| Falkner v Hand |
| 2009 NY Slip Op 02705 [61 AD3d 1153] |
| April 9, 2009 |
| Appellate Division, Third Department |
| Betty Falkner et al., Appellants-Respondents, v Donald G. Hand,Respondent-Appellant, and April Tiano, Respondent. (Action No. 1.) Betty Falkner et al.,Appellants, v Rachael E. Falkner, Respondent. (Action No.2.) |
—[*1] Thuillez, Ford, Gold, Butler & Young, L.L.P., Albany (William C. Firth of counsel), forrespondent-appellant. Flink & Smith, L.L.C., Latham (Jay A. Smith of counsel), for April Tiano, respondent. Burke, Scolamiero, Mortati & Hurd, L.L.P., Albany (Jeffrey E. Hurd of counsel), for RachelE. Falkner, respondent.
Rose, J. Cross appeals from an order of the Supreme Court (Lalor, J.), entered April 9, 2008in Greene County, which granted motions by defendants Rachel E. Falkner and April Tiano forsummary judgment dismissing the complaint against them and partially granted defendantDonald G. Hand's motion for summary judgment dismissing the complaint against him.
Plaintiff Betty Falkner (hereinafter plaintiff) and her husband, derivatively, commenced twoseparate actions to recover for the serious injuries she allegedly sustained in three motor vehicleaccidents over a two-year period. The other drivers of the motor vehicles involved in theaccidents—defendants April Tiano (first accident), Donald G. Hand (second accident) andRachel E. Falkner (third accident)—separately moved for summary judgment on thegrounds that plaintiff did not sustain a qualifying serious injury (see Insurance Law§ 5102 [d]; § 5104 [a]). In response, plaintiff asserted that, as a result of each ofthese accidents, she suffered injuries to her spine which qualified as serious injuries in thesignificant limitation of use and 90/180-day categories. Supreme Court granted Tiano's andFalkner's motions in full, but only partially granted Hand's motion, finding a question of fact asto the 90/180-day category. Plaintiffs and Hand now appeal.
Defendants met their initial burden of establishing entitlement to judgment as a matter of lawby presenting evidence that the condition of plaintiff's spine was the result of a preexistingdegenerative disease rather than the motor vehicle accidents. Plaintiff's medical records and herown deposition testimony establish that she had a history of significant neck and lower backproblems before the accidents. Also, after conducting an independent medical examination ofplaintiff and reviewing her medical records, a neurologist concluded that she had degenerativechanges in her cervical and lumbar spine that created "a long history of axial musculoskeletalpain that clearly predates the accidents." He opined that her current complaints are notattributable to any of the accidents.
"[W]ith [this] persuasive evidence that plaintiff's alleged pain and injuries were related to apreexisting condition, plaintiff[s] had the burden to come forward with evidence addressingdefendant[s'] claimed lack of causation" (Pommells v Perez, 4 NY3d 566, 580 [2005]). They were requiredto offer objective medical evidence distinguishing plaintiff's preexisting condition from theinjuries claimed to have been caused by each accident (see Wolff v Schweitzer, 56 AD3d 859, 862 [2008]; Coston v McGray, 49 AD3d 934,935 [2008]; Dabiere v Yager, 297 AD2d 831, 832 [2002], lv denied 99 NY2d503 [2002]).
Due to the failure of plaintiffs' experts to fully consider and distinguish plaintiff's conditionprior to each accident from her condition after that accident, as well as plaintiffs' failure tosubmit objective medical evidence of an exacerbation caused by any of the accidents, SupremeCourt properly granted summary judgment to Tiano and Falkner (see Pommells v Perez,4 NY3d at 574-575, 580; Wolff v Schweitzer, 56 AD3d at 862; McNamara v Wood, 19 AD3d921, 922-923 [2005]; Franchini v Palmieri, 307 AD2d 1056, 1057-1058 [2003],affd 1 NY3d 536 [2003]). Since this deficiency of evidence as to causation alsoprecludes recovery under the 90/180-day category for injuries allegedly sustained in the secondaccident (see Daisernia v Thomas,12 AD3d 998, 999 [2004]; Dabiere v Yager, 297 AD2d at 832-833; Monk vDupuis, 287 AD2d 187, 191 [2001]; Blanchard v Wilcox, 283 AD2d 821, 824[2001]), Hand's motion should have been granted in its entirety.[*2]
Peters, J.P., Lahtinen, Kane and Stein, JJ., concur.Ordered that the order is modified, on the law, with one bill of costs to defendants, by reversingso much thereof as partially denied defendant Donald G. Hand's motion for summary judgment;said motion granted in its entirety, summary judgment awarded to said defendant and complaintdismissed against him; and, as so modified, affirmed.