaintiff is also entitled to rely on them (Caulkins v Vicinanzo, 71 AD3d 1224, 1226 [2010], quotingParmisani v Grasso, 218 AD2d 870, 872 [1995]; see Pietrocola v Battibulli, 238AD2d 864, 866 n [1997]).