| Saleh v Bryant |
| 2008 NY Slip Op 02061 [49 AD3d 991] |
| March 13, 2008 |
| Appellate Division, Third Department |
| Sheila Saleh, Appellant, v Nicole C. Bryant,Respondent. |
—[*1] Horigan, Horigan, Lombardo & Kelly, P.C., Amsterdam (Joseph D. Giannetti of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Kramer, J.), entered March 9,2007 in Schenectady County, which granted defendant's motion for summary judgmentdismissing the complaint.
On January 9, 2004, plaintiff was involved in an automobile accident in the City ofSchenectady, Schenectady County when her vehicle was struck by a vehicle driven by defendant.She commenced this negligence action and alleged that, as a result of the accident, she sufferedfrom "positional vertigo, exacerbation of bilateral knee pain . . . , swelling of knees,cervical strain, tingling and shooting pain to bilateral arms and hands, [and] intermittent leftshoulder pain." Following joinder of issue, defendant moved for summary judgment dismissingthe complaint on the ground that plaintiff did not sustain a serious injury under Insurance Law§ 5102 (d). Plaintiff opposed the motion and cross-moved for partial summary judgmenton the issue of liability. Supreme Court granted defendant's motion and dismissed the complaint,and this appeal ensued.
Plaintiff asserts that she sustained a serious injury under each of the four categories set forthin Insurance Law § 5102 (d), namely, that she suffered a "permanent loss of use of a bodyorgan, member, function or system," a "permanent consequential limitation of use of a body[*2]organ or member," a "significant limitation of use of a bodyfunction or system," and a nonpermanent injury that rendered her unable to perform substantiallyall of the material acts which constitute her usual and customary daily activities for at least 90 ofthe 180 days immediately following the accident. Contrary to plaintiff's claim, we find thatdefendant satisfied her prima facie burden of demonstrating that plaintiff's afflictions did not riseto the level of a serious injury as defined in the aforementioned categories (see Pommells v Perez, 4 NY3d566, 574 [2005]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).
In support of her motion, defendant submitted medical records concerning plaintiff'streatment both before and after the accident, as well as excerpts of her deposition testimony. Therecords disclose that when plaintiff was taken to the emergency room following the accident, shewas diagnosed with only a facial contusion. The diagnostic tests did not reveal any fractures ofplaintiff's spine or shoulder. Shortly after the accident, plaintiff went to an orthopedic cliniccomplaining of bilateral knee pain and tingling in the bilateral arms and legs. Significantly, themedical notes indicate that the knee pain "has been going on for a couple of years" and that thetingling is "occasional." Plaintiff underwent physical therapy for the knee pain but, after shecompleted it in February 2004, her physician did not undertake further treatment. Rather, hedirected her to continue on a home exercise program and to wear knee braces as needed.
The medical records further indicate that plaintiff also experienced vertigo following theaccident which she first mentioned during a follow-up visit to the hospital. According to suchrecords, this was a recurrence as plaintiff had been previously diagnosed with vertigo inNovember 2003. Notably, during her visit to an otolaryngologist in February 2004, plaintiffreported that the episodes lasted less than one minute and usually occurred while she was lyingdown or looking up.
The above evidence establishes that plaintiff's injuries did not fall into the permanent loss ofuse, permanent consequential limitation or significant limitation categories of serious injury setforth in Insurance Law § 5102 (d). Moreover, inasmuch as plaintiff failed to clearlydelineate the scope and duration of the usual and customary tasks she was allegedly unable toperform following the accident during her deposition, the requirements of the 90/180-daycategory were also not satisfied. Consequently, the burden shifted to plaintiff to put forth proofsufficient to raise a question of fact as to whether she suffered a serious injury under any of theabove categories (see Gaddy v Eyler, 79 NY2d at 957).
Under the permanent loss of use category, a plaintiff must establish that the loss of use istotal (see Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]; Best v Bleau,300 AD2d 858, 860 [2002]). Under the permanent consequential limitation and significantlimitation of use categories, a plaintiff must present medical proof containing " 'objective,quantitative evidence with respect to diminished range of motion or a qualitative assessmentcomparing plaintiff's present limitations to the normal function, purpose and use of the affectedbody organ, member, function or system' " (Felton v Kelly, 44 AD3d 1217, 1218-1219 [2007], quoting John v Engel, 2 AD3d 1027, 1029[2003]). Finally, under the 90/180-day category, a plaintiff must adduce "objective evidence of a'medically determined injury or impairment of a non-permanent nature which prevent[ed] [theplaintiff] from performing substantially all of the material acts which constitute [his or her] usualand customary daily activities' for at least 90 of the 180 days immediately following the accident"(Felton v Kelly, 44 AD3d at 1219, quoting Insurance Law § 5102 [d]).[*3]
The only medical evidence presented by plaintiff inopposition to defendant's motion was the report of an otolaryngologist who examined her for thefirst time in April 2006 as part of an independent medical examination requested by defendant.While this otolaryngologist confirmed the diagnosis of vertigo, he indicated that it had "subsidedon its own" and noted that plaintiff did not require treatment at the time he examined her.Although he stated that she was prone to having recurrences, he did not provide an opinion withrespect to permanency or indicate that plaintiff suffered from any physical limitations or wasrestricted in her activities. Significantly, no medical evidence was adduced by plaintiff withrespect to her other alleged injuries. Moreover, plaintiff's self-serving affidavit, in which shesought to remedy deficiencies in her deposition testimony concerning her inability to performcertain activities, was insufficient to raise a question of fact as to the 90/180-day category (seeDrexler v Melanson, 301 AD2d 916, 918-919 [2003]). Accordingly, Supreme Court properlydismissed the complaint. In view of our disposition, we need not address plaintiff's cross motion.
Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed,with costs.