| Motrie v Reid |
| 2007 NY Slip Op 08154 [45 AD3d 941] |
| November 1, 2007 |
| Appellate Division, Third Department |
| Irene M. Motrie, Appellant, v Sara J. Reid, Respondent, et al.,Defendant. |
—[*1] Hanson & Fishbein, Albany (Paul G. Hanson of counsel), for respondent.
Mugglin, J. Appeal from an order of the Supreme Court (Bradley, J.), entered October 27,2006 in Ulster County, which granted defendant Sara J. Reid's motion for summary judgmentdismissing the complaint against her.
Defendant Sara J. Reid (hereinafter defendant), while backing up her car in a store parkinglot, collided with plaintiff's vehicle. Plaintiff asserts that she sustained a serious injury to herright wrist in these categories: permanent consequential limitation of use; significant limitation ofuse; and prevention from performing her usual and customary activities for 90 out of the first 180days immediately following the accident[FN*](see Insurance Law § 5102 [d]). Notably, plaintiff injured this wrist on at leastthree prior occasions. Supreme Court concluded that plaintiff sustained no serious injury andgranted summary judgment to defendant dismissing the complaint against her. Plaintiff appeals,arguing that defendant did not demonstrate entitlement to summary judgment or, alternatively,that questions of fact exist as to both the [*2]permanentconsequential limitation of use and significant limitation of use categories.
To establish entitlement to summary judgment, defendant must submit competent medicalevidence that plaintiff did not sustain a serious injury (see CPLR 3212 [b]; Snow v Harrington, 40 AD3d1237, 1238, [2007]; Madden vDake, 30 AD3d 932, 935 [2006]; Haddadnia v Saville, 29 AD3d 1211, 1211 [2006]; Burnett vZito, 252 AD2d 879, 881 [1998]). Once this occurs, plaintiff is obligated to submit objectivemedical evidence sufficient to raise a triable issue of fact regarding the existence of a seriousinjury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 351 [2002]; Snow vHarrington, 40 AD3d at 1238; Hayes v Johnston, 17 AD3d 853, 854 [2005]; Marks v Brown, 3 AD3d 648,648-649 [2004]). In support of the motion, defendant submitted the pleadings, plaintiff'sexamination before trial testimony, plaintiff's employment records (which established thatplaintiff missed only six weeks of work following the accident) and multiple medical records andaffidavits. These records reveal that plaintiff's family physician had her wrist X-rayed and thatthe X rays revealed no fracture. Plaintiff was then examined by an orthopedic surgeon who foundno significant swelling or deformity, normal motor and sensory functions and full radiocarpalmotion; a follow-up examination by this orthopedic surgeon revealed no swelling, good range ofmotion and improvement from prior symptoms of tenosynovitis, and an MRI ordered by thissurgeon revealed no intrinsic lesions. A second opinion sought by plaintiff resulted in X raysbeing taken to compare plaintiff's right wrist with X rays previously taken in 1995 with a findingof "[m]ild degenerative changes of [the] first carpal metacarpal joint." Finally, a third orthopedicsurgeon examined plaintiff and diagnosed "a very mild tenosynovitis of the right wrist [which] istruly minor and does not present with any kind of disability [and t]here is certainly no reason whythis amount of tenosynovitis would keep [plaintiff] out of work."
In our view, this evidence is more than sufficient to sustain defendant's initial burden, and itthen became incumbent upon plaintiff to submit objective medical evidence to raise an issue offact with respect to whether she sustained a serious injury within the meaning of the statute. In anattempt to meet this burden, plaintiff submitted a second affidavit from her family physician. He,in reliance on a report from a physician at the Hand Center of Western New York, who examinedplaintiff and conducted an MRI study, concluded that plaintiff sustained a scapholunate ligamentdisruption. Careful analysis of these two reports leads us to conclude that plaintiff has failed tosubmit competent evidence that raises an issue of fact that this ligament tear was caused by thismotor vehicle accident or that the injury is serious within the meaning of Insurance Law §5102 (d) as there appears to be no permanent consequential or significant limitation of use.
Mercure, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: At oral argument, plaintiff'scounsel conceded that a claim under the 90/180-day category is no longer asserted.