| Mahar v Bartnick |
| 2012 NY Slip Op 00277 [91 AD3d 1163] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| Melissa M. Mahar, Appellant, v Laura J. Bartnick,Respondent. |
—[*1] Law Offices of Epstein & Rayhill, Latham (Jeffrey T. Culkin of counsel), forrespondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Nolan Jr., J.), entered August 27,2010 in Saratoga County, which granted defendant's motion for summary judgment dismissingthe complaint.
On December 29, 2007, plaintiff was briefly hospitalized after being involved in a two-carmotor vehicle accident with defendant in the Town of Waterford, Saratoga County. Becauseplaintiff had a laceration on the back of her head and had lost consciousness after the accident, aCT scan was performed, which failed to reveal evidence of any acute injury. After receivingsutures for the head laceration, plaintiff was released from the hospital. Plaintiff commenced thisaction against defendant for the injuries she had sustained as a result of this accident. SupremeCourt subsequently granted defendant's motion for summary judgment dismissing plaintiff'scomplaint on the ground that plaintiff had not sustained a serious injury (see InsuranceLaw § 5102 [d]). Plaintiff now appeals.
Initially, plaintiff argues that questions of fact exist regarding whether she sustained a seriousinjury based on evidence submitted to Supreme Court in connection with defendant's motion. Insupport of that motion, defendant relied upon plaintiff's medical records, the results of an MRI,records of plaintiff's physical therapy sessions, deposition testimony and reports regardingplaintiff's condition prepared by an orthopedic surgeon retained by her carrier to [*2]examine her (see Clark v Basco, 83 AD3d 1136, 1137 [2011]; Dean v Ahn Ja Jin, 78 AD3d 1297,1298 [2010]). Specifically, this evidence established that shortly after the accident, plaintiff wastreated by a physician, Asim Yousuf, for headaches, neck pain and bruises to her knees. Yousufinitially told plaintiff not to work for two weeks, and prescribed physical therapy for her neckpain. After plaintiff participated in a four-month physical therapy regimen, her physical therapistreported, in April 2008, that while plaintiff continued to have some tenderness and musculartightness in the cervical region, her neck pain had diminished, her "cervical [range of motionwas] within functional limits" and her "[s]trength throughout the bilateral upper extremities[was] also within functional limits." In addition, defendant submitted reports of twoexaminations performed on plaintiff by Jeffrey Gundel, an orthopedic surgeon retained by herinsurance company. Gundel initially diagnosed plaintiff with cervicothoracic strain andconcluded that she could "rotate 60 