| Scott v Aponte |
| 2008 NY Slip Op 02737 [49 AD3d 1131] |
| March 27, 2008 |
| Appellate Division, Third Department |
| Deborah L. Scott et al., Appellants, v Laura Aponte,Respondent. |
—[*1] Eisenberg & Kirsch, Saratoga Springs (Jeffrey D. Wait of counsel), for respondent.
Carpinello, J. Appeal from an order of the Supreme Court (Zwack, J.), entered March 16,2007 in Ulster County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiffs commenced this personal injury action alleging that plaintiff Deborah L. Scott(hereinafter plaintiff) sustained a serious injury as a result of a February 15, 2005 automobileaccident with defendant. This appeal stems from defendant's successful motion for summaryjudgment dismissing the complaint. We now affirm.
On appeal, plaintiffs contend that questions of fact have been raised under two categories ofserious injury, namely, permanent consequential limitation of use of a body organ or member andsignificant limitation of use of a body function or system. In particular, they claim that theaccident caused a "torn shoulder" warranting surgery, loss of use of plaintiff's right shoulder anda disc herniation. Upon our review of the record, we are unpersuaded. Defendant, through thesubmission of a detailed and comprehensive report of an orthopedic surgeon who reviewedplaintiff's medical history and conducted his own examination, made a prima facie showing thatneither plaintiff's shoulder injury nor disc herniation was caused by the subject accident and that,in any event, neither qualified as a serious injury (see Toure v Avis Rent A Car Sys., 98NY2d 345, 352 [2002]). In opposition, plaintiffs' submissions were insufficient to defeatsummary judgment because plaintiff's treating orthopedic surgeon failed to adequately [*2]address a preexisting shoulder problem and the delayed onset ofcomplaints or provide any foundation or objective medical basis to support the claim of asignificant limitation of use of a body function or system (see id.).[FN1]
We first address causation. It is undisputed that plaintiff was treated for a right shoulderinjury prior to the accident. This treatment included a relatively recent surgery for a labral tearand several weeks of physical therapy which lasted until one month before the subject accident.Significantly, upon being treated at a local emergency room immediately following the accident,the only injuries alleged by plaintiff concerned her hand, which had been cut, and knee pain. Shemade no complaints about her shoulder.
Three weeks after the accident, she began treating with an orthopedic surgeon for the kneepain and never once complained to this physician about pain in her shoulder. Nor did she makeany such complaint to the surgeon who treated her hand. It is undisputed that all hand and kneeissues were fully resolved within several weeks following the accident. It is also undisputed thatplaintiff missed only one day of work as a veterinarian technician immediately following theaccident.
The first time that plaintiff sought treatment for shoulder pain was approximately sevenweeks after the accident during an appointment with the orthopedic surgeon who performed herprior surgery. While a May 11, 2005 MRI raised concerns about a recurrent labral tear and asupraspinatus tendon tear, neither finding was confirmed during subsequent arthroscopic surgery.In fact, defendant's expert unequivocally opined, without contradiction, that had plaintiffsustained a tendon tear on the day of the accident, she would have experienced immediate pain,which she did not.
Following arthroscopic surgery, plaintiff underwent physical therapy and missed about twoweeks of work. She then performed light duty assignments for one month and resumed full dutieswith no subsequent interruption of work because of her shoulder. With respect to plaintiff's discherniation, this ailment was not diagnosed until 11 months after the accident following the onsetof intermittent numbness some nine months after the accident. She again underwent physicaltherapy which resolved these symptoms (see n, supra).
Based on this sequence of medical events, particularly her past history of right shoulderproblems, and preaccident surgery for same and her lack of shoulder or numbness complaintsimmediately following the accident, defendant's expert opined that neither injury wasproximately related to the accident. In opposing summary judgment, plaintiff's treating [*3]orthopedic surgeon submitted a relatively brief narrative of hermedical history following which he summarily opined, without detail or explanation, thatplaintiff's shoulder "symptoms" were caused by the accident.[FN2]With respect to the numbness associated with her disc herniation, his opinion was not onlysummary but equivocal, i.e., he opined, again without detail or explanation, that plaintiff'sradicular symptoms "were either a delayed effect of the original motor vehicle accident or apreexisting condition that was exacerbated by the [arthroscopic] shoulder surgery." In our view,this was insufficient to raise a question of fact on the issue of causation. In particular, the treatingsurgeon failed to explain the effect of plaintiff's prior shoulder injury on the claimed accidentinjury, failed to explain the delay in the onset of her shoulder and numbness complaints andfailed to provide any foundation or objective medical basis supporting his conclusion that eitherinjury was actually caused by the accident itself (see Pommells v Perez, 4 NY3d 566 [2005]; Franchini v Palmieri, 1 NY3d 536[2003]).
Next, even assuming some causal relationship between the accident and plaintiff's shoulderinjury and disc herniation, defendant nevertheless established that plaintiff did not suffer asignificant limitation of use of any body function or system. To establish this category of seriousinjury, "the medical evidence must provide either a quantitative or qualitative assessment todifferentiate serious injuries from mild or moderate ones" (Secore v Allen, 27 AD3d 825, 827 [2006] [internal quotationmarks and citation omitted]; see Feltonv Kelly, 44 AD3d 1217, 1218-1219 [2007]; Pugh v DeSantis, 37 AD3d 1026, 1029 [2007]; Smith v Genardo, 27 AD3d 821,823-824 [2006]). Here, even assuming shoulder damage and disc herniation caused by theaccident, plaintiffs' proof fell short of demonstrating that either constituted a significantlimitation.
Following arthroscopic surgery, plaintiff resumed full-time employment after about twoweeks and full duty assignments as of June 20, 2005. Indeed, she never sought any subsequentmedical treatment for her shoulder after this time. A physical examination conducted bydefendant's expert one year later revealed that her right shoulder was "completely normal" with"a complete painless range of all active and passive right shoulder motions." Even her treatingorthopedic surgeon opined that she underwent surgery "with good effect" and had no permanentdeficit with regard to her shoulder. Additionally, this surgeon never discussed any degree ofsignificant impairment of the shoulder or provided an analysis of any alleged limitationcompared to normal functioning which would support a conclusion that it was significant.
Likewise, with respect to the disc herniation, plaintiffs failed to submit objective medicalproof demonstrating the actual physical limitation of use that plaintiff sustained as a result of thisinjury (see Pommells v Perez, supra). Indeed, according to plaintiff's surgeon, allsymptoms relating to the disc herniation resolved with a short course of physical therapy. Simplyput, the record fails to establish that any injury allegedly caused by the accident was more than amild, minor or slight limitation and, therefore, summary judgment was properly granted to [*4]defendant (see Felton v Kelly, supra; Flisch v Walters, 42 AD3d 682[2007]; Pugh v DeSantis, supra; Smith v Genardo, supra).
Cardona, P.J., Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: Since plaintiff's own treatingorthopedic surgeon conceded in a sworn submission to Supreme Court in opposition to summaryjudgment that "there is no permanent deficit present with regard to [plaintiff's] shoulder function"and that all symptoms relating to her disc herniation were resolved through "nonoperativemanagement," summary judgment was clearly appropriate under the permanent consequentiallimitation category of serious injury and we see no reason to discuss this issue.
Footnote 2: Notably, to the extent that arotator cuff tear was observed and repaired during arthroscopic surgery, plaintiff's treatingorthopedic surgeon does not even mention this precise injury in his submission to Supreme Courtor specifically relate it to the accident. Rather, as noted, he claims only generally that the accidentprecipitated her symptoms.