| Henry v Sorge |
| 2011 NY Slip Op 09226 [90 AD3d 1355] |
| December 22, 2011 |
| Appellate Division, Third Department |
| Tracy L. Henry, Appellant, v Robert Sorge et al.,Respondents. |
—[*1] Kaplan, Hanson, McCarthy, Adams, Finder & Fishbein, Albany (Paul G. Hanson of counsel),for respondents.
Rose, J. Appeal from an order of the Supreme Court (Meddaugh, J.), entered July 23, 2010 inSullivan County, which granted defendants' motion for summary judgment dismissing thecomplaint.
Plaintiff commenced this action alleging that, as the result of an April 2005 motor vehicleaccident, she suffered a serious injury to her cervical spine within the meaning of Insurance Law§ 5102 (d). After joinder of issue and discovery, defendants moved for summary judgmentdismissing the complaint. Supreme Court granted the motion and this appeal ensued.
Initially, defendants presented plaintiff's medical records and examination before trialtestimony, the report of an orthopedic surgeon who performed an independent medicalexamination and concluded that plaintiff's injuries had resolved, and the report of a radiologistwho reviewed an MRI of plaintiff's cervical spine conducted in August 2005 and concluded thatthere was no obvious abnormality. Plaintiff does not dispute that defendants thereby sustainedtheir burden on the motion for summary judgment. To then raise an issue of fact with respect tothe permanent consequential limitation or significant limitation of use categories, plaintiffopposed the motion with her chiropractor's report of September 2009. Based on an MRI, clinicalevaluation and digital motion X-ray test, all of which had been performed four years earlier in2005, the chiropractor opined that plaintiff sustained a serious injury because of a finding of disc[*2]dehydration at C5-6, "significant destabilization of hercervical spine as a result of disco/ligamentous complex failure at C1-2, C5-6 and C6-7" and"angular motion segment integrity change at C6 with a ratable whole body impairment of 25%."Plaintiff contends that this evidence rebutted defendants' prima facie case. We cannot agree.
The finding of disc dehydration and the alleged injury to plaintiff's ligaments are insufficientto establish serious injury in the absence of any objective evidence of any current, correspondinglimitations (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]; John v Engel, 2 AD3d 1027, 1029[2003]; June v Gonet, 298 AD2d 811, 813 [2002]). Also, plaintiff offered no objectivemedical evidence of any present limitation in her range of motion, as the range of motion testingrelied on by her chiropractor was performed in 2005, only days after the accident. Although thechiropractor's report is replete with diagnostic images, there is nothing in it to objectivelyindicate that the results remained valid four years later (see Blanchard v Wilcox, 283AD2d 821, 823 [2001]). Further, the conclusion of 25% "whole body impairment" ismeaningless in the absence of any specification of the impairment as related to the cervical spine(see Beaubrun v New York City Tr.Auth., 9 AD3d 258, 259 [2004]). In short, plaintiff failed to provide any current,objective medical evidence of a permanent or significant injury (see Dean v Ahn Ja Jin, 78 AD3d1297, 1299 [2010]; Wolff vSchweitzer, 56 AD3d 859, 861-682 [2008]; Pugh v DeSantis, 37 AD3d 1026, 1029 [2007]).
Finally, the record reveals that this accident occurred in April of plaintiff's senior year of highschool. She missed one week of school and two weeks of work, medical providers placed nosignificant restrictions on her activities during the first 180 days after the accident and she wasable to go to school, attend her senior prom and participate in a senior trip to an amusement park.Given the evidence that plaintiff was not prevented from performing substantially all of her usualactivities for 90 out of the first 180 days immediately following the accident, she has failed toraise a triable issue of fact with respect to that category of serious injury as well (see Houston v Hofmann, 75 AD3d1046, 1049 [2010]; Parks vMiclette, 41 AD3d 1107, 1111 [2007]; John v Engel, 2 AD3d at 1029-1030).
Mercure, A.P.J., Peters, Spain and Kavanagh, JJ., concur. Ordered that the order is affirmed,with costs.