| Vargas v Tomorrow Travel & Tour, Inc. |
| 2010 NY Slip Op 05323 [74 AD3d 1626] |
| June 17, 2010 |
| Appellate Division, Third Department |
| Yojaira Vargas, Appellant, v Tomorrow Travel & Tour, Inc.,Doing Business as Dragon Coach, Respondent. |
—[*1] Saretsky, Katz, Dranoff & Glass, L.L.P., New York City (Robert B. Weissman of counsel),for respondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Teresi, J.), entered April 20, 2009in Albany County, which granted defendant's motion for summary judgment dismissing thecomplaint.
In December 2004, plaintiff, after being involved in an accident while a passenger on a busowned by defendant, was treated and released from a hospital after she complained of, amongother things, pain in her neck and back. Almost three years later, plaintiff commenced thisaction. Defendant subsequently moved for summary judgment dismissing her complaint, arguingthat plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d) andher complaints of pain were actually caused by injuries that she sustained in a car accident thathad occurred 18 months earlier in May 2003. Supreme Court granted defendant's motion,prompting this appeal.
In support of its motion, defendant submitted reports prepared by an orthopedic surgeon, aneurosurgeon and a neuropsychologist, all of whom examined plaintiff and her medical recordsand concluded that they could not find a connection between her complaints of pain and theinjuries that she claims to have sustained in this accident (see Howard v Espinosa, 70AD3d [*2]1091, 1092-1093 [2010]; Tracy v Tracy, 69 AD3d 1218,1219 [2010]; Sferra v McGregor,69 AD3d 1200, 1202 [2010]). Each physician concluded that no objective evidence wasdetected that documented the existence of injuries caused by this accident as opposed to thosenoted in physical examinations performed upon plaintiff after the May 2003 motor vehicleaccident. In addition, each expert concluded, as did some of plaintiff's treating physicians, thatthe findings noted during the examinations were in many ways incompatible with her subjectivecomplaints of pain and that these complaints were in large measure attributable to a state ofdepression that plaintiff acknowledged experiencing prior to this accident.
This evidence served to shift the burden to plaintiff and required her, in opposing defendant'smotion, to present " 'competent medical evidence based upon objective medical findings andtests to support [her] claim of serious injury and to connect the condition to the accident' " (Wolff v Schweitzer, 56 AD3d859, 861 [2008], quoting Blanchard v Wilcox, 283 AD2d 821, 822 [2001]; see Nowak v Breen, 55 AD3d1186, 1187 [2008]). In that regard, plaintiff claims that the injuries she sustained in thisaccident have caused (1) a permanent consequential limitation in her ability to use a bodily organor member, (2) a significant limitation in her use of a bodily function or system and (3) animpairment of a nonpermanent nature that prevented her from performing substantially all of thematerial acts constituting her usual and customary daily activities for at least 90 of the 180 daysimmediately following the accident (see Insurance Law § 5102 [d]).
As for her claim under the 90/180-day category, it has been established that plaintiff wasdisabled after her accident in May 2003 and, by her own admission, remained unable to performmany of her daily activities up until the time that this accident occurred. Moreover, the evidenceshe submits in support of this claim primarily involve subjective complaints of pain andself-imposed restrictions on her daily activities that must be supported by medical evidence toestablish the existence of a serious injury (see Hildenbrand v Chin, 52 AD3d 1164, 1166 [2008]; Tuna v Babendererde, 32 AD3d574, 577 [2006]; Buster vParker, 1 AD3d 659, 661 [2003]). Here, no such evidence has been presented, andplaintiff's cause of action under this category was properly dismissed.
As for plaintiff's claim that she sustained a permanent consequential limitation of the use of abodily organ or member, or a significant limitation of the use of a bodily function or system,objective evidence must exist that establishes that, as a result of this accident, she experienced adiminished range of motion as shown by " 'a qualitative assessment comparing [her] presentlimitations to the normal function, purpose and use of the affected body organ, member, functionor system' " (Dean v Brown, 67AD3d 1097, 1098 [2009], quoting John v Engel, 2 AD3d 1027, 1029 [2003]). In addition, suchevidence must include " 'a quantitative or qualitative assessment to differentiate serious injuriesfrom mild or moderate ones' " (Palmeriv Zurn, 55 AD3d 1017, 1019 [2008], quoting Scott v Aponte, 49 AD3d 1131, 1134 [2008]; accord Clements v Lasher, 15 AD3d712, 713 [2005]). Here, plaintiff submitted her own affidavit, the affidavits of her treatingneuropsychologist Maria Deinzer Lifrak and chiropractor Kevin Cuttler, medical recordsregarding treatments she has received, and reports of two independent medical examinationsperformed by Kenneth Shapiro, a board certified physiatrist, and chiropractor DomenickRizzuto.
We begin our evaluation of plaintiff's evidence by noting that her complaints of pain made inconnection with this accident are almost identical to those that she made in a bill of [*3]particulars filed in connection with a lawsuit she commenced inregard to the May 2003 accident. Moreover, neither Lifrak nor Cuttler quantified, with objectivemedical evidence, any comparative change or diminution in plaintiff's ability to function fromher condition as it existed prior to and after this accident. Parenthetically, both Lifrak and Cuttlersubmitted affidavits in the prior litigation attesting to the fact that plaintiff sustained injuries inthe May 2003 accident that are strikingly similar to the injuries they now seek to attribute to thisaccident. As for the reports prepared by Shapiro and Rizzuto, neither reviewed any of plaintiff'smedical records concerning treatment she had received prior to this accident and, moreimportantly, during the period immediately after the May 2003 accident. Therefore, in our view,plaintiff has failed to establish the existence of a genuine issue of fact as to whether shesustained a serious injury as a result of this accident and Supreme Court properly granteddefendant's motion for summary judgment.
Mercure, J.P., Peters, Spain and Rose, JJ., concur. Ordered that the order is affirmed, withcosts.