| Glynn v Hopkins |
| 2008 NY Slip Op 08267 [55 AD3d 498] |
| October 30, 2008 |
| Appellate Division, First Department |
| Dena S. Glynn et al., Appellants, v George Hopkins,Respondent. |
—[*1] Koors & Jednak, Bronx (Sally Ann Zullo of counsel), for respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered November24, 2006, which granted defendant's motion for summary judgment dismissing the complaint,reversed, on the law, without costs, the motion denied and the complaint reinstated.
Defendant failed to make a prima facie showing that plaintiff Dena S. Glynn did not sustain aserious injury within the meaning of Insurance Law § 5102 (d). Defendant's ownexamining neurologist reported finding limitations in plaintiff's ability to use the cervical area ofher spine, which he quantified and causally related to the accident (see generally Toure v AvisRent A Car Sys., 98 NY2d 345, 350 [2002]; see Korpalski v Lau, 17 AD3d 536, 537[2005]). In addition, defendant's examining neurologist failed to set forth the objective testsperformed supporting his claims that there was no limitation of range of motion of the lumbarspine (see 98 NY2d at 351; Lamb v Rajinder, 51 AD3d 430 [2008]). Also,defendant's radiologist's statement that "there are underlying degenerative changes suggestingthat [a small central disk herniation at C4-C5] may be chronic in nature" is too equivocal tosatisfy defendant's prima facie burden to show that such herniation was not caused by a traumaticevent. In view of the foregoing, we need not consider plaintiff's opposition to the motion (seeCaballero v Fev Taxi Corp., 49 AD3d 387 [2008]). Concur—Mazzarelli, J.P., Acostaand Renwick, JJ.
Catterson and McGuire, JJ., dissent in a memorandum by McGuire, J., as follows: PlaintiffDena Glynn sustained personal injuries when the motor vehicle she was driving was struck by avehicle driven by defendant. Plaintiff commenced this negligence action, predicated on multipleserious injury categories (Insurance Law § 5102 [d]), against defendant to recover damagesfor disc injuries she allegedly sustained as a result of that accident.
Defendant moved for summary judgment dismissing the complaint, arguing, among otherthings, that plaintiff's injuries were not caused by the car accident. In support of his motion,defendant submitted plaintiff's deposition testimony in which she stated that she had sustained[*2]neck injuries in a 1993 car accident. Notably, plaintifftestified that she sustained a herniated disk at C5-C6 as a result of that prior accident. Plaintiffalso injured her left knee in a 2001 slip and fall incident. Additionally, defendant also submittedthe affirmation of a neurologist who noted both of the prior accidents, and a radiologist whoreviewed MRI films taken of plaintiff's spine approximately four months after the accidentinvolving defendant's vehicle. The radiologist noted that plaintiff had a herniated disk at C4-C5and a bulging disk at C5-C6, and opined that:
"There is evidence of disc desiccation at both the C4-C5 and C5-C6 levels. Disc desiccationindicates that the disc has dried out and lost its normal water content. A very small discherniation is present at the C4-C5 level. The association of this disc herniation with underlyingdisc desiccation suggests that it is probably chronic in nature. Acute disc herniations usuallyoccur in well-hydrated discs. It is the central, gelatinous portion of the disc which insinuatesitself through the outer fibers of the disc to result in an acute disc herniation. Once this central,gelatinous portion dries up, the incidence of acute disc herniation rapidly diminishes.
"There are classic degenerative changes present at the C5-C6 level. There is disc spacenarrowing and disc bulging. Disc bulging is unrelated to trauma. Disc bulging occurs as the outerfibers of the disc . . . lose their normal elasticity. This allows the central, moregelatinous portion of the disc to bulge circumferentially. This is the commencement ofdegenerative disc disease. Disc space narrowing occurs when there is loss of the internalarchitecture of the disc allowing it to collapse upon itself. There are anterior and posteriorosteophytes. Osteophytes represent bony spurs which form off of the vertebral bodies. Thisrepresents actual bone formation and is chronic in nature. This is an attempt by the spine tostabilize itself in the setting of the degenerative process.
"In my opinion, [plaintiff] does have a small central disc herniation at the C4-C5 level. Thereare underlying degenerative changes suggesting that this may be chronic in nature. Classicdegenerative changes unrelated to trauma are present at the C5-C6 level."
In opposition, plaintiff submitted the affirmation of her treating neurosurgeon. This physiciannoted that plaintiff "advised me that she had a history of some occasional neck pain andapproximately 10 years ago was diagnosed with a herniated disc at C5-C6." The physician foundthat plaintiff had several bulging discs and opined that her spinal injuries were "substantiallycaused" by the motor vehicle accident involving defendant.
