| MacMillan v Cleveland |
| 2011 NY Slip Op 01765 [82 AD3d 1388] |
| March 10, 2011 |
| Appellate Division, Third Department |
| Elizabeth MacMillan et al., Appellants, v Josie A.Cleveland, Respondent. |
—[*1] Kaplan, Hanson, McCarthy, Adams, Finder & Fishbein, Albany (Gerald D. D'Amelia Jr. ofcounsel), for respondent.
Garry, J. Appeal from an order of the Supreme Court (Devine, J.), entered November 6, 2009in Schoharie County, which granted defendant's motion for summary judgment dismissing thecomplaint.
In October 2005, plaintiff Elizabeth MacMillan (hereinafter plaintiff) was operating a motorvehicle when it was struck by defendant's vehicle. Plaintiffs subsequently commenced this action,claiming serious injury to plaintiff's back and neck within the meaning of Insurance Law §5102 (d). Following joinder of issue, defendant moved for summary judgment dismissing thecomplaint. Supreme Court granted the motion, prompting this appeal. Finding plaintiffs' evidencesufficient to present a factual dispute relative to the significant limitation of use and the90/180-day categories, we modify the order accordingly.[FN1][*2]
Defendant bore the initial burden to establish on a primafacie basis that plaintiff did not suffer a causally-related serious injury (see Toure v Avis RentA Car Sys., 98 NY2d 345, 352 [2002]; Wolff v Schweitzer, 56 AD3d 859, 860 [2008]). To that end,defendant proffered plaintiff's medical records, which reflect a long history of back pain,including prior injuries in February, April and July 2005. This evidence of a preexistingcondition shifted the burden to plaintiffs to " 'set forth competent medical evidence based uponobjective medical findings and tests to support [the] claim of serious injury and to connect thecondition to the accident' " (Tracy vTracy, 69 AD3d 1218, 1219 [2010], quoting Blanchard v Wilcox, 283 AD2d821, 822 [2001]; see Coston vMcGray, 49 AD3d 934, 935 [2008]). Plaintiffs were thus required to provide objectivemedical proof and quantitative or qualitative evidence establishing plaintiff's claimed conditionand distinguishing her preexisting conditions from the claimed injury (see Pommells v Perez, 4 NY3d566, 571-572, 577-578 [2005]; Falkner v Hand, 61 AD3d 1153, 1154-1155 [2009]).
Plaintiff testified that, at the time of the subject collision, she was employed at anafter-school program and volunteered as an emergency medical technician, despite her priorinjuries and preexisting physical conditions. She was being treated for these preexistingconditions and injuries by her physician, Ze'ev Weitz. By affidavit, Weitz testified that in thecourse of his treatment rendered following the collision, he found plaintiff disabled from herwork and customary activities for stated periods that ultimately exceeded four months, at whichtime he released her to return to light duty work. Weitz described specific limitations of use andmotion in plaintiff's arm and averred that she "was restricted in all phases of motion in her neckand back." He further compared diagnostic MRI testing obtained before and after the subjectcollision and opined that this comparison revealed "a marked difference in deterioration anddegree of injury of her lower back from L1 to L5." In sum, he concluded that the automobileaccident was the cause of plaintiff's disabling condition and that she suffered a significantlimitation of use and motion of her neck and lower back, as established by clinical examinationand the objective proof of aggravation revealed by the MRI testing.
Notably, Weitz's opinion was based on his treatment and clinical observations made bothbefore and after the subject collision. Nonetheless, his affidavit is insufficient, standing alone, tomeet the applicable legal standards, as he failed to specify the percentage of the restrictions inmotion or to set forth the underlying clinical tests supporting his stated observations (seeToure v Avis Rent A Car Sys., 98 NY2d at 350; Tuna v Babendererde, 32 AD3d 574, 577 [2006]). Plaintiffs madefurther submissions, however, which we find adequate to cure these deficiencies. A chiropractorwho treated plaintiff for her preexisting condition prior to the collision and continuing thereafterstated by affidavit that plaintiff's symptoms "were substantially aggravated by the motor vehicleaccident," and provided a recent assessment of plaintiff's cervical and lumbar limitations byspecified degree, opining that the limitations were significant. Further, plaintiff's no-fault carrierhad a medical evaluation performed by orthopedic surgeon Lawrence Schulman. Schulmanperformed a detailed analysis of plaintiff's prior history and opined that the subject collision"aggravated and contributed to her condition." An additional orthopedic evaluation wasperformed by Shashi Patel, upon request of the workers' compensation carrier relative to one ofplaintiff's prior injuries. Among other stated findings, Patel noted that his examination revealed"moderate muscle spasm" in plaintiff's paravertebral [*3]musculature (see Weaver v Howard, 206 AD2d 793, 793[1994]).[FN2]Patel opined that plaintiff's preexisting degenerative condition was aggravated by a priorwork-related injury, and then reaggravated by the subject collision. He apportioned 50% of hercontinuing "moderate to marked disability referable to the lumbar spine" to each of these twooccurrences.
