| Raucci v Hester |
| 2014 NY Slip Op 05006 [119 AD3d 1044] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 Darlene Raucci et al., Respondents, v NathanielHester, Appellant. |
Adams, Hanson, Rego, Carlin, Hughes, Kaplan & Fishbein, Albany (Richard J.Fishbein of counsel), for appellant.
Finkelstein & Partners, LLP, Newburgh (James Shuttleworth III of counsel), forrespondents.
Devine, J. Appeal from an order of the Supreme Court (Kramer, J.), entered April 1,2013 in Schenectady County, which denied defendant's motion for summary judgmentdismissing the complaint.
On June 22, 2008, a vehicle driven by defendant rear-ended a vehicle driven byplaintiff Darlene Raucci (hereinafter plaintiff) as it was stopped at a traffic light in theCity of Schenectady, Schenectady County. Plaintiff and her husband, derivatively,commenced this action alleging, among other things, that she sustained serious injuries asdefined in Insurance Law § 5102 (d) as a result of the accident. Specifically,plaintiff alleges that she sustained injuries to her neck, back, cervical spine and right hipunder the permanent loss of use, permanent consequential limitation of use, significantlimitation of use and 90/180-day categories. Following joinder of issue and completionof discovery, defendant moved for summary judgment dismissing the complaint, whichmotion was denied by Supreme Court. This appeal by defendant ensued.
Defendant bore the initial burden of demonstrating, by the proffer of competentmedical evidence, that plaintiff did not sustain serious injuries within the meaning ofInsurance Law § 5102 (d) as a result of the accident (see Cole v Roberts-Bonville,99 AD3d 1145, 1146 [2012]; Haddadnia v Saville, 29 AD3d 1211, 1211 [2006]). Insupport of his motion, defendant properly [*2]relied onplaintiff's medical records and the unverified reports of plaintiff's treating physicians toattempt to demonstrate that plaintiff did not sustain a serious injury (see McElroy vSivasubramaniam, 305 AD2d 944, 945 [2003]; Seymour v Roe, 301 AD2d991, 991 [2003]).
On the date of the accident, plaintiff received medical treatment at a hospital forcomplaints of upper back and shoulder pain. The hospital records indicate that plaintiffwas ambulatory, had a normal range of motion in her extremities and did not exhibit anyabnormal disk or soft tissue condition, although she had tenderness to palpation alongher thoracic spine and shoulders. Approximately two weeks later, plaintiff saw herprimary care physician with complaints of neck and shoulder pain and, in late October2008, plaintiff underwent an examination by orthopedic surgeon James Lawrence, whodetermined that plaintiff had "cervical whiplash and refractory pain" requiring stretchingand isometric strengthening to regain full range of motion. Plaintiff did not seek furthertreatment for more than a year, at which time she continued to complain of debilitatingneck and shoulder pain, and was found to have significant "degenerative changes" in herneck. Plaintiff underwent surgery to her cervical spine in May 2010 and, after saidprocedure, plaintiff was found to have done "exceedingly well." More than a year afterthe surgery, Lawrence opined that plaintiff's pain was "really minimal" and she had a"full range of motion of her cervical spine." An independent medical examination(hereinafter IME) performed on plaintiff in April 2012 demonstrated that, althoughplaintiff's cervical spine range of motion was "restricted in some planes," plaintiff's backinjuries had resolved following surgery and that prior MRIs confirmed that plaintiff'scomplaints of continuing pain were "consistent with chronic degenerative discdisease."
In December 2009, plaintiff began complaining of pain in her right hip and thigh andan X ray revealed "generalized osteoporosis of the right hip and pelvis." A subsequentMRI revealed a degenerative condition of plaintiff's hip, and a cortisone injection andphysical therapy were recommended. Plaintiff underwent surgery to her right hip inSeptember 2010 and, thereafter, was found by the surgeon, Shankar Das, to haverecovered well despite the existence of "permanent arthritic changes in the hip."Likewise, the author of the IME report, orthopedic surgeon Thomas Eagan, concludedthat, within a reasonable degree of medical certainty, although plaintiff would havecontinuing issues with her right hip, they were preexisting and degenerative in nature andhad no causal relation to the vehicle accident. Based on this evidence, we find thatdefendant met his burden on the motion with regard to plaintiffs' permanentconsequential limitation of use and significant limitation of use claims.
