| Sferra v McGregor |
| 2010 NY Slip Op 00444 [69 AD3d 1200] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Christina Sferra, Appellant, v Richard McGregor,Respondent. |
—[*1] Goldberg Segalla, L.L.P., Albany (Matthew S. Lerner of counsel), for respondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Caruso, J.), entered May 20, 2009in Schenectady County, which granted defendant's motion for summary judgment dismissing thecomplaint.
In June 2006, plaintiff was operating a motor vehicle at a low rate of speed in a shoppingcenter parking lot when she was hit on the rear passenger side door by defendant's vehicle,which, at the time, was traveling at an estimated speed of five miles per hour. Plaintiff was takento the emergency room of a local hospital complaining of neck pain, was treated and releasedand then reported to work where she worked her regular shift. The following week, she wastreated for headaches, as well as pain to her shoulder, upper back and neck, and was advised tosee a chiropractor and begin physical therapy. One month later, plaintiff, for the first time,complained of pain to her lower back. She continued to treat with her primary care physician andto receive chiropractic care, and eventually saw a neurologist in regard to her condition. Plaintiffsubsequently commenced this action and, following discovery, defendant moved for summaryjudgment dismissing the complaint alleging that plaintiff did not suffer a serious injury asdefined by Insurance Law § 5102 (d). Supreme Court granted defendant's motion,prompting this appeal.
Plaintiff claims that, as a result of this accident, she sustained injury to both the cervical andlumbar regions of her spine. Specifically, she claims to have suffered from "cervical and lumbarstrains, annular disruption of the L4/5 intervertebral disc, with degenerative disc disease andnon-compressive right paracentral-lateral and central disc herniations at both L4/5 and L5/S1,and C4/5 intervertebral disc bulge." These injuries, she claims, have resulted in a permanent,significant, and consequential loss of use and function of both her cervical and lumbar spine. Insupport of his motion for summary judgment, defendant submitted two affidavits from BryanBilfield, an orthopedic surgeon, who, after reviewing plaintiff's medical records and examiningher, concluded that no objective evidence existed establishing that plaintiff suffered an injurycaused by this motor vehicle accident. Bilfield concluded that plaintiff's complaints of pain inregard to her cervical spine were due to a preexisting condition that she had since 2001 andcontinued to plague her on the date of the accident. In this regard, he referred to the results of aradiograph exam taken immediately after the accident that showed "arthritic changes with noacute abnormality" in plaintiff's cervical spine, as well as an MRI taken two months later thatrevealed the existence of a "mild C4-5 disc bulge with no evidence of disc herniation, spinalcanal stenosis or foraminal narrowing." Bilfield also noted that plaintiff's limited range of motionwas consistent with her preexisting condition and that, while the accident may have temporarilyincreased the pain she had been experiencing as a result of this exacerbation, that increased painwas not permanent.
As for plaintiff's complaints of pain in her lower back, she points to an MRI performed inFebruary 2007, or eight months after the accident, as proof that the accident caused her seriousinjury. Specifically, plaintiff notes that this exam "showed a small posterior disc protrusion atL5-S1 with minimal impingement on the ventral surface of the thecal sac" as well as "a posteriorannular tear at L4-5." In response, Bilfield stated that since plaintiff was wearing a seat belt atthe time of the accident, there would not have been a significant flexion of the lower spine thatwould establish a relation between the findings of the MRI and the automobile accident. He alsonoted that plaintiff did not complain of pain in her lower back until weeks after the accident andthat the annular tear noted in the MRI at L4/5 could have been "caused by normal stresses over[]time on [the] lumbar spine with the aging process." In short, Bilfield stated that the objectivefindings noted in the MRI examination of plaintiff's lumbar spine were not, in his opinion,related to the accident.
Bilfield's findings satisfied defendant's burden of establishing that plaintiff did not suffer aserious injury as a result of this accident (see Toure v Avis Rent A Car Sys., 98 NY2d345, 352 [2002]; Wolff vSchweitzer, 56 AD3d 859, 860-861 [2008]; Palmeri v Zurn, 55 AD3d 1017, 1018 [2008]), and requiredplaintiff to provide competent medical evidence that "address[ed] defendant['s] claimed lack ofcausation' " (Falkner v Hand, 61AD3d 1153, 1154 [2009], quoting Pommells v Perez, 4 NY3d 566, 580 [2005]). In that regard,plaintiff offered the opinion of her treating chiropractor to the effect that plaintiff suffered aserious injury and, in making that finding, relied on the results of the February 2007 MRI toconclude that plaintiff's loss of range of motion in the cervical spine area and the herniationnoted at L4/S1 were caused by the accident.[FN*]However, in offering this opinion, plaintiff's chiropractor did not account for plaintiff's extensivehistory of neck pain and medical treatment during the five-year period immediately precedingthe accident or the fact that this condition had not resolved as of the date of the accident (see Coston v McGray, 49 AD3d934, 935 [2008]). Moreover, while a disc herniation resulting in a quantifiable loss of one'srange of motion can amount to a serious injury (see Dean v Brown, 67 AD3d 1097, 1098 [2009]; Lee v Laird, 66 AD3d 1302, 1304[2009]), plaintiff's expert failed to explain why, if this condition was caused by the impact,plaintiff did not experience any lower back pain in the weeks immediately after the accident. Inaddition, plaintiff's chiropractor did not take issue with Bilfield's observation that, since plaintiffwas wearing a seat belt at the time of the accident, there would have been no significant flexionin her lumbar spine that would have caused a disc herniation and that the annular tear noted inthe MRI could have been caused by factors not related to the accident. Simply stated, plaintiff'schiropractor did not, in offering his opinion, provide a meaningful response to the argumentsmade by defendant's expert regarding the cause of plaintiff's pain and, as such, his affidavit didnot serve to create questions of fact regarding causation.
Plaintiff also argues that Bilfield's affidavit should be rejected because he did not have all ofplaintiff's medical records when he rendered his opinion regarding the source of her injuries.Even if Bilfield did not have all of plaintiff's medical records when he gave his initial affidavit,he did provide a second affidavit to the effect that he had since reviewed the remaining medicalrecords and reaffirmed his opinion that plaintiff did not suffer a serious injury as a result of thisaccident. Given plaintiff's failure to present competent evidence that creates a factual issue as tothe seriousness of the injuries that she is alleged to have sustained in this accident, SupremeCourt properly granted defendant's motion for summary judgment dismissing the complaint.
Mercure, J.P., Peters, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: We note that while plaintiff'sbill of particulars alleged that she was prevented from performing all of her customary dailyactivities for 90 of the first 180 days following the accident (see Insurance Law §5102 [d]), she made no claim for loss of earnings and did not pursue this claim in her brief. As aresult, we deem the issue to be abandoned (see Brandt-Miller v McArdle, 21 AD3d 1152, 1153 n 2 [2005]; Durham v New York E. Travel, 2AD3d 1113, 1114 n [2003]).