| Tandoi v Clarke |
| 2010 NY Slip Op 06137 [75 AD3d 896] |
| July 15, 2010 |
| Appellate Division, Third Department |
| Mary Tandoi, Appellant, v Elizabeth Clarke,Respondent. |
—[*1] Egger & Leegant, Rochester (Jan P. Egger of counsel), for respondent.
Cardona, P.J. Appeal (transferred to this Court by order of the Appellate Division, FourthDepartment) from an order of the Supreme Court (Galloway, J.), entered November 17, 2009 inMonroe County, which, among other things, denied plaintiff's motion for summary judgment onthe issue of serious injury.
Plaintiff commenced this action for injuries she allegedly sustained in September 2006 whenher motor vehicle was struck from behind by a car driven by defendant. Following joinder ofissue and discovery, plaintiff moved for summary judgment on the issues of liability and whethershe suffered a serious injury within the meaning of Insurance Law § 5102 (d). Althoughthe liability portion of the motion was granted, Supreme Court denied the motion as to seriousinjury, prompting plaintiff's appeal.
Plaintiff contends that Supreme Court erred in denying her motion for summary judgment onthe issue of whether she suffered a serious injury under the "significant limitation of use"category within the meaning of Insurance Law § 5102 (d). We do not agree. "As theproponent of the summary judgment motion, plaintiff bore the burden of establishing, as a matterof law, that she suffered a serious injury pursuant to [that statute] and that the injury was causallyrelated to the accident" (Autiello vCummins, 66 AD3d 1072, 1073 [2009] [citations omitted]; see McHugh v Marfoglia, 65 AD3d828, 828-829 [2009]; LaForte vTiedemann, 41 AD3d 1191, 1192 [2007]; Ellithorpe v Marion, 34 AD3d 1195, 1196 [2006]). "[I]n order toestablish . . . a [*2]significant limitation of use, themedical evidence submitted by plaintiff must contain objective, quantitative evidence withrespect to diminished range of motion or a qualitative assessment comparing plaintiff'spresent limitations to the normal function, purpose and use of the affected body organ, member,function or system" (Dean vBrown, 67 AD3d 1097, 1098 [2009] [emphasis added; internal quotation marks andcitation omitted]; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]; Hildenbrand v Chin, 52 AD3d1164, 1165 [2008]; Pianka vPereira, 24 AD3d 1084, 1085 [2005]).
Here, contrary to Supreme Court's finding, we conclude that plaintiff succeeded in settingforth a prima facie showing that she sustained a serious injury pursuant to the above standard.Notably, plaintiff submitted excerpts from her deposition testimony indicating that, prior to thesubject accident, she had no problems with her neck that required medical treatment. Further,plaintiff established the qualitative nature of her limitations by submitting affidavits from herphysiatrist, Clifford Ameduri, and her neurosurgeon, Seth Zeidman, who, based upon objectivemedical evidence, including their physical examinations and treatment of plaintiff and review oftwo MRI scans and reports, dated February 14, 2007 and November 6, 2007, respectively,opined to a reasonable degree of medical certainty that plaintiff suffered a disc herniation atC6-7, which was the permanent and direct result of the motor vehicle accident (see Toure vAvis Rent A Car Sys., 98 NY2d at 353; Durham v New York E. Travel, 2 AD3d 1113, 1114[2003]).[FN1]
Although proof of a herniated disc alone is not sufficient to demonstrate a serious injury (see Pommells v Perez, 4 NY3d566, 574 [2005]; Ellithorpe v Marion, 34 AD3d at 1196-1197), here, Zeidman alsostated that, during his physical examinations of plaintiff, she exhibited "weakness in her leftupper extremity biceps and triceps and numbness in the C6 and C7 distributions of the cervicalspine." Significantly, Zeidman's conclusions were echoed by Ameduri, who further detailedplaintiff's significant limitations of "cervical range of motion with respect to extension, flexionand rotation." Zeidman opined that the herniation causes plaintiff "to suffer from persistent painin her neck and left arm, numbness and tingling in the fingers of her left hand, toes of her leftfoot and left arm and neck weakness" and recommended surgical intervention. Zeidman furthersufficiently described the qualitative nature of plaintiff's limitations by opining that her painlimited her ability to do normal, daily activities such as "housework, yardwork, lifting, using acomputer, watching TV, placing items on overhead shelves and working as an intensive care unitnurse" (see Toure v Avis Rent A Car Sys., 98 NY2d at 353; Autiello v Cummins,66 AD3d at 1073-1074; McHugh v Marfoglia, 65 AD3d at [*3]829; LaForte v Tiedemann, 41 AD3d at 1192), andattributed these limitations to the "natural and expected medical consequence of the injuries shesuffered as a result of the motor vehicle accident" (see Toure v Avis Rent A Car Sys., 98NY2d at 353).
Given plaintiff's initial showing, the burden shifted to defendant to raise "a triable issue offact . . . through the submission of competent medical evidence" (Autiello vCummins, 66 AD3d at 1074). In that regard, defendant submitted an affirmed medicalopinion summary, and an addendum thereto, of orthopedist Robert Molinari,[FN2]who stated therein that he reviewed plaintiff's medical records, imaging studies and radiographs,and opined that plaintiff suffered from disc degeneration at C4-5, C5-6, C6-7, which preexistedthe motor vehicle accident. Notably, Molinari indicated that plaintiff's radiographs revealed "noevidence of significant injury or fracture[,] subluxation or instability" to her cervical spineresulting from the accident. While it is true that Molinari also acknowledged that the subjectaccident "may have exacerbated her degenerative changes and symptomotology," we cannotagree with plaintiff that this language was sufficient to justify summary judgment in her favor(see e.g. LaForte v Tiedemann, 41 AD3d at 1192) given Molinari's further specificstatements that any aggravation of a preexisting condition would be mild and temporary (seeMc Gough v Truco Engine, 309 AD2d 1298, 1299 [2003]). In other words, since none ofplaintiff's experts diagnosed her with the aggravation of a preexisting condition, the proof in thatregard was exclusively from defendant's expert, who specifically qualified his opinion byindicating that any limitation plaintiff sustained was not "significant" as required by theapplicable category of Insurance Law § 5102 (d). Accordingly, we find that defendantraised a triable issue of fact sufficient to defeat plaintiff's motion for summary judgment on theissue of serious injury.
Mercure, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Plaintiff further maintains thather burden was met on the motion because she established the quantitative nature of herlimitations (see Toure v Avis Rent A Car Sys., 98 NY2d at 350) through Ameduri'sassigning of specific percentages detailing plaintiff's reduced range of motion, accompanied by acomparison of those findings to normal ranges of motion, which were corroborated by theindependent objective medical evidence of the MRI scans (see Durham v New York E.Travel, 2 AD3d at 1115). However, we note that Ameduri did not indicate for purposes ofthis motion what specific objective tests were employed to produce such percentages (see Rivera v Benaroti, 29 AD3d340, 342 [2006]; see also Toure v Avis Rent A Car Sys., 98 NY2d at 350).
Footnote 2: We note that while plaintiffcorrectly points out that Molinari's addendum was not in admissible form (see Daus v Cassavaugh, 17 AD3d837, 838 [2005]), since she raised this argument for the first time on appeal it is unpreservedfor appellate review (see Shinn vCatanzaro, 1 AD3d 195, 198 [2003]).