| McKenzie v Redl |
| 2008 NY Slip Op 00464 [47 AD3d 775] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Seaton McKenzie, Sr., Appellant, v Susan G. Redl et al.,Respondents. (Action No. 1.) Seaton McKenzie, Sr., Appellant, v Ryan M. Richmond et al.,Respondents. (Action No. 2.) |
—[*1] McCabe & Mack LLP, Poughkeepsie, N.Y. (Kimberly Hunt Lee of counsel), for respondentsSusan G. Redl and Sharon M. Redl in Action No. 1. Kris T. Jackstadt, Albany, N.Y. (Mark P. Donohue of counsel), for respondents Ryan M.Richmond and Kelly M. Richmond in Action No. 2.
In two related actions to recover damages for personal injuries which were joined bystipulation for purposes of discovery and trial, the plaintiff appeals from an order of the SupremeCourt, Dutchess County (Pagones, J.), dated December 18, 2006, which granted the defendants'respective motions for summary judgment dismissing the complaints on the ground that he didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' respectivemotions for summary judgment dismissing the complaints are denied.
The plaintiff commenced an action against the defendants Susan G. Redl and Sharon M. Redl[*2]to recover damages for injuries allegedly arising from a motorvehicle accident that occurred on December 19, 2001 (hereinafter the Redl action). Hecommenced an action against the defendants Ryan M. Richmond and Kelly S. Richmond torecover damages for injuries allegedly arising from a motor vehicle accident that occurred onJune 26, 2004 (hereinafter the Richmond action). The actions were joined by stipulation forpurposes of discovery and trial. The defendants in each action moved for summary judgmentdismissing the respective complaints. Each argued that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) as a result of the subject accidents,but rather that all of his injuries were pre-existing because of prior accidents, and were notexacerbated by the subject accidents (seee.g. Lea v Cucuzza, 43 AD3d 882 [2007]). The Supreme Court granted both motions.We reverse.
The Redl defendants failed to demonstrate their prima facie entitlement to judgment as amatter of law. In support of their motion, the Redl defendants submitted, inter alia, affirmedmedical reports from Dr. George Steiner, who examined the plaintiff after the accident at issue inthe Redl action (hereinafter the Redl accident). Ultimately, Steiner concluded that the injuriessustained in the Redl accident were limited to "acute cervical sprain" and "acute lumbrosacralsprain." However, although Dr. Steiner assigned various numeric values to range-of-motion testshe performed on the plaintiff, he failed to compare those numeric findings to what is deemednormal. Further, although the findings appear to indicate various decreases in the plaintiff'sranges of motion, Steiner established no basis upon which it might be concluded that suchdecreases were neither caused nor exacerbated by the Redl accident. Indeed, upon examinationby Steiner, the range of motion of the plaintiff's lower back was "30 degrees forward flexion." Inanother medical report submitted by the Redl defendants, prepared by the plaintiff's long-timetreating orthopedist, the same range of motion prior to the Redl accident was 60 degrees flexion.In sum, the Redl defendants failed to demonstrate prima facie entitlement to judgment as a matterof law with evidence that the injuries at issue were attributable to prior accidents or pre-existingconditions, and were not exacerbated by the Redl accident (see Cebularz v Diorio, 32 AD3d 975, 976 [2006]).
In support of their motion, the Richmond defendants submitted, inter alia, an affirmedmedical report from Dr. Robert Hendler. In the report, Hendler recounted the significant medicalhistory and treatment of the plaintiff's back and neck (which included multiple surgeries) relatedto a work accident and two motor vehicle accidents (one of which is the accident at issue in theRedl action) that occurred prior to the accident at issue in the Richmond action (hereinafter theRichmond accident). Ultimately, Hendler concluded that the injuries incurred in the Richmondaccident were limited to "cervical and lumbrosacral sprain, with a temporary aggravation of aprior neck and lower back condition." Further, he concluded, such injuries "would not be thecause for any significant further treatment." However, upon his examination of the plaintiff afterthe Richmond accident, Hendler noted various decreases in the plaintiff's range of motion in hiscervical spine and lumbar spine, without establishing any basis upon which it might be concludedthat such decreases were neither caused nor exacerbated by the Richmond accident. Further,although Hendler characterized the decreases as "slight," he did not set forth any numericrange-of-motion values. Similarly, although he assigned numeric values to other physical testsperformed on the plaintiff, he failed to compare those numeric values to what is deemed normal.Absent such a comparative quantification of his findings, it cannot be concluded that the range ofmotion in the plaintiff's cervical and lumbar spine was normal, or that any limitations were mild,minor, or slight as to be considered insignificant within the meaning of the no-fault statute (see McLaughlin v Rizzo, 38 AD3d856 [2007]; Spektor v Dichy,34 AD3d 557 [2006]; Cebularz vDiorio, 32 AD3d 975 [2006]; Gentile v Snook, 20 AD3d 389 [2005]). Therefore, the Richmonddefendants failed to demonstrate their prima facie entitlement [*3]to judgment as a matter of law with evidence that the injuries atissue were attributable to prior accidents or pre-existing conditions, and were not exacerbated bythe Richmond accident (see Cebularz vDiorio, 32 AD3d 975, 796 [2006]).
Consequently, summary judgment should have been denied to the defendants regardless ofthe sufficiency of the plaintiff's opposing papers. Ritter, J.P., Florio, Miller and Dillon, JJ.,concur.