| Cole v Roberts-Bonville |
| 2012 NY Slip Op 07174 [99 AD3d 1145] |
| October 25, 2012 |
| Appellate Division, Third Department |
| Thomas Cole et al., Appellants, v Amy Roberts-Bonville et al.,Respondents. |
—[*1] Goldberg Segalla, LLP, Albany (Mark P. Donohue of counsel), for respondents.
Stein, J. Appeal from an order of the Supreme Court (Hummel, J.), entered May 25, 2011 inRensselaer County, which granted defendants' motion for summary judgment dismissing thecomplaint.
Plaintiff Thomas Cole and his wife, derivatively, commenced this action to recover damagesfor injuries allegedly sustained when Cole's car was struck by a car being operated by defendantAmy Roberts-Bonville in October 2004. Cole alleges that he suffered a serious injury as definedby Insurance Law § 5102 (d) in that he sustained a permanent loss of use, a permanentconsequential limitation of use and a significant limitation of the use of his right shoulder, leftleg, right knee, cervical spine and lumbar spine. Cole also claims that he was prohibited fromperforming substantially all of his customary daily activities for at least 90 out of the 180 daysimmediately following the accident. Defendants moved for summary judgment dismissing thecomplaint after the completion of discovery, arguing, among other things, that Cole's injuries arethe result of a history of degenerative arthritis and degenerative disc disease which predate theaccident. Plaintiffs now appeal from Supreme Court's order granting defendants' motion anddismissing the complaint.
We affirm. As the proponents of the motion for summary judgment, defendants bore theinitial burden of establishing that Cole did not suffer a serious injury as a result of the accident(see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Peterson vCellery, 93 [*2]AD3d 911, 911 [2012]). To that end,defendants submitted, among other things, Cole's medical records, the affidavit of LouisBenton—a licensed orthopedist—and the deposition testimony of Cole and his wife.Cole's medical records contain a diagnosis of "osteoarthritis to his right hip over the past numberof years," degenerative joint disease in his right shoulder and spondylosis and degenerativedisease to his cervical spine. The records also reflect a history of lower back problems and"minimal foraminal narrowing at C5-6 and C6-7 [and] disk bulging at C7-T1."[FN*]
Based upon his independent medical examination of Cole and review of Cole's medicalrecords, Benton concluded that Cole had preexisting problems regarding his lumbar spine and hisright knee and normal range of motion of his spine, right shoulder and right hip. Noting theabsence of any complaint with regard to his hip when treated at the emergency room followingthe accident or at any time within two years thereof, Benton concluded that Cole's hip pain wassecondary to age related degenerative arthritis and was not causally related to the accident.Benton further noted the lack of any indication of a fracture of Cole's cervical spine or rightshoulder and similarly concluded that his neck and shoulder problems were the result ofpreexisting age related degenerative arthritis and degenerative disc disease, which were onlymildly aggravated by the accident.
With respect to Cole's claim of serious injury under the 90/180-day category, defendantspoint to the testimony of Cole—who was retired at the time of the accident—and hiswife that, after the accident, he continued to perform substantially all of his usual daily activities,albeit with some pain, during the relevant time period. Moreover, none of Cole's medical recordsfrom within the initial 180-day period following the accident referenced any limitations on hisusual daily activities (see Insurance Law § 5102 [d]; Crawford-Reese v Woodard, 95 AD3d1418, 1420 [2012]; Henry vSorge, 90 AD3d 1355, 1357 [2011]).
The foregoing was sufficient to demonstrate defendants' entitlement to judgment dismissingthe complaint and, accordingly, shifted the burden to plaintiffs to raise a triable issue of fact(see Peterson v Cellery, 93 AD3d at 913; Howard v Espinosa, 70 AD3d 1091, 1092-1093 [2010]). Thus,plaintiffs were required to offer appropriate evidence demonstrating a serious injury and, givendefendants' " 'persuasive evidence that [Cole's] alleged pain and injuries were related to apreexisting condition, plaintiff[s] had the [additional] burden to come forward with evidenceaddressing defendant[s'] claimed lack of causation' " (Wolff v Schweitzer, 56 AD3d 859, 861 [2008], quoting Pommells v Perez, 4 NY3d 566,580 [2005]; see Coston v McGray,49 AD3d 934, 935 [2008]). We agree with Supreme Court's determination that plaintiffsfailed to do so here.
In opposition to defendants' motion, plaintiffs submitted certain medical records, togetherwith the reports of several of Cole's treating physicians. Initially, we note that none of themedical records or reports contain any indication that Cole has suffered a serious injury under thecategory of a total, permanent loss of use of any body organ, member, function or system (see[*3]Oberly v Bangs Ambulance, 96 NY2d 295, 297 [2001]).In order to raise a question of fact regarding the existence of a serious injury under the categoriesof a permanent consequential or significant limitation of use, plaintiffs were required to "presentmedical evidence that contain[s] objective, quantitative evidence with respect to diminishedrange of motion or a qualitative assessment comparing [Cole's] present limitations to the normalfunction, purpose and use of the affected body organ, member, function or system" (Boone v Milano, 96 AD3d 1195,1197 [2012] [internal quotation marks and citations omitted]; see Toure v Avis Rent A CarSys., 98 NY2d at 353; Peterson v Cellery, 93 AD3d at 913). In this case, evenassuming that plaintiffs were entitled to rely on the unsworn, unverified narrative reports ofCole's physicians, neither such reports nor the medical records are sufficient to warrant denial ofdefendants' motion for summary judgment.
Specifically, none of the physician's reports addressed the fact that Cole's medical recordsreflect that his arthritis and current limitations predated the accident. Moreover, the conclusoryopinions contained in the report of physician Charles Buttaci with regard to Cole's allegedlimited range of motion of his cervical spine were unsupported by any examinations, tests ormedical records. Similarly, the report of Frederick Fletcher, who ultimately performed hipsurgery on Cole, fails to distinguish Cole's current limitations from his preaccident condition orto explain the more than two-year delay between the accident and the onset of complaintsregarding Cole's hip, and his conclusion that Cole's hip problem was related to the accident ispurely speculative (see Gaddy v Eyler, 79 NY2d 955, 958 [1992]; Anderson v Capital Dist. Transp.Auth., 74 AD3d 1616, 1617 [2010], lv denied 15 NY3d 709 [2010]). The reportof physician Joseph Elfenbein is equally deficient, as he did not examine any of Cole's medicalrecords from before the accident and his conclusions were based on Cole's misrepresentation thathe had no prior history of accidents or injuries.
With respect to the claim under the 90/180-day category, plaintiffs failed to submit anyevidence whatsoever of any curtailment of Cole's activities following the accident (seeCrawford-Reese v Woodard, 95 AD3d at 1420; Mahar v Bartnick, 91 AD3d 1163, 1165-1166 [2012]). Thus, evenviewing the evidence in the light most favorable to plaintiffs, they failed to raise a triable issue offact concerning whether Cole sustained a causally related serious injury within the meaning ofInsurance Law § 5102 (d), and Supreme Court properly granted defendants' motion forsummary judgment dismissing the complaint.
Peters, P.J., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: Although plaintiffs' bill ofparticulars asserts injuries to his left leg, lumbar spine and right knee, his medical records do notrefer to any treatment with respect to those body parts after the accident, and he was admittedlyon disability retirement at the time of the accident due to the preexisting injuries to his knee andlower back.