Schulman and Patel each prepared detailed reports setting forth the findings of theirrespective evaluations, and each attributed disability to the collision after specifically consideringthe effects of plaintiff's preexisting condition. Notably, these physicians were retained for thisvery purpose by their respective insurance carriers, as the carriers would not be responsible forpayment without a finding of causal relationship following analysis of the various relevantfactors affecting plaintiff's physical condition. Further, defendant did not present any medicalexpert opinion refuting the evaluators' conclusions, but established her prima facie case solely byintroducing the records of plaintiff's prior injuries and conditions. While evidence of this natureis sufficient to meet a party's initial burden of proof (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Tuna vBabendererde, 32 AD3d at 575), the opinions of Schulman and Patel regarding causationthus stand unrefuted by medical testimony in this record. Viewing this evidence in the light mostfavorable to plaintiffs (see Hildenbrandv Chin, 52 AD3d 1164, 1166 [2008]), we find the proof sufficient to meet their burdento demonstrate the existence of triable issues of fact as to the significant limitation of usecategory of serious injury.
As to the 90/180-day category, plaintiffs were required to submit objective evidence of a"medically determined injury or impairment of a non-permanent nature which prevent[ed][plaintiff] from performing substantially all of the material acts which constitute [her] usual andcustomary daily activities" during at least 90 of the 180 days immediately after the accident(Insurance Law § 5102 [d]; seeNowak v Breen, 55 AD3d 1186, 1188 [2008]). Triable issues of fact as to this categoryare established by the previously-discussed medical evidence, as well as Weitz's affidavittestimony that plaintiff was not capable of performing her normal and customary activities forfour months after the October 2005 accident, and plaintiff's affidavit describing her ongoinginability to drive and engage in her previous household activities (see Secore v Allen, 27 AD3d 825,828 [2006]; Monk v Dupuis, 287 AD2d 187, 191-192 [2001]).
Kavanagh and Egan Jr., JJ., concur.
Mercure, J.P. (dissenting). We respectfully dissent. The majority properly acknowledges thatto satisfy the [*4]statutory serious injury threshold—undereither the significant limitation of use or 90/180-day category—a plaintiff must submitobjective medical evidence of injury (see e.g. Toure v Avis Rent A Car Sys., 98 NY2d345, 350 [2002]). The majority fails to recognize, however, that "an expert's opinion unsupportedby an objective basis [is] wholly speculative" and, thus, "frustrat[es] the legislative intent of theNo-Fault Law to eliminate statutorily-insignificant injuries or frivolous claims" (id. at351; see Pommells v Perez, 4 NY3d566, 571-572 [2005]). The undated affidavit of plaintiff Elizabeth MacMillan's (hereinafterplaintiff) treating physician, Ze'ev Weitz, does not meet the required standard.
Weitz did not identify any diagnostic techniques that he used in making his determinationregarding plaintiff's arm that were not dependent on her subjective complaints of pain (see Tuna v Babendererde, 32 AD3d574, 577 [2006]; Burford vFabrizio, 8 AD3d 784, 785 [2004]). Nor did Weitz's affidavit specify the nature of thesoft-tissue injury—a herniated disc—that plaintiffs now claim to have been shownby objective evidence, i.e., a post-accident MRI upon which Weitz relied in diagnosing her withan injury. "Proof of a herniated disc, without additional objective medical evidenceestablishing that the accident resulted in significant physical limitations, is not alone sufficient toestablish a serious injury" (Pommells v Perez, 4 NY3d at 574 [emphasis added]). Whilewe have held that " 'an expert's designation of a numeric percentage of a plaintiff's loss of rangeof motion' " that is corroborated by an MRI showing a soft tissue injury may constitute objectivemedical evidence (Durham v New YorkE. Travel, 2 AD3d 1113, 1114-1115 [2003], quoting Toure v Avis Rent A CarSys., 98 NY2d at 350), the expert must explain how the soft tissue injury shown on the MRI"relate[s] to [the] plaintiff's particular physical complaints" (June v Gonet, 298 AD2d811, 812 [2002]; see Howard vEspinosa, 70 AD3d 1091, 1093-1094 [2010]; Burford v Fabrizio, 8 AD3d at786).
