| Weaver v Town of Penfield |
| 2009 NY Slip Op 09900 [68 AD3d 1782] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Gerald F. Weaver et al., Respondents, v Town of Penfield,Appellant, et al., Defendant. |
—[*1] Cellino & Barnes, P.C., Rochester (Scott K. Rohring of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.),entered December 18, 2008 in a personal injury action. The order, insofar as appealed from,granted that part of plaintiffs' motion for partial summary judgment with respect to thenegligence of defendant Town of Penfield and denied the cross motion of defendant Town ofPenfield for summary judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the cross motion of defendant Town of Penfield is granted, the complaintagainst that defendant is dismissed and that part of the motion for partial summary judgmentwith respect to the negligence of that defendant is dismissed.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedlysustained by Gerald F. Weaver (plaintiff), a paramedic supervisor employed by MonroeAmbulance, when an ambulance owned by defendant Penfield Volunteer Emergency AmbulanceService, Inc. collided with a vehicle driven by an employee of the Town of Penfield (defendant).Plaintiffs moved for partial summary judgment both on liability and on the ground that plaintiffsustained a serious injury to his left shoulder under the permanent consequential limitation of useand significant limitation of use categories set forth in Insurance Law § 5102 (d).Defendant cross-moved for summary judgment dismissing the complaint against it on the groundthat plaintiff did not sustain a serious injury under those two categories, the only two alleged byplaintiffs. As relevant on appeal, Supreme Court granted that part of plaintiffs' motion forsummary judgment with respect to negligence against defendant and denied defendant's crossmotion, determining that there are triable issues of fact whether plaintiff sustained a seriousinjury under the significant limitation of use and the 90/180-day categories. We note at the outsetthat the court erred in determining sua sponte that there are issues of fact with respect to the90/180-day category, inasmuch as plaintiffs did not allege in their complaint, as amplified by thebill of particulars and supplemental bill of particulars, that plaintiff had sustained such an injury,nor in any event did they assert that he had sustained such an injury in their motion papers. Wefurther note that only defendant has taken an appeal, and thus the sole issue before us withrespect to serious injury concerns the viability of the significant limitation of use category ofserious injury, the court having determined that there were [*2]issues of fact only with respect to that category and the 90/180-daycategory.
We conclude that the court should have granted the cross motion and dismissed thecomplaint against defendant, inasmuch as defendant established as a matter of law that plaintiffdid not sustain a serious injury under the significant limitation of use category of serious injury(see Harris v Carella, 42 AD3d915, 916 [2007]), and plaintiffs failed to raise a triable issue of fact with respect thereto(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In order tosatisfy the serious injury threshold pursuant to Insurance Law § 5102 (d), a plaintiff mustpresent "objective proof" of an injury; subjective complaints of pain alone are insufficient(Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). "In addition, [an] expertmust provide either 'a numeric percentage of a plaintiff's loss of range of motion' or a'qualitative assessment of a plaintiff's condition . . . , provided that theevaluation has an objective basis and compares the plaintiff's limitations to the normal function,purpose and use of the affected body organ, member, function or system' " (Leahey v Fitzgerald, 1 AD3d 924,925-926 [2003], quoting Toure, 98 NY2d at 350).
In support of the cross motion, defendant submitted the affirmed report of an orthopedicsurgeon who examined plaintiff at its request. The surgeon reviewed plaintiff's medical recordsand concluded that there were no objective findings of any injury caused by the motor vehicleaccident at issue. Defendant also submitted the report of a physician concluding that an X ray ofplaintiff's left shoulder taken a few days after the accident did not show a fracture or dislocationand that the shoulder was "[u]nremarkable." In addition, an MRI of plaintiff's left shoulder takena few months after the accident showed no evidence that plaintiff sustained a partial or fullrotator cuff tear or a labral tear. We thus conclude that defendant established that plaintiffsustained only a mild shoulder "strain" as a result of the accident and that there was no objectivemedical evidence that he sustained a significant injury to his left shoulder (see Herbst vMarshall [appeal No. 2], 49 AD3d 1194, 1195 [2008]; Harris, 42 AD3d at 916; see also Delfino v Luzon, 60 AD3d196, 197 [2009]; see generally Toure, 98 NY2d 353).
In support of their motion and in opposition to the cross motion, plaintiffs failed to submitany objective medical evidence that plaintiff sustained a serious injury to his left shoulder(see generally Toure, 98 NY2d at 350; Barnes v Estes, 46 AD3d 1441 [2007]). Plaintiffs submitted areport from a workers' compensation evaluation conducted more than one year after the accident,which states that plaintiff sustained an "[i]mpingement" of his left shoulder and that he lacked 20degrees of abduction and 30 degrees of flexion in that shoulder. Although an expert'squantitative assessment of the degree of a plaintiff's loss of range of motion may be used tosubstantiate a claim of serious injury (see Toure, 98 NY2d at 350), here the workers'compensation report failed to relate the range of motion losses to any objective findings of injuryto plaintiff's left shoulder (see Beaton vJones, 50 AD3d 1500, 1502 [2008]). Indeed, that report notes that the MRI of plaintiff'sleft shoulder contained no evidence of a tear or other acute injury. Moreover, the report does notrecite the tests used to ascertain the degree of plaintiff's loss of range of motion (seeDelfino, 60 AD3d at 198; cf. Harris, 42 AD3d at 917), and it also does not accountfor the absence of range of motion restrictions in plaintiff's left shoulder immediately followingthe accident (see Beaton, 50 AD3d at 1502; Guadalupe v Blondie Limo, Inc., 43 AD3d 669 [2007]).
Although the record contains some objective evidence of an injury to plaintiff's cervicalspine, we note that the complaint, as amplified by the bill of particulars and supplemental bill ofparticulars, does not allege that plaintiff sustained a serious injury to his cervical spine as a resultof the accident.
Finally, in view of our determination that plaintiff did not sustain a serious injury, we neednot address defendant's contention that the court erred in granting that part of plaintiffs' motionwith respect to defendant's negligence. We therefore dismiss that part of plaintiff's motion asmoot. Present—Hurlbutt, J.P., Fahey, Peradotto, Green and Gorski, JJ.