| Shackett v Nappi |
| 2010 NY Slip Op 05839 [75 AD3d 709] |
| July 1, 2010 |
| Appellate Division, Third Department |
| Maxwell Shackett, Respondent, v George A. Nappi et al.,Appellants. |
—[*1] Pennock, Breedlove & Noll, L.L.P., Clifton Park (Sarah I. Goldman of counsel), forrespondent.
Spain, J. Appeal from an order of the Supreme Court (Devine, J.), entered September 9, 2009in Albany County, which, among other things, partially denied defendants' cross motion forsummary judgment.
Plaintiff commenced this action alleging that he sustained serious injuries as defined inInsurance Law § 5102 (d) as a result of a July 24, 2001 motor vehicle accident. Plaintiffmoved for summary judgment and defendants cross-moved for summary judgment dismissingthe complaint. Supreme Court partially granted plaintiff's motion for summary judgment, holdingthat plaintiff established, as a matter of law, that he sustained a serious injury under the90/180-day category of Insurance Law § 5102 (d), and partially granted defendants' crossmotion for summary judgment holding that the permanent loss of use claim should be dismissed.The court denied defendants' cross motion for summary judgment with respect to plaintiff'spermanent consequential limitation of use and significant limitation of use claims, leaving themintact. Only defendants appeal.
First, we are persuaded by defendants' argument—which plaintiff does not nowdirectly dispute—that plaintiff's permanent consequential limitation of use and significantlimitation of use claims should also have been dismissed. Defendants correctly point out that theopinion of neurologist Robert Van Uitert, on which plaintiff relies, is deficient as a matter of lawto establish these types of serious injury because his opinion was based on an examination thathad [*2]occurred over 3½ years prior to its writing (see Buster v Parker, 1 AD3d 659,660-661 [2003]; Weller v Munson, 309 AD2d 1098, 1099 [2003], lv dismissed anddenied 2 NY3d 782 [2004]). Indeed, although Van Uitert's affirmation arguably supports acervical injury resulting in loss of range of motion related to the July 2001 accident, he does notstate with specificity plaintiff's range of motion at the time of the writing of the affirmation.Further, Van Uitert's most recent medical records indicate that plaintiff had recovered full rangeof motion in his neck, thereby precluding a finding of permanent consequential limitation of useand/or significant limitation of use (seeWolff v Schweitzer, 56 AD3d 859, 861-862 [2008]; Pugh v DeSantis, 37 AD3d 1026, 1029 [2007]).
Turning to the 90/180-day category, we conclude that plaintiff was not entitled to summaryjudgment and, indeed, that summary judgment should have been awarded to defendants. Aserious injury under the 90/180-day category, is " 'establish[ed] through objective medicalevidence, [where] a nonpermanent, medically-determined injury . . . prevented[(the) plaintiff] from performing substantially all of [his or] her usual and customary dailyactivities for 90 of the first 180 days following the accident' " (Palmeri v Zurn, 55 AD3d 1017,1019 [2008], quoting Dongelewic vMarcus, 6 AD3d 943, 944 [2004]). " '[E]ven where there is objective medical proof,when additional contributory factors interrupt the chain of causation between the accident andclaimed injury—such as . . . a preexisting condition—summarydismissal of the complaint may be appropriate' " (Coston v McGray, 49 AD3d 934, 934 [2008], quoting Pommells v Perez, 4 NY3d 566,572 [2005]; cf. Wolff v Schweitzer, 56 AD3d at 861).
In support of the alleged 90/180-day injury, plaintiff relies on his medical records from VanUitert and neurologist John Bouillon, as well as his deposition transcript. Although the medicalrecords provide evidence of cervical injury causally related to the 2001 accident and demonstratethat Bouillon significantly restricted plaintiff's activities during the pertinent period following theaccident and found him to be totally disabled from work, plaintiff's proof fails to distinguishlimitations caused by the 2001 accident from previous limitations. Plaintiff had been injured in aprior automobile accident in 2000. Significantly, Bouillon placed the exact samerestrictions on plaintiff's activities following the 2000 accident as he did following the 2001accident, without any indication that plaintiff's condition had significantly improved between thetwo. Likewise, the record reflects that plaintiff was completely disabled from working prior tothe 2001 accident. Plaintiff's deposition transcript fails to remedy this defect as he does notdifferentiate the limitations he experienced following the 2001 accident from those heexperienced following the 2000 accident. We hold, therefore, that defendants established, as amatter of law, that plaintiff did not demonstrate on this record the existence of a 90/180-dayinjury attributable to the 2001 accident (see Howard v Espinosa, 70 AD3d 1091, 1093-1094 [2010]; Dean v Brown, 67 AD3d 1097,1098-1099 [2009]; Falkner v Hand,61 AD3d 1153, 1154-1155 [2009]).
Cardona, P.J., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is modified,on the law, with costs to defendants, by reversing so much thereof as granted plaintiff's motionfor summary judgment on the 90/180-day cause of action and as denied defendants' cross motionfor summary judgment dismissing the 90/180-day, permanent consequential limitation of use andsignificant limitation of use causes of action; plaintiff's motion denied in its entirety, defendants'cross motion granted in its entirety and complaint dismissed; and, as so modified, affirmed.