| Palmeri v Zurn |
| 2008 NY Slip Op 07834 [55 AD3d 1017] |
| October 16, 2008 |
| Appellate Division, Third Department |
| Charlotte Palmeri et al., Appellants, v Michael Zurn et al.,Respondents. |
—[*1] Hanson & Fishbein, Albany (Paul G. Hanson of counsel), for respondents.
Carpinello, J. Appeal from an order of the Supreme Court (McNamara, J.), entered September27, 2007 in Albany County, which granted defendants' motion for summary judgment dismissing thecomplaint.
Plaintiffs commenced this action seeking damages for physical and psychological injuries to plaintiffCharlotte Palmeri (hereinafter plaintiff) as a result of a December 28, 2002 motor vehicle accident. Atissue is an order of Supreme Court granting defendants' motion for summary judgment dismissing thecomplaint on the ground that plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d). Upon our review of the record, we find that the motion was properly granted.We therefore affirm.
The categories of serious injury alleged before Supreme Court were limited to significant limitationof use of a body function or system and a medically determined nonpermanent injury which preventedher from performing substantially all of her customary daily activities for at least 90 of the first 180 daysimmediately following the accident.[FN*]She [*2]specifically alleges that she suffers from "legamintos[sic] and muscular strain" of her lower back, right shoulder and neck, as well as posttraumaticstress disorder. According to plaintiff, despite physical therapy, chiropractic treatments, painmanagement treatments and medication, she has been unable to get relief from all pain, particularly inher back. She further alleges that she has been restricted in her vocation as a musician, in theperformance of certain daily chores and in her enjoyment of certain recreational activities. She furtheralleges problems with sleep and depression.
As to plaintiff's alleged physical injuries, defendants, in support of summary judgment, submitted thesworn report of an orthopedic surgeon who performed an independent physical examination of her, aswell as reviewed certain pleadings and medical records. This physician's examination of plaintiffdetected no objective abnormal findings. For example, his report reveals normal findings upon cervicaland lumbosacral spine examinations (with no tenderness or evidence of spasms in either region orsacroiliac pain with palpation), no swelling, redness or tenderness to either shoulder and normal rangeof motion tests. He specifically notes that there was no evidence of a ligament or muscle strain inplaintiff's lower back or on the right side of her shoulder, neck, pelvis or buttocks.
To the extent that plaintiff made "multiple complaints" of pain in "multiple body areas" during theexamination, this physician found such complaints were inconsistent with his "non physiologic findings."Indeed, he found "no objective causal relationship" between her physical complaints and the accident,finding instead that her complaints were subjective. He specifically opined that no objective medicalevidence existed to support the claim of significant limitation of any body function or system or amedically determined injury of a nonpermanent nature which prevented her from performingsubstantially all of her usual daily activities for not less than 90 days during the 180 days immediatelyfollowing the accident. With respect to plaintiff's alleged psychological injuries, defendants submitted anaffidavit of a licensed clinical psychologist who performed an independent psychological examination ofher and also reviewed her medical records. This psychologist opined that plaintiff suffers only from a"mild pain disorder" and does not suffer from either posttraumatic stress disorder or major depression(compare Brandt-Miller v McArdle, 21AD3d 1152, 1154 [2005]). In our view, defendants' submissions were sufficient to make a primafacie showing that plaintiff did not sustain a serious injury (see e.g. Alteri v Benson, 50 AD3d 1274 [2008]; compareBrandt-Miller v McArdle, supra).
Plaintiffs, in turn, failed in their shifted burden of raising a triable issue of fact by coming forwardwith competent medical evidence based upon objective medical findings and tests (see Toure vAvis Rent A Car Sys., 98 NY2d 345 [2002]). To establish the significant limitation category ofserious injury, "the medical evidence must provide either a quantitative or qualitative assessment todifferentiate serious injuries from mild or moderate ones" (Scott v Aponte, 49 AD3d 1131, 1134 [2008] [internal quotation marksand citation omitted]). Here, plaintiffs' proof fell short of demonstrating that any injury—physicalor psychological—constituted a significant limitation. In particular, no physician quantified anyalleged physical and/or psychological loss or limitation or provided a qualitative comparison of plaintiff'scondition to normal function (see Toure v Avis Rent A Car Sys., 98 NY2d at 350-351; see e.g. Pianka v Pereira, 24 AD3d1084, 1085-1086 [2005]; Brandt-Miller v McArdle, 21 AD3d at [*3]1155; Clementsv Lasher, 15 AD3d 712, 713 [2005]; Burford v Fabrizio, 8 AD3d 784, 785 [2004]; Kristel v Mitchell,270 AD2d 598, 599 [2000]). Likewise, with respect to the 90/180-day category, we are satisfied thatplaintiffs failed "to establish, through objective medical evidence, a nonpermanent, medically-determinedinjury which prevented [plaintiff] from performing substantially all of her usual and customary dailyactivities for 90 of the first 180 days following the accident" (Dongelewic v Marcus, 6 AD3d 943, 944 [2004]; see Clements vLasher, 15 AD3d at 713-714; Burford v Fabrizio, 8 AD3d at 786). This being the case,summary judgment in defendants' favor was in all respects appropriate.
Cardona, P.J., Mercure, Peters and Kavanagh, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: To the extent that plaintiffs argue onappeal that the record supports the permanent consequential limitation category of serious injury, theirfailure to assert this claim before Supreme Court precludes our consideration of it (see Mrozinski vSt. John, 304 AD2d 950, 951 [2003]).