| Ostroll v Nargizian |
| 2012 NY Slip Op 05778 [97 AD3d 1076] |
| July 26, 2012 |
| Appellate Division, Third Department |
| Pamela Ostroll, Appellant, v Raymond A. Nargizian, Respondent,et al., Defendant. |
—[*1] Eustace & Marquez, White Plains (Patricia A. Mooney of counsel), for respondent.
Malone Jr., J. Appeal from that part of an order of the Supreme Court (Meddaugh, J.),entered April 18, 2011 in Sullivan County, which granted defendant Raymond A. Nargizian'smotion for summary judgment dismissing the complaint against him.
Plaintiff commenced this action alleging that, as a result of a motor vehicle accident, shesustained serious injuries as provided by Insurance Law § 5102 (d) under the permanentconsequential and significant limitation of use categories. Specifically, plaintiff alleged that shesustained serious injuries to her neck, shoulder, spine and upper arm. Following discovery,defendant Raymond A. Nargizian (hereinafter defendant), the owner and operator of the vehiclein which plaintiff was a passenger at the time of the accident, successfully moved for summaryjudgment dismissing the complaint against him. Plaintiff appeals.[FN*][*2]
Defendant satisfied his initial burden as the proponent ofsummary judgment dismissing the complaint against him by providing competent medicalevidence that the injuries complained of by plaintiff were not caused by the subject accident(see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Howard v Espinosa, 70 AD3d1091, 1092 [2010]). Specifically, defendant submitted plaintiff's medical records revealing asignificant history of chronic neck and back pain attributed to the motor vehicle accident thatoccurred in 1999. Defendant also submitted the medical reports of a neurosurgeon and aphysician, both of whom examined plaintiff prior to the subject accident, as well as the report ofa physician who conducted an independent medical examination of plaintiff subsequent to thesubject accident. These reports all established that plaintiff's injuries preexisted the subjectaccident and were not causally related (see Howard v Espinosa, 70 AD3d at 1092-1093;Felton v Kelly, 44 AD3d 1217,1219 [2007]).
The burden thus shifted to plaintiff to proffer medical evidence that " 'contain[ed] objective,quantitative evidence with respect to diminished range of motion or a qualitative assessmentcomparing [her] present limitations to the normal function, purpose and use of the affected bodyorgan, member, function or system' " (Dean v Brown, 67 AD3d 1097, 1098 [2009], quoting John v Engel, 2 AD3d 1027, 1029[2003]; accord Peterson v Cellery,93 AD3d 911, 913 [2012]). In addition, in light of defendant's evidence of preexistinginjuries, plaintiff was required to provide " 'evidence addressing defendant's claimed lack ofcausation' " (Wolff v Schweitzer, 56AD3d 859, 861 [2008], quoting Pommells v Perez, 4 NY3d 566, 580 [2005]). In that regard,plaintiff submitted the affidavit of her chiropractor, who began treating her following the 1999motor vehicle accident. Significantly, however, while the chiropractor generally avers thatplaintiff's alleged injuries are the result of the subject accident, he does not allege that he everperformed any objective medical tests of plaintiff's range of motion or other diagnostic tests, andhis affidavit is devoid of evidence distinguishing plaintiff's current limitations from those thatpredated the subject accident (seeAnderson v Capital Dist. Transp. Auth., 74 AD3d 1616, 1617 [2010], lv denied15 NY3d 709 [2010]; Howard v Espinosa, 70 AD3d at 1093-1094). Inasmuch as thechiropractor's report did not establish that an issue of fact existed regarding causation, SupremeCourt properly granted defendant's motion for summary judgment dismissing the complaintagainst him (see Franchini vPalmieri, 1 NY3d 536, 537 [2003]; Foley v Cunzio, 74 AD3d 1603, 1604-1605 [2010]).
To the extent not specifically addressed, plaintiff's remaining contentions have beenconsidered and found to be without merit.
Rose, J.P., Spain, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: Defendant Ghouse J. Farouquijoined defendant's motion for summary judgment and Supreme Court ultimately dismissed thecomplaint against him as well. That part of the court's order is not at issue on this appeal.