| Felton v Kelly |
| 2007 NY Slip Op 07969 [44 AD3d 1217] |
| October 25, 2007 |
| Appellate Division, Third Department |
| Gregg B. Felton et al., Respondents, v Patricia V. Kelly,Appellant. |
—[*1] Basch & Keegan, L.L.P., Kingston (Derek J. Spada of counsel), for respondents.
Cardona, P.J. Appeal from an order of the Supreme Court (Kavanagh, J.), entered October19, 2006 in Ulster County, which denied defendant's motion for summary judgment dismissingthe complaint.
Plaintiff Gregg B. Felton (hereinafter plaintiff) was injured in June 2004 when the car he wasdriving collided with defendant's vehicle. Specifically, plaintiff alleged that he suffered fromback and neck pain, headaches and blurred vision. Plaintiff and his wife, derivatively,commenced this action claiming that plaintiff sustained a serious injury within the meaning ofInsurance Law § 5102 (d). Finding that questions of fact existed, Supreme Court denieddefendant's motion for summary judgment dismissing the complaint, prompting this appeal.
As the proponent of the summary judgment motion, defendant bore the initial burden ofestablishing that plaintiff did not suffer a causally-related serious injury under the permanentconsequential limitation of use, significant limitation of use, and 90/180-day categories specifiedin plaintiffs' bill of particulars (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352[2002]; Secore v Allen, 27 AD3d825, 827 [2006]). Among other things, defendant submitted (1) plaintiff's prior medicalreports indicating a history of back problems that culminated in spinal disc surgery in 1997, (2) apostaccident lumbar MRI which indicated only postoperative changes in the lumbar region, withno disc herniation, (3) a November 2005 report of orthopedic surgeon Richard Moscowitz statingthat plaintiff's symptoms of cervical and lumbosacral strain were mild [*2]and were not causally related to the accident, (4) plaintiff's medicalrecords indicating previous vision problems associated with a diagnosis of probable multiplesclerosis, and (5) a postaccident brain MRI indicating features suspicious for multiple sclerosis.We find this evidence sufficient to sustain defendant's initial burden.
The burden then shifted to plaintiff to submit sufficient objective medical evidence tocreate a question of fact as to whether he sustained a serious injury within the meaning of theNo-Fault Law (see Insurance Law § 5102 [d]; Toure v Avis Rent A CarSys., 98 NY2d at 352; Pugh vDeSantis, 37 AD3d 1026, 1029 [2007]). Specifically, under the permanentconsequential limitation and significant limitation categories, plaintiffs were required to submitmedical proof containing "objective, quantitative evidence with respect to diminished range ofmotion or a qualitative assessment comparing plaintiff's present limitations to the normalfunction, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029[2003]; see Pugh v DeSantis, 37 AD3d at 1029; Clements v Lasher, 15 AD3d 712, 713 [2005]).
In this regard, plaintiffs rely heavily on the report of neurologist Mustafa Khan.[FN*] However, while Khan noted that mobility of plaintiff's cervical spine was "limited," he providedno qualitative or quantitative assessment of this limitation which would support a conclusion thatit was either permanent or significant. Furthermore, although Khan's report detailed plaintiff'ssubjective complaints of pain and discomfort and opined that plaintiff's migraine headaches,blurred vision and cervical sprain were related to the accident, neither a subsequent MRI nor anyother tests performed by Khan showed abnormalities attributable to the accident. In the absenceof such objective evidence, Khan's opinion that plaintiff suffers from a "permanent" "partialdisability" lacks sufficient probative value to sustain plaintiffs' burden.
Nor does the November 2005 report of neurologist Gabriel Aguilar, who examined plaintiffat defendant's request, raise a question of fact under these categories. Although Aguilarperformed certain objective tests and noted a causal connection between the accident andplaintiff's complaints of neck and back pain, he also found that at the time of the examinationplaintiff had a full range of motion and was no longer taking pain medications. Accordingly,Supreme Court should have dismissed plaintiffs' claims based upon the permanent consequentiallimitation and significant limitation of use categories (see Pugh v DeSantis, 37 AD3d at1028-1029; Clements v Lasher, 15 AD3d at 713).
With respect to the 90/180-day category, in order to sufficiently raise a triable issue of fact,plaintiffs were required to submit objective evidence of a "medically determined injury orimpairment of a non-permanent nature which prevent[ed] [plaintiff] from performing [*3]substantially all of the material acts which constitute [his] usual andcustomary daily activities" for at least 90 of the 180 days immediately following the accident(Insurance Law § 5102 [d]; see Secore v Allen, 27 AD3d at 828; Clements vLasher, 15 AD3d at 713). Plaintiffs met this burden with (1) plaintiff's own depositiontestimony that, following the accident, he suffered from headaches, blurry vision, and pain in hisneck and back, and that due to those problems he was out of work for seven months and wasunable to work around his house or participate in certain hobbies, (2) Khan's report, whichindicated that he had placed plaintiff on total disability during at least four of the six monthsfollowing the accident, and that he had imposed lifting restrictions upon plaintiff during thattime, and (3) the opinion of Aguilar who, after conducting numerous objective tests during hisexamination of plaintiff, concluded that plaintiff's cervical pain was related to the accident, hispreexisting lower back pain was aggravated by the accident, and his headaches were"questionably related" to the accident. Accordingly, we conclude that defendant's motion todismiss the 90/180-day claim was properly denied (see Pugh v DeSantis, 37 AD3d at1029-1030; Dooley v Davey, 21AD3d 1242, 1244-1245 [2005]).
Mercure, Peters, Spain and Carpinello, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as denied defendant's motion for summaryjudgment dismissing that part of the complaint alleging that plaintiff Gregg B. Felton suffered aserious injury in the permanent consequential limitation and significant limitation of usecategories; motion granted to that extent, partial summary judgment awarded to defendant andsaid claims dismissed; and, as so modified, affirmed.
Footnote *: We do not agree withdefendant's contention that this Court should not consider Khan's report. Although the originalcopy submitted to Supreme Court was unsworn, we note that plaintiffs thereafter submitted asworn copy of the same report and we are unpersuaded that the court failed to consider thatsworn copy.