| Flanders v National Grange Mut. Ins. Co. |
| 2015 NY Slip Op 00422 [124 AD3d 1035] |
| January 15, 2015 |
| Appellate Division, Third Department |
[*1]
| Roberta M. Flanders et al., Respondents, v NationalGrange Mutual Insurance Company, Appellant. |
Levene Gouldin & Thompson, LLP, Binghamton (Lauren Kiley Saleeby ofcounsel), for appellant.
Pope & Schrader, LLP, Binghamton (Kurt D. Schrader of counsel), forrespondents.
Garry, J. Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.),entered May 31, 2014 in Broome County, which denied defendant's motion for summaryjudgment dismissing the complaint.
In August 2006, plaintiff Roberta M. Flanders (hereinafter plaintiff) was rear-endedwhile driving her car. After settling an action against the driver of the car that hit her,plaintiff and her husband, derivatively, commenced this action against defendant seekingsupplementary underinsured motorist coverage, alleging that, as a result of the accident,she suffered a serious injury as defined in Insurance Law § 5102 (d).Defendant moved for summary judgment dismissing the complaint, asserting that, basedon a report completed following an August 2011 independent medical examination,plaintiff did not suffer a serious injury under the claimed permanent consequentiallimitation of use, significant limitation of use or 90/180-day categories. Supreme Courtdenied the motion, finding that plaintiffs had raised issues of fact relative to the categoryof significant limitation of use. Defendant appeals.
As the proponent of the motion for summary judgment, defendant bore the burden ofestablishing through the submission of competent medical evidence that plaintiff did notsuffer a serious injury as a result of the accident (see Toure v Avis Rent A CarSys., 98 NY2d 345, 352 [2002]; Raucci v Hester, 119 AD3d 1044, 1044 [2014]). Defendantprimarily relied on two reports by neurosurgeon Michael Shende. The first report, issuedin July 2011, was based solely upon review of plaintiff's medical records, and the secondwas issued thereafter in August 2011 [*2]following aphysical examination of plaintiff. In essence, Shende opined that plaintiff had noobjective neurological impairments, that she suffered from preexisting lumbar andcervical spondylolisthesis, and that while there was some evidence of preexistingmigraine headaches warranting treatment by a neurologist, the records did notdemonstrate that she suffered a head injury in the accident that could have causedpost-concussion syndrome or her "limited memory problems." While noting certainweaknesses in the submission, Supreme Court properly held that the evidence profferedby defendant's expert was sufficient to demonstrate a prima facie case for summaryjudgment in defendant's favor, with issues of weight and credibility reserved for thefactfinder. We agree that defendant met its initial burden (see Pommells v Perez, 4 NY3d566, 580 [2005]; Clark vBasco, 83 AD3d 1136, 1138 [2011]), thus shifting the burden to plaintiffs toraise an issue of fact with "competent proof based upon objective medical findings andtests to support any alleged serious injuries and connect them to the accident" (Davis v Cottrell, 101 AD3d1300, 1301 [2012]; seeParks v Miclette, 41 AD3d 1107, 1109-1110 [2007]).
Plaintiff's initial course of medical treatment was primarily aimed at addressing herorthopedic injuries and, although these treatment records are available within the record,plaintiffs submitted no expert medical proof to refute the opinions expressed bydefendant's medical expert relative to these injuries. Plaintiffs further submit extensivearguments as to alleged weaknesses and inconsistencies in defendant's expert proof.However, plaintiffs' unsupported assertions and criticisms of the quality of defendant'ssubmissions do not constitute the requisite competent medical proof. Accordingly, ourlegal review is limited to the issues posed and the quantum of evidence proffered byplaintiffs' neuropsychological expert, Nathan Hare.
