| Antonio v Gear Trans Corp. |
| 2009 NY Slip Op 06379 [65 AD3d 869] |
| September 8, 2009 |
| Appellate Division, First Department |
| Sarah Antonio et al., Appellants, v Gear Trans Corp. et al.,Respondents, et al., Defendants. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, New York County (Kenneth L. Thompson, Jr., J.), entered April 3,2008, which granted the motion of defendants Gear Trans Corp. and Niamke Agniman forsummary judgment dismissing the complaint on the ground that plaintiffs did not sustain seriousinjuries within the meaning of Insurance Law § 5102 (d), affirmed, without costs.
Defendants met their burden of establishing prima facie that plaintiffs did not sustainpermanent consequential or significant limitations by submitting the affirmations of severaldoctors who, upon examining plaintiffs and performing objective tests, concluded that plaintiffs'injuries were resolved and, in plaintiff Ventura's case, that her right ankle injury was caused by aprior car accident (see e.g. Charley vGoss, 54 AD3d 569, 570-571 [2008], affd 12 NY3d 750 [2009]; Figueroa v Castillo, 34 AD3d 353[2006]). Defendants also established that plaintiffs had no 90/180-day injury through plaintiffs'deposition testimony indicating that Antonio returned to school a week after the accident andwas confined to home for one week, and that Ventura was confined to bed and home for onlytwo weeks (see Lloyd v Green, 45AD3d 373 [2007]; Guadalupe vBlondie Limo, Inc., 43 AD3d 669 [2007]).
Plaintiffs failed to raise an issue of fact with respect to their 90/180-day claims. Theirtreating physician's statements that they were "medically disabled" throughout the time theywere under her care and that she advised them to, among other things, refrain from any work orother activities that might cause them discomfort or pain are too general to raise the inferencethat plaintiffs were unable to perform their usual and customary activities during the statutorilyrequired time period or that their confinement to bed and home was medically required (see Gorden v Tibulcio, 50 AD3d460, 463 [2008]).
Plaintiffs failed to raise a triable issue of fact whether Ventura sustained a significant orpermanent consequential limitation to her cervical spine or right ankle, since their treatingphysician did not perform any tests on those body parts during her most recent examination ofVentura (see Thompson v Abbasi,15 AD3d 95, 97 [2005]). Further, since the physician failed to [*2]review Ventura's medical records concerning her prior right ankleinjury, there is no objective basis by which to attribute any new injuries to the later accident(Gorden, 50 AD3d at 464). Plaintiffs also failed to raise an issue of fact regarding asignificant or consequential limitation of use of Antonio's right knee since their physician failedto quantify her initial findings, identify any objective tests and compare her findings to normalranges, and failed to perform any tests on Antonio's right knee in her last two examinations (see Lattan v Gretz Tr. Inc., 55 AD3d449, 449-450 [2008]).
As to plaintiffs' alleged additional spinal injuries, their physician's conclusory findings onher September 24, 2007 examination of Ventura's lumbar spine and Antonio's cervical andlumbar spine, using an inclinometer, that Antonio had "significant limitations when comparing[her] cervical and lumbar spine to what would be considered normal" and that Ventura had"permanent consequential limitation of use of her neck, back and right ankle when compared towhat would be considered normal," were insufficient to raise an issue of fact as to serious injury.Moreover, the physician's conclusion, arrived at seven years later, that those injuries, namelybulging discs, were causally related to plaintiffs' May 14, 2000 accident and were permanent,consequential and significant failed to offer any quantitative assessment of the range of motionin terms of numeric percentage, or of how the accident reduced the functioning of plaintiffs'spines below the level of function that existed immediately before the accident (see Suarez v Abe, 4 AD3d 288[2004]).
With respect to the seven-year gap in plaintiffs' respective treatment, aside from the fact thatthese paragraphs of the physician's affidavits are identical except for a reference to the rightankle in the affidavit concerning Ventura and to the right knee in the affidavit concerningAntonio, the physician's conclusory opinion that, after five or six months of "active physicaltherapy," plaintiffs "reached a plateau" and physical therapy "was discontinued on [her]recommendation because [she] felt [plaintiffs] had reached maximum medical improvement withtherapy" is insufficient under the circumstances to explain this gap (see Eichinger v Jone Cab Corp., 55AD3d 364, 364-365 [2008] [14-month gap in treatment]; see also Franchini v Palmieri, 1 NY3d 536, 537 [2003] [plaintiff'sexperts provided no "foundation or objective medical basis supporting the conclusions theyreached"]). Concur—Gonzalez, P.J., Andrias and Buckley, JJ.
Acosta, J., dissents in part in a memorandum as follows: I dissent only to the extent that Iwould deny defendants' motion with respect to the alleged injuries to plaintiff Ventura's lumbarspine and plaintiff Antonio's lumbar and cervical spine.
Contrary to the majority's holding, plaintiffs raised an issue of fact with respect to Ventura'salleged lumbar spine injury. Their physician's conclusion that Ventura's injuries, i.e., bulginglumbar discs, were causally related to the accident and were permanent, consequential andsignificant was supported by objective evidence, namely, the MRI and CT scan reports and thepositive straight leg raising tests (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 355[2002]; Brown v Achy, 9 AD3d30, 32 [2004]). While the physician did not ascribe a specific percentage to the loss of rangeof motion in Ventura's lumbar spine, she sufficiently described Ventura's limitations qualitativelyon the basis of the lumbar spine's normal function, in particular, by correlating Ventura's bulgingdiscs with her inability to perform such normal daily [*3]tasks assitting, standing, walking and driving for long periods of time and such household chores aslaundry, cleaning floors, and carrying groceries (see Toure at 355).
Plaintiffs also raised an issue of fact with respect to Antonio's alleged lumbar and cervicalspine injuries. Their physician's conclusion that those injuries, namely bulging discs, werecausally related to the accident and were permanent, consequential and significant was supportedby objective medical evidence, including the MRI reports, the positive straight leg raising tests,and her observations of muscle spasms during her examination of Antonio's cervical spine(see Toure, 98 NY2d at 353, 355; Brown, 9 AD3d at 32). As in Ventura's case,the physician did not quantify the loss or limitation in Antonio's lumbar and cervical spineduring her most recent examination, but she sufficiently described Antonio's limitationsqualitatively "based on the normal function, purpose and use of the body part[s]" (seeToure, 98 NY2d at 353, 355).
With respect to the seven-year gap in treatment, the physician's explanation that plaintiffshad reached maximum medical improvement with physical therapy and that she had advisedthem to continue home therapy was sufficient to raise an issue of fact (see Pommells v Perez, 4 NY3d566, 576-577 [2005] [doctor's explanation, that once he determined further medical therapywould "be only palliative in nature," he terminated treatment and instructed plaintiff to continueexercises at home, was sufficient. "A plaintiff need not incur the additional expense ofconsultation, treatment or therapy, merely to establish the seriousness or causal relation of hisinjury."]).