| Flottemesch v Contreras |
| 2012 NY Slip Op 07926 [100 AD3d 1227] |
| November 21, 2012 |
| Appellate Division, Third Department |
| Robert D. Flottemesch, Appellant, v Tomas L. Contreras et al.,Respondents. |
—[*1] Adams, Hanson, Rego, Carlin, Hughes, Kaplan & Fishbein, Albany (Paul G. Hanson ofcounsel), for respondents.
Garry, J. Appeals (1) from an order of the Supreme Court (Work, J.), entered October 11,2011 in Ulster County, which, among other things, granted defendants' motion for summaryjudgment dismissing the complaint, and (2) from an order of said court, entered January 20, 2012in Ulster County, which denied plaintiff's motion for reconsideration.
Plaintiff commenced this action to recover damages for injuries he allegedly sustained onAugust 7, 2005, when a vehicle owned by defendant Benito C. Lopez and driven by defendantTomas L. Contreras struck the rear of his car at high speed while plaintiff was stopped on theKingston-Rhinecliff Bridge in Ulster County. Defendants moved for summary judgment seekingdismissal of the complaint on the ground that plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d). Plaintiff opposed and cross-moved, seeking partialsummary judgment on the issue of liability and judgment in his favor on the issue of seriousinjury. Supreme Court granted summary judgment in favor of defendants, dismissed thecomplaint, and dismissed the cross motion as moot. Plaintiff moved to reargue and renew, andSupreme Court denied that motion. Plaintiff appeals from both orders.
Upon their summary judgment motion, defendants bore the burden of demonstrating, throughthe submission of competent medical evidence, that plaintiff did not sustain a serious injurywithin the parameters of Insurance Law § 5102 (d) (see Womack v Wilhelm, 96AD3d [*2]1308, 1309 [2012]; Larrabee v Bradshaw, 96 AD3d 1257, 1258 [2012]). Defendantssupported their application with the affidavit of board-certified orthopedic surgeon BarryKatzman, who performed an examination of plaintiff in July 2006, noted that plaintiff had fullrange of motion of his cervical spine, and reported that plaintiff's strains were fully resolved withno need for further causally-related treatment. Defendants further relied upon the records ofplaintiff's primary physician, who noted that during a November 2005 physical, plaintiff reportedthat his neck was "[a]lmost 100% better." Based upon this evidence, we agree with SupremeCourt that defendants satisfied their initial burden of demonstrating that plaintiff did not suffer asignificant limitation to his neck as a result of the 2005 accident (see Womack vWilhelm, 96 AD3d at 1310; Clark vBasco, 83 AD3d 1136, 1138 [2011]).[FN*]
Defendants having met their burden, plaintiff was required to produce objective medicalevidence supporting his claim of serious injury (see Peterson v Cellery, 93 AD3d 911, 913 [2012]). Such evidencemay consist of an expert's quantification of a loss of range of motion, corroborated by the resultsof an MRI or other objective medical evidence, when the expert draws a correlation between thetwo (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]; MacMillan v Cleveland, 82 AD3d1388, 1389 [2011]; Durham v NewYork E. Travel, 2 AD3d 1113, 1114-1115 [2003]). To that end, plaintiff proffered anaffirmation from neurologist Gerald Kufner, who began treating plaintiff in August 2008. Kufnerdetailed his review of an October 2008 MRI of plaintiff, on which he found broad-basedright-sided intraforaminal disc bulge and moderate to severe degenerative foraminal stenosis, anddescribed decreases in disc space and disc height in areas of plaintiff's cervical spine, as well asnerve root compression. He further compared the results of the October 2008 MRI to that of anMRI performed in October 2007, and found that plaintiff's degenerative changes had worsened.Based upon these findings, as well as his examinations of plaintiff in October 2008, January2009 and July 2010, Kufner opined that plaintiff suffered from cervical spondylosis as the resultof cervical arthritis that was precipitated and aggravated by a whiplash injury suffered by plaintiffin the 2005 motor vehicle accident, and that plaintiff's cervical arthritis had resulted in a 30%loss of function. Thus, Kufner's affirmation included a quantitative assessment of plaintiff's lossof function that was supported by objective medical evidence in the form of the MRIs. Viewed ina light most favorable to plaintiff, the evidence presented was sufficient to raise an issue ofmaterial fact (see Toure v Avis Rent A Car Sys., 98 NY2d at 350-351; Durham vNew York E. Travel, 2 AD3d at 1115).
In light of this determination, we next address plaintiff's cross motion; as defendants haveconceded liability, plaintiff is entitled to partial summary judgment upon his application. Finally,plaintiff's challenge to the denial of his motion for renewal has been rendered academic.
Mercure, J.P., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the order enteredOctober 11, 2011 is modified, on the law, without costs, by reversing so much thereof as granteddefendants' motion for summary judgment dismissing the complaint and dismissed, as moot,plaintiff's cross motion for partial summary judgment on liability; motion denied and crossmotion granted to said extent; and, as so modified, affirmed. Ordered that the appeal from theorder entered January 20, 2012 is dismissed, as academic, without costs.
Footnote *: The complaint allegedadditional injuries and plaintiff initially asserted claims of serious injury pursuant to multiplecategories under Insurance Law § 5102 (d), but, upon this appeal, his claim is limited to aninjury to his neck under the significant limitation category (see Womack v Wilhelm, 96AD3d at 1309 n 1; Peterson vCellery, 93 AD3d 911, 913 n 1 [2012]).