Plaintiff was referred to Hare by her neurologist for a neuropsychological evaluationof potential post-concussion syndrome. In July 2007, Hare conducted this evaluation andconcluded, among other things, that plaintiff suffered from "mild to moderate cerebraldysfunction . . . characteristic of postconcussive syndrome." Thereafter, inopposition to defendant's summary judgment motion, plaintiffs submitted an affidavitfrom Hare that incorporated by reference a December 2011 report in which Harediscussed his neuropsychological evaluation and his review of the report completed bydefendant's expert. In these documents, Hare stated that, in the course of his examinationof plaintiff, he had administered a battery of tests including, among others, the WAIS-3,Stroop Test, Brief Test of Attention, Booklet Category Test, Grooved Pegboard Test, anda WMS-III. Based upon his clinical review and testing, Hare formed the professionalopinion that plaintiff demonstrated "psychometrically documented deficits in. . . cognitive function [that] included decreased attention/concentration. . . , mild impairment of concept recognition and development. . . , decreased fine motor coordination . . . and reducedmemory function" in specifically identified areas. These deficits, in Hare's view, placedplaintiff in the impaired range "in a variety of areas involving cognitive function" andwere sufficiently severe to constitute serious injury within the meaning of Insurance Law§ 5102 (d). Based upon his clinical experience, Hare opined that plaintiff'sdeficits as revealed by the objective testing were consistent with her subjectivecomplaints of "significant life impairment in a variety of areas [related to] cognitivefunction."
Hare further opined, based upon his clinical experience, that plaintiff's impairmentwas causally related to the impact of her head against the headrest during the accidentand the significant chronic muscular-skeletal pain that she experienced thereafter. Absentevidence that plaintiff had suffered from cognitive impairments prior to the accident, andin view of her report that she had not, it was both reasonable and legally acceptable forHare to attribute the cause of the decrease in her cognitive function to the motor vehiclecollision (see Krivit v Pitula, 79 AD3d [*3]1432,1434 [2010]). Finally, Hare opined that plaintiff's condition was "not transient," as histesting was performed approximately 11 months following the date of plaintiff'straumatic injury.
Hare's December 2011 report summarizes the results of the multiple psychometrictests administered during the neuropsychological evaluation. More detailed results arecontained in the evaluation, which specifically documents the results of each test inquantitative terms and further determines the degree of plaintiff's impairment in eachtested area of function by comparing her performance to average norms. Hare's affidavitand report summarizing the results of his neuropsychological evaluation thus meet theestablished legal standard for expert testimony substantiating a serious injury claim(see Toure v Avis Rent A Car Sys., 98 NY2d at 350-351).[FN*] Viewing the evidence inthe light most favorable to plaintiffs, as we must (see id. at 353), we find thatplaintiffs met their burden in opposition to defendant's motion by providing the requisite"objectively measured quantum of evidence necessary to satisfy [the significantlimitation of use] category of serious injury" (Sellitto v Casey, 268 AD2d 753,755 [2000]; see Krivit v Pitula, 79 AD3d at 1433-1434; Mrozinski v St.John, 304 AD2d 950, 951-952 [2003]; Jordan v Goldstein, 129 AD2d 616,617 [1987]; compare Bissonette v Compo, 307 AD2d 673, 674 [2003];Chapman v Capoccia, 283 AD2d 798, 800 [2001]).
In regard to the degree or severity of impairment, we note that Hare's reportdocuments impairments in a variety of areas and describes only one of them as mild. Hefurther opines that, based on their continued existence almost a full year after theaccident, they were "not transient." Multiple mild cognitive impairments may besufficient to demonstrate the existence of serious injury in the significant limitation ofuse category when they result in a combined impact that limits one's ability to performdaily life functions (see Viscusiv Ostrowski, 25 Misc 3d 1213[A], 2007 NY Slip Op 52652[U], *4 [Sup Ct,Schenectady County 2007], affd 53 AD3d 965, 965-966 [2008]).