Thus, the evidentiary burden shifted to plaintiffs to present " 'objective,quantitative evidence with respect to diminished range of motion or a qualitativeassessment comparing plaintiff's present limitations to the normal function, purpose anduse of the affected body organ, member, function or system' " (Dean v Brown, 67 AD3d1097, 1098 [2009], quoting John v Engel, 2 AD3d 1027, 1029 [2003]; accord Ostroll v Nargizian, 97AD3d 1076, 1077 [2012]). To that end, plaintiffs presented affidavits fromLawrence and Das, both of whom averred that plaintiff experienced a marked reductionin her range of motion in her hip and cervical spine as a result of the accident.Specifically, Lawrence affirmed that, although the surgery had helped to alleviateplaintiff's cervical pain, it "resulted in permanent limitations in the range of motion in hercervical spine . . . because approximately 12% or so of functional motion isdivided among each subaxial element of the lumbosacral spine" and plaintiff would loseapproximately 25% of her flexion and extension and the same approximate amount ofloss in her cervical rotation. Lawrence disputed Eagan's determination that plaintiff'sspinal limitations were solely degenerative in nature, and his sworn statement, inconjunction with plaintiff's medical records, [*3]wassufficient to raise an issue of fact as to plaintiffs' claim of a serious cervical spine injuryunder the permanent consequential limitation of use and significant limitation of usecategories (see Perl vMeher, 18 NY3d 208, 218-219 [2011]; Lipscomb v Cohen, 93 AD3d 1059, 1061 [2012]).
As for the injury to plaintiff's right hip, Das averred that plaintiff had not experiencedany prior pain or limitation with the hip and opined that the continuing deterioration ofplaintiff's hip—demonstrated by MRIs taken over the course of severalmonths—was causally related to the impact of the vehicle collision. Even after acomprehensive hip surgery and extensive postoperative rehabilitation and physicaltherapy, Das found that plaintiff's hip continued to have a "permanent restriction inmotion" that would require ongoing medical treatment, including possible additionalsurgery. To the extent that defendant challenges plaintiff's failure to seek treatment of herhip injury until well over a year after the accident, plaintiff's belief that the pain wasrelated to menopause or another "OB/GYN issue" provides a reasonable explanation forthe delayed treatment (see Lipscomb v Cohen, 93 AD3d at 1061). Overall, thisevidence, viewed in a light most favorable to plaintiffs, suffices to raise a triable issue offact, thereby precluding judgment as a matter of law in favor of defendant on plaintiff'spermanent consequential limitation of use and significant limitation of use claims (see Flottemesch v Contreras,100 AD3d 1227, 1229 [2012]; Colavito v Steyer, 65 AD3d 735, 736 [2009]). Moreover,with respect to plaintiff's significant disfigurement claim, we find that the photographs inthe record are adequate to create an issue of fact as to whether a reasonable personobserving plaintiff's surgical scars would consider them "unattractive or objectionable"(Peterson v Cellery, 93AD3d 911, 915 [2012]; see Matula v Clement, 132 AD2d 739, 740 [1987],lv denied 70 NY2d 610 [1987]).
We find, however, that Supreme Court erred in denying defendant's motion forsummary judgment dismissing plaintiffs' serious injury claims under the permanent lossof use and 90/180-day categories. Although plaintiffs' bill of particulars asserted apermanent loss of use of plaintiff's neck and hip, the record is devoid of evidenceestablishing that her injuries, though permanent, constituted a total loss (see Davis v Cottrell, 101 AD3d1300, 1301 [2012]; MacMillan v Cleveland, 82 AD3d 1388, 1388 n 1 [2011]).Furthermore, a 90/180-day claim must be supported by competent evidence of a"medically determined injury or impairment of a non-permanent nature" that preventedher from performing her daily activities for at least 90 of the 180 days following theaccident (Insurance Law § 5102 [d]; see Clark v Basco, 83 AD3d 1136, 1139-1140 [2011]). Therecord evidence demonstrates that plaintiff, who was employed as a food servicesassistant for a school district, did not immediately return to work after the accident, as theschool year ended two days later. However, plaintiff resumed employment in September2008 and, despite subjective complaints to Lawrence on October 29, 2008 that she had"constant" back pain and was having "difficulty at work," there is no evidence thatplaintiff's physicians placed any restrictions on her daily activities within the 180-dayperiod following the accident.[FN*] Although plaintiff maintained that sheneeded assistance from coworkers and family members to complete certain tasks at homeand at work, plaintiff failed to present sufficient evidence that her daily activities weresubstantially curtailed within the relevant time period (see Davis v Cottrell, 101AD3d at 1303-1304 [2012]; Womack v Wilhelm, 96 AD3d 1308, 1311[*4][2012]; Nowak v Breen, 55 AD3d 1186, 1188-1189 [2008]).
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as denied defendant'smotion for summary judgment dismissing that part of the complaint alleging that plaintiffDarlene Raucci suffered a serious injury in the permanent loss of use and 90/180-daycategories; motion granted to that extent, partial summary judgment awarded todefendant and said claims dismissed; and, as so modified, affirmed.
Footnote *:During her examinationbefore trial, plaintiff testified that she returned to work in September 2008 and wassubject to medical limitations at that time. However, there is no evidence in the record tosupport that contention.