| Tracy v Tracy |
| 2010 NY Slip Op 00452 [69 AD3d 1218] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Monica Z. Tracy, Appellant, v Meghan A. Tracy,Respondent. |
—[*1] Melvin & Melvin, P.L.L.C., Syracuse (Susan E. Otto of counsel), for respondent.
Peters, J.P. Appeal from an order of the Supreme Court (Tait, J.), entered November 21,2008 in Tioga County, which granted defendant's motion for summary judgment dismissing thecomplaint.
In May 2005, plaintiff was a passenger in an automobile driven by defendant when it wasstruck from behind by a tractor-trailer. Plaintiff commenced this action claiming serious injurywithin the meaning of Insurance Law § 5102 (d). Following joinder of issue, defendantmoved for summary judgment dismissing the complaint on the grounds that plaintiff did notsuffer a causally-related serious injury and lack of personal jurisdiction. In response, plaintiffasserted that, as a result of the accident, she has sustained a permanent moderate loss of use ofher lumbar spine. Supreme Court granted defendant's motion on the ground that plaintiff failed torebut defendant's prima facie showing that she did not suffer a causally-related serious injury,prompting this appeal.
As a threshold matter, we reject defendant's claim of a lack of personal jurisdiction due toimproper service of the summons and complaint. We are satisfied by our review of the recordthat defendant was properly served through the personal service of her uncle at her "dwellingplace or usual place of abode" (CPLR 308 [2]). In support of her remaining contention forsummary judgment, defendant bore the burden of establishing that plaintiff did not suffer acausally-related serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352[2002]; Hildenbrand v Chin, 52AD3d 1164, 1165 [2008]). To that end, defendant submitted the [*2]affirmation of physician David Hootnick, who conducted anindependent medical examination of plaintiff, and his report based on the examination and hisreview of plaintiff's medical records. The report detailed plaintiff's complaints of lower back andleg pain in the years prior to the accident, as well as evidence of degenerative disease of thelumbar spine unrelated to the accident, and noted that plaintiff's complaint of neck painfollowing the accident was anatomically distinct from her subsequent lumbar spine condition.Hootnick further noted that an MRI taken in 2006 revealed no evidence of disc herniation,fracture or dislocation, only progressive degenerative disease of the lumbar spine, and thatplaintiff's 2006 surgery to her lumbar spine was brought on by a longstanding chronic conditionof stenosis, unrelated to the 2005 accident. We find this evidence sufficient to shift the burden toplaintiff to "set forth competent medical evidence based upon objective medical findings andtests to support [her] claim of serious injury and to connect the condition to the accident"(Blanchard v Wilcox, 283 AD2d 821, 822 [2001]).
"Under the permanent loss of use category, a plaintiff must establish that the loss of use istotal" (Saleh v Bryant, 49 AD3d991, 992 [2008] [citation omitted]; see Oberly v Bangs Ambulance, 96 NY2d 295,299 [2001]). Plaintiff proffered the affidavit of Matthew Bennett, her treating physician since2007. Bennett did not, however, opine that plaintiff's loss of use is total, but instead concludedonly that she "has a permanent moderate loss of use of her lumbar spine." To the extent thatplaintiff claims that she has suffered a permanent consequential limitation in the use of herlumbar spine, in order to establish such a condition "the medical evidence submitted by plaintiffmust contain objective, quantitative evidence with respect to diminished range of motion or aqualitative assessment comparing plaintiff's present limitations to the normal function, purposeand use of the affected body organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029[2003]; accord Pugh v DeSantis, 37AD3d 1026, 1029 [2007]). In his affidavit, Bennett opined that the force of the accidentcaused plaintiff's preexisting degenerative disease of the lumbar spine to become symptomatic,requiring surgery and leaving plaintiff with a permanent moderate loss of function of the lumbarspine. Bennett did not explain how the accident aggravated plaintiff's condition nor did he setforth any qualitative or quantitative evidence of a limitation in plaintiff's range of motion.Inasmuch as plaintiff has failed to submit any objective evidence sufficient to raise a triable issueof fact regarding the existence of a serious injury pursuant to Insurance Law § 5102 (d),we conclude that the complaint was properly dismissed.
Rose, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed, withcosts.