Finally, although there was a period of time during which plaintiff did not engage incognitive therapy treatment, she explained that she had discontinued the therapy whileshe engaged in grief counseling following the death of her mother and had used "memoryaids and organizational skills" to function. Several years later, she experienced anepisode of severe memory loss that could have had a serious adverse impact on herfamily, and she thereafter resumed weekly treatments. Taken together with Hare'suncontradicted expert opinion that her injury was not transient, we find that, while thesecircumstances may affect the weight a jury chooses to give to this aspect of the proof,they cannot serve to disqualify plaintiffs, as a matter of law, from demonstrating thatplaintiff suffered from a chronic injury and resulting significant limitation of use.Instead, the conflicting evidence "gives rise to a dispute among experts for the jury todecide" (Haddadnia vSaville, 29 AD3d 1211, 1212 [2006]). Accordingly, we affirm Supreme Court'sorder.
Egan Jr. and Devine, JJ., concur.
Lynch, J. (dissenting). We agree with the majority's conclusion that defendant met itsinitial burden on the motion for summary judgment and that plaintiffs' submissions didnot constitute the requisite competent medical proof with regard to the orthopedicinjuries of plaintiff Roberta M. Flanders (hereinafter plaintiff). Because we do notbelieve that plaintiffs raised a material question of fact with regard to plaintiff's allegedcognitive injuries, we respectfully dissent.
A plaintiff seeking to establish a claim under the significant limitation of usecategories of serious injury must provide "objective, quantitative evidence with respect todiminished range of motion or a qualitative assessment comparing [the] plaintiff's presentlimitations to the normal function, purpose and use of the affected body organ, member,function or system" (Clark vBasco, 83 AD3d 1136, 1138 [2011] [internal quotation marks and citationsomitted]; see Parks vMiclette, 41 AD3d 1107, 1110 [2007]). If the claimed limitation is mild orslight, it is not a serious injury as defined by Insurance Law § 5102 (d) (see DeHaas v Kathan, 100AD3d 1057, 1058 [2012]; Womack v Wilhelm, 96 AD3d 1308, 1311 [2012];Parks v Miclette, 41 AD3d at 1110-1111; Simpson v Feyrer, 27 AD3d 881, 882-883 [2006]). Here,plaintiffs have presented no objective evidence of a head injury (compare Viscusi v Ostrowski,25 Misc 3d 1213[A], 2007 NY Slip Op 52652[U], *1 [Sup Ct, Schenectady County2007], affd 53 AD3d 965, 965-966 [2008] [the plaintiff lost consciousness]) and,while plaintiff explains why she stopped cognitive therapy, she does not provide areasonable explanation for failing to resume such therapy for more than four years (see Pommells v Perez, 4 NY3d566, 574 [2005]). By his conclusory affidavit, plaintiff's psychologist, Nathan Hare,identifies certain cognitive deficits discovered during the neuropsychological testingconducted in 2007, characterizes one such deficit as mild, but otherwise fails to provideany quantitative or qualitative comparison of plaintiff's condition to normal function (see Palmeri v Zurn, 55 AD3d1017, 1019 [2008]; Simpson v Feyrer, 27 AD3d at 883; Serrano vCanton, 299 AD2d 703, 704-705 [2002]; compare Viscusi v Ostrowski, 25 Misc 3d 1213[A], 2007NY Slip Op 52652[U], *3-4 [2007] [the plaintiff's expert explained the tests in detail andopined that the combination of several mild deficiencies had a significant effect on theplaintiff's ability to function]). As Hare's report was generated more than four years afterhe tested plaintiff, we find his opinion deficient with regard to the "not transient" natureof plaintiff's condition (see Johnv Engel, 2 AD3d 1027, 1028-1029 [2003]).
In our view, because plaintiffs failed to establish the existence of a genuine factualissue with regard to whether plaintiff sustained a serious injury as a result of the accident,Supreme Court should have granted defendant's motion and dismissed thecomplaint.
Lahtinen, J., concurs. Ordered that the order is affirmed, with costs.
Footnote *:Notably, and in contrast,defendant's expert conducted no psychometric testing of his own, nor did he opine thatthe cognitive impairments that Hare identified predated the accident; instead, he did nomore than summarily dismiss Hare's opinions based upon his own conclusions thatplaintiff had preexisting headaches and orthopedic issues, as well as his apparentskepticism as to the mechanism of her injury.