Supreme Court granted defendant's motion and dismissed the complaint. The majorityreverses and reinstates the complaint, finding that defendant did not meet his initial burden on hismotion. Since I disagree with that conclusion and believe that Supreme Court correctly grantedthe motion, I respectfully dissent.
Defendant submitted evidence, including plaintiff's own deposition testimony, that she hadsustained a neck injury to her C5-C6 disc several years before the accident giving rise to thisaction, and plaintiff now seeks to recover damages for disc injuries. Evidence of plaintiff's priorcervical spine injury coupled with the affirmation of defendant's radiologist, who opined thatplaintiff's cervical spine injuries are degenerative, was sufficient to establish defendant's primafacie showing of entitlement to judgment as a matter of law (see Becerril v Sol CabCorp., 50 AD3d 261, 261 [2008] ["Defendants established a prima facie entitlement tosummary judgment [*3]by submitting, inter alia, the affirmedreport of a radiologist who opined that plaintiff's MRI films revealed degenerative disc disease,and no evidence of post-traumatic injury to the disc structures"]; see also Ronda v FriendlyBaptist Church, 52 AD3d 440, 441 [2008] ["Defendants carried their initial burden ofshowing that plaintiff's shoulder tendon tear and other injuries were not proximately caused bythe subject accident, by submitting reports of plaintiff's previous line-of-duty injuries and theopinion of their examining orthopedist, based in part on the MRI report describing arthriticchanges in the shoulder joint as degenerative, that the shoulder injury was among plaintiff'spreexisting conditions" (citation omitted)]; Figueroa v Castillo, 34 AD3d 353, 353-354[2006] ["Defendants' submissions included excerpts from plaintiff's deposition, as well asmedical reports by plaintiff's doctors, and described another automobile accident one monthbefore the subject accident, wherein she sustained similar knee and back injuries, and a fall onthe same knee subsequent to the latest accident. These established additional contributing factors,interrupting the chain of causation between the subject accident and claimed injury, therebyshifting the burden of proof to plaintiff"]).
I disagree with the majority's conclusion that defendant's radiologist's opinions wereequivocal. With respect to the C5-C6 disc, the expert clearly and unequivocally stated that"[c]lassic degenerative changes unrelated to trauma are present at the C5-C6 level." With respectto the C4-C5 disc, the radiologist asserted that "[t]he association of th[e] [C4-C5] disc herniationwith underlying disc desiccation suggests that it is probably chronic in nature," and that "[t]hereare underlying degenerative changes [to that disc] suggesting that th[e] [injury] may be chronic innature." While the radiologist did not state that her opinion in this regard was to a reasonabledegree of medical certainty, her opinion has probative value nonetheless. The key inquiry ingauging whether an expert has expressed sufficient certainty in her opinion for it to haveprobative value is "whether it is 'reasonably apparent' that 'the doctor intends to signify aprobability supported by some rational basis' " (Matott v Ward, 48 NY2d 455, 461[1979], quoting Matter of Miller v National Cabinet Co., 8 NY2d 277, 282 [1960]).Based on the quoted language above from the radiologist's affirmation, it is reasonably apparentthat she intended to signify that it was more likely than not that the C4-C5 disc injury was adegenerative condition. Unquestionably, moreover, she outlined her reasons for that conclusion,thereby providing a rational basis for it (see McGrath v Irving, 24 AD2d 236, 238 [1965],lv denied 17 NY2d 419 [1966] ["courts have come to permit . . . words suchas 'possible' and 'probable' by the medical profession in expressing an opinion, providing, ofcourse, there is a reasonable basis" for the opinion]).
In opposition, plaintiff failed to raise a triable issue of fact since her expert failed to addresshow her "current medical problems, in light of her past medical history, are causally related to thesubject accident" (Style v Joseph, 32 AD3d 212, 214 [2006]). The most glaringdeficiency in plaintiff's opposition is that her expert did not discuss the prior cervical spine injuryat all except to note that she had sustained it (see Becerril, 50 AD3d at 261-262["plaintiff conceded at his deposition that he sustained injuries to his neck and back in a prioraccident, and an MRI conducted shortly after the subject accident showed degenerative discdisease. In these circumstances, it was incumbent upon plaintiff to present proof addressing theasserted lack of causation"]; Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007]["Once a defendant has presented evidence of a preexisting injury, even in the form of anadmission made at a deposition, it is incumbent upon the plaintiff to present proof to meet thedefendant's asserted [*4]lack of causation" (citation omitted)]).
Accordingly, I would affirm the order.