| Beaton v Jones |
| 2008 NY Slip Op 03760 [50 AD3d 1500] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| Aron J. Beaton, Appellant, v Burton W. Jones,Respondent. |
—[*1] Rossi and Murnane, New York Mills (Vincent J. Rossi, Jr., of counsel), fordefendant-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Oneida County(Norman I. Siegel, A.J.), entered January 2, 2007 in a personal injury action. The order andjudgment granted defendant's motion for summary judgment dismissing the complaint.
It is hereby ordered that the order and judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedlysustained when the vehicle he was driving collided with a vehicle owned and operated bydefendant. Supreme Court properly granted defendant's motion for summary judgmentdismissing the complaint on the ground that plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d). We note at the outset that plaintiff has abandonedhis contention that he sustained a permanent loss of use, as set forth in his bill of particulars,inasmuch as he failed to address that category of serious injury in his brief on appeal (seeCiesinski v Town of Aurora, 202 AD2d 984 [1994]).
Contrary to the contention of plaintiff, we conclude that defendant met his burden byestablishing as a matter of law that plaintiff did not sustain a significant limitation of use orpermanent consequential limitation of use, two of the remaining three categories of serious injurythat plaintiff allegedly sustained in the accident. "For [those] two statutory categories, [the Courtof Appeals has] held that '[w]hether a limitation of use or function is "significant" or"consequential" (i.e., important . . .) relates to medical significance and involves acomparative determination of the degree or qualitative nature of an injury based on the normalfunction, purpose and use of the body part' " (Toure v Avis Rent A Car Sys., 98 NY2d345, 353 [2002]). In support of his motion, defendant submitted, inter alia, certified copies ofplaintiff's emergency room records and the affirmations of two medical experts, one of whomexamined plaintiff on behalf of defendant. Defendant thereby established that plaintiff sustainedonly a mild injury as a result of the accident and that there was no objective medical evidencethat plaintiff sustained a significant or permanent injury (see Parkhill v Cleary, 305 AD2d1088, 1088-1089 [2003]; Sewell v Kaplan, 298 AD2d 840 [2001]).[*2]In opposition to defendant's motion, plaintiff submittedthe affirmation of his treating neurosurgeon, who opined that plaintiff sustained "a head injury,loss of range of motion in the cervical spine, post-concussive syndrome, whiplash disorder and aC5-6 herniated disc." That neurosurgeon did not, however, provide a numeric percentage ofplaintiff's loss of range of motion or a qualitative assessment that "has an objective basis andcompares the plaintiff's limitations to the normal function, purpose and use of the affected bodyorgan, member, function or system" (Toure, 98 NY2d at 350). Plaintiff also submitted theaffirmation of a neurosurgeon who examined plaintiff at the request of his attorney. Thatneurosurgeon stated that his physical examination of plaintiff demonstrated that plaintiff hadsustained approximately 75% loss of range of motion of the extension of his cervical spine.While "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion canbe used to substantiate a claim of serious injury" (id.), here the neurosurgeon examinedplaintiff more than three years after the accident and did not relate the loss of extension to theherniated disc or any other objective finding (cf. Harris v Carella, 42 AD3d 915, 916-917 [2007]), nor did heexplain the absence of any such findings of restrictions in neck motion for 2½ years beforehis exam (see generally Guadalupe vBlondie Limo, Inc., 43 AD3d 669, 670 [2007]). Furthermore, the views of plaintiff'sexperts with respect to plaintiff's head pain, including one expert's diagnosis of "occipitalneuralgia," were based upon plaintiff's subjective complaints only, and thus were insufficient todefeat defendant's motion (see Jaromin vNorthrup, 39 AD3d 1264, 1265 [2007]; Kinchler v Cruz, 22 AD3d 808 [2005]). Also contrary to thecontention of plaintiff, he failed to raise an issue of fact whether his posttraumatic stress disorderis related to the accident, to defeat the motion (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
Defendant also met his burden with respect to the 90/180 category, the third category ofserious injury allegedly sustained by plaintiff. Defendant met his initial burden with respect tothat category, and plaintiff failed "to submit the requisite objective evidence of a 'medicallydetermined injury or impairment of a non-permanent nature' . . . and [failed] toestablish that the injury caused the alleged limitations on plaintiff's daily activities" (Calucci vBaker, 299 AD2d 897, 898 [2002]). Present—Martoche, J.P., Smith, Peradotto, Pineand Gorski, JJ.