Weitz's affidavit is patently deficient not only because he failed to specify percentages oflimitation and underlying clinical tests or explain the degree to which the October 2005 accidentaggravated plaintiff's numerous preexisting conditions, as the majority concludes. The additionalcritical defects in Weitz's affidavit are the failure to relate the MRI to plaintiff's physicalcomplaints, or to specify any contemporaneous degree of limitation—quantitative orqualitative—related to her neck or back (see Howard v Espinosa, 70 AD3d at1093-1094; Pianka v Pereira, 24AD3d 1084, 1085-1086 [2005]; June v Gonet, 298 AD2d at 812-813). Contrary tothe majority's view, the medical reports of two other physicians and the affidavit of plaintiff'schiropractor do not cure these deficiencies in Weitz's affidavit. Neither the physicians nor thechiropractor reviewed the results of the November 2005 MRI—the objective evidenceupon which plaintiffs purport to rely. The physician's reports and chiropractor's affidavit cannot,therefore, relate the results of the MRI to plaintiff's symptoms and, for that reason alone, theseadditional submissions cannot be said to cure the deficiency in Weitz's affidavit (see Burfordv Fabrizio, 8 AD3d at 786; June v Gonet, 298 AD2d at 812-813).[FN*]
In any event, the limitations in plaintiff's range of motion detailed by her chiropractor [*5]and the two physicians are not sufficiently contemporaneous withthe accident. Rather, those limitations reflect plaintiff's condition nearly four years, two years,and a year and half after the accident, respectively, and following another motor vehicle accidentaffecting her neck and back. Finally, while one physician, Shashi Patel, indicated that he detecteda back spasm, Supreme Court properly rejected this evidence as lacking in probative value. Themajority's conclusion that this finding of a spasm constitutes objective medical evidence despitethe absence of any indication of the manner in which the spasm was ascertained is contrary toCourt of Appeals precedent. That Court has held that a spasm is not considered objectiveevidence of an injury absent further evidence that the spasm was "objectively ascertained," suchas evidence of the test performed to induce the spasm (Toure v Avis Rent A Car Sys., 98NY2d at 357).
In short, plaintiffs failed to raise a triable issue of fact regarding the existence of a causallyrelated serious injury. Accordingly, we would hold that Supreme Court properly granteddefendant's motion for summary judgment dismissing the complaint.
Malone Jr., J., concurs. Ordered that the order is modified, on the law, with costs toplaintiffs, by reversing so much thereof as granted defendant's motion for summary judgmentdismissing that part of the complaint as alleged that plaintiff Elizabeth MacMillan suffered aserious injury in the significant limitation of use and 90/180-day categories; motion denied tothat extent; and, as so modified, affirmed.
Footnote 1: Plaintiffs' evidence did notreveal a total loss of use, as required to establish a claim under the permanent loss of usecategory (see Oberly v Bangs Ambulance, 96 NY2d 295, 297 [2001]; Tracy v Tracy, 69 AD3d 1218,1219 [2010]), and the claim of permanent consequential loss of use was not presented in thecomplaint or bill of particulars (see Hallv Barth, 36 AD3d 1050, 1051 n [2007]).
Footnote 2: This finding was stated in theportion of the report describing the particulars of the clinical physical examination. In contrast tothe dissent, we perceive no basis for a negative inference arising from the failure of this physicianto present greater detail describing his precise clinical methodology; whether this finding wasmade upon palpation or visual observation, it was within the realm of his expertise, and does notrequire further development at the summary judgment stage (see Hall v Barth, 36 AD3d 1050, 1051 [2007]).
Footnote *: Although one physician,Lawrence Schulman, mentioned the existence of the November 2005 MRI, he did not relate itsresults to plaintiff's particular physical complaints, as required, or even indicate that he reviewedthe MRI results; rather, Schulman noted that the MRIs that he reviewed related to a subsequentSeptember 2006 accident.