| Foley v Cunzio |
| 2010 NY Slip Op 05309 [74 AD3d 1603] |
| June 17, 2010 |
| Appellate Division, Third Department |
| Carol Foley, Appellant, v Anthony Cunzio,Respondent. |
—[*1] Kaplan, Hanson, McCarthy, Adams, Finder & Fishbein, Albany (Paul G. Hanson ofcounsel), for respondent.
Stein, J. Appeal from an order of the Supreme Court (Platkin, J.), entered June 30, 2009 inUlster County, which granted defendant's motion for summary judgment dismissing thecomplaint.
In July 2005, plaintiff's vehicle was proceeding through an intersection when it was struckon the driver's side by defendant's vehicle. Plaintiff subsequently commenced this action,claiming serious injury within the meaning of Insurance Law § 5102 (d). Specifically,plaintiff claimed impairment to and loss of function of her spinal system and permanent injury toher cervical spine, exacerbated neck pain, lower back pain and migraine headaches. Followingjoinder of issue, defendant moved for summary judgment dismissing the complaint on theground that plaintiff did not suffer a serious injury. Supreme Court granted defendant's motion,prompting this appeal.[FN*][*2]
As the proponent of the summary judgment motion,defendant had the initial burden of submitting evidence establishing that plaintiff did not suffer acausally related serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352[2002]; Nowak v Breen, 55 AD3d1186, 1187 [2008]). In support of his motion, defendant submitted, among other things,plaintiff's medical records and the report of Arnold Goran, a neurosurgeon who performed anindependent medical examination of plaintiff in 2007. After examining plaintiff and reviewing a2006 MRI of her lumbar spine, Goran concluded there was no indication of a herniated disc, andthat the lower back pain reported by plaintiff was related to degenerative disc disease. Goran alsoconcluded that plaintiff had excellent movement of her lumbar spine and was not in need oftreatment in that area. Further, regarding whether the injury to the lumbar spine was causallyrelated to the 2005 accident, plaintiff's medical records reveal that she complained of lower backpain to her physical therapist and was treated for such pain following an automobile accident in2002. Contrary to plaintiff's contention, we find that this proof was sufficient to shift the burdento plaintiff 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 [2005] accident"(Blanchard v Wilcox, 283 AD2d 821, 822 [2001]; accord Wolff v Schweitzer, 56 AD3d 859, 861 [2008]).
In light of evidence in the record that she complained about lower back pain following her2002 accident, plaintiff was required to "come forward with evidence addressing defendant'sclaimed lack of causation" (Pommells vPerez, 4 NY3d 566, 580 [2005]; see Coston v McGray, 49 AD3d 934, 935 [2008]). As such, it wasnecessary for plaintiff's expert to "adequately address [her] preexisting back condition" (Franchini v Palmieri, 1 NY3d536, 537 [2003]) and degenerative disc disease (see Falkner v Hand, 61 AD3d 1153, 1154-1155 [2009]). To thatend, plaintiff submitted the affidavit of Loren Rosenthal, her treating neurologist since 2006.Based upon the results of an EMG and nerve conduction studies performed on plaintiff,Rosenthal opined that plaintiff suffers from lumbar radiculopathy causally related to the 2005accident, which resulted in a significant limitation of the use of her lumbar spine. Rosenthalpremised his conclusion that this condition is causally related to the 2005 accident on a lack ofevidence of any significant symptoms of lower back pain before 2005 and the fact that plaintiff'sinjury was consistent with being hit on her left side. However, the first basis for this conclusionis directly contradicted by the record evidence of plaintiff's prior complaint of lower back painsubsequent to the 2002 automobile accident, followed by numerous references in plaintiff'smedical records of treatment to her back. In addition, Rosenthal's opinion as to causationcompletely fails to address the indication of degenerative disc disease apparent in the 2006 MRI,without any evidence of herniation. Nor did Rosenthal explain his findings in April 2007 thatplaintiff had "full flexion and extension of the lumbar spine" and, in August 2007, that she had"good lumbar flexion and extension." As Rosenthal's affidavit does not adequately addressplaintiff's preexisting condition and degenerative disc disease and provides no objective basis forconcluding that plaintiff's condition is causally related to the 2005 accident, plaintiff has failed toraise an issue of fact sufficient to withstand summary judgment (see Franchini vPalmieri, 1 NY3d at 537; Falkner v Hand, 61 AD3d at 1155; Wolff vSchweitzer, 56 AD3d at 862-863; Coston v McGray, 49 AD3d at 936).
Cardona, P.J., Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: We note that, inasmuch asplaintiff only argues on appeal that she suffered a causally related serious injury to her lumbarspine within the meaning of Insurance Law § 5102 (d), her claims of impairment or loss ofuse of her neck and cervical spine are deemed abandoned (see Flater v Brennan, 173AD2d 945, 946 [1991]).