| Alcombrack v Swarts |
| 2008 NY Slip Op 02239 [49 AD3d 1170] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| Alice Alcombrack et al., Respondents, v W.L. Swarts,Appellant. |
—[*1] Menter, Rudin & Trivelpiece, P.C., Syracuse (Steven B. Alderman of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Jefferson County (Joseph D. McGuire, J.), datedFebruary 7, 2007 in a personal injury action. The order granted plaintiffs' motion for partialsummary judgment and denied defendant's cross motion for summary judgment dismissing thecomplaint.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied, the cross motion is granted and the complaint is dismissed.
Memorandum: Wesley C. Alcombrack (decedent) and his wife, plaintiff Alice Alcombrack,commenced this action seeking damages for injuries sustained by decedent when the vehicledriven by defendant collided with the pickup truck driven by decedent. Decedent diedapproximately 18 months after the collision. As a result of the collision, decedent's pickup truckrolled over multiple times before coming to rest upside down on the side of the road, withdecedent hanging from his seatbelt. Decedent testified at his deposition that he felt "dazed," buthe did not lose consciousness. Decedent refused to go to the hospital for treatment immediatelyfollowing the collision but, later that evening, he sought treatment for headaches at an urgent carefacility. Although X rays, a CAT scan and an MRI of his head showed no brain injury, decedentcontinued to receive treatment for headaches from his primary care physician.
Plaintiffs moved for partial summary judgment on the issue of liability, including the issue ofserious injury pursuant to Insurance Law § 5102 (d). Defendant conceded his negligence incausing the collision inasmuch as he drove through a stop sign, but he cross-moved for summaryjudgment dismissing the complaint on the ground that decedent had not sustained a seriousinjury. In granting plaintiffs' motion, Supreme Court determined in relevant part that plaintiffsestablished their entitlement to judgment as a matter of law with respect to the 90/180 categoryof serious injury. That was error and, indeed, we conclude that the court should have granteddefendant's cross motion for summary judgment dismissing the complaint.[*2]
Plaintiffs failed to meet their initial burden with respectto the 90/180 category inasmuch as they failed to submit objective evidence establishing thatdecedent sustained "a medically determined injury or impairment of a non-permanent nature"(Insurance Law § 5102 [d]; see Nitti v Clerrico, 98 NY2d 345, 357 [2002];Parkhill v Cleary, 305 AD2d 1088, 1090 [2003]; Calucci v Baker, 299 AD2d897, 898 [2002]). The affidavit of decedent's treating physician is insufficient to establishplaintiffs' entitlement to judgment as a matter of law because it is based solely on decedent'ssubjective complaints of headaches (seeBurke v Carney, 37 AD3d 1107, 1108 [2007]; Constantine v Serafin, 16 AD3d 1145, 1146 [2005]; Solarzanov Power Test Petro, 181 AD2d 631 [1992], lv denied 80 NY2d 759 [1992]; seealso Fitzmaurice v Chase, 288 AD2d 651, 653-654 [2001]). Plaintiffs contend that theaffidavit constituted objective evidence of a medically determined injury because it was basedupon the physician's observation of actual, quantified limitations. We reject that contention. Theheadaches suffered by decedent were not physical limitations that could be observed by histreating physician and, in any event, the affidavit did not include any observations of quantifiedlimitations (cf. O'Neal v Cancilla, 294 AD2d 921 [2002]; Tompkins v Burtnick,236 AD2d 708, 709 [1997]; Parker v Defontaine-Stratton, 231 AD2d 412, 413 [1996]).
With respect to defendant's cross motion, because plaintiffs did not specify in the pleadingsany particular category or categories of serious injury allegedly sustained by decedent, defendantwas required to establish that decedent did not as a matter of law sustain a serious injury underany category (cf. Manrique v Warshaw Woolen Assoc., 297 AD2d 519, 519-520 [2002];see generally Randazzo v Our Lady of Mercy Med. Ctr., 284 AD2d 158 [2001]). Weconclude that defendant met that burden. In support of his cross motion, defendant submitted theaffirmation of a physician who reviewed the medical records of decedent and determined that hehad not sustained a serious head injury. Defendant also submitted medical records indicating thatdecedent sought medical treatment for a variety of symptoms following the collision but thatnone of the tests performed on his head revealed a medically determined injury that caused hisheadaches. We thus conclude that defendant met his initial burden with respect to the 90/180category, and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]). Contrary to plaintiffs' contention, the failure ofdefendant to obtain an independent medical examination of decedent did not require denial of hiscross motion. A qualified physician's opinion based upon a review of decedent's medical recordsmay constitute competent evidence sufficient to meet defendant's burden (see e.g. Monk vDupuis, 287 AD2d 187, 189 [2001]). We also reject plaintiffs' contention that the physician'saffirmation submitted by defendant was insufficient to establish his entitlement to judgment as amatter of law because the physician failed to address the required time period under the 90/180category. The physician described his review of decedent's medical records from the relevanttime period and set forth his conclusions with respect to those records. The physician'sconclusion that decedent "did not sustain a serious head injury" is broad enough to encompass allthe categories enumerated in Insurance Law § 5102 (d). Present—Smith, J.P., Lunn,Peradotto, Green and Pine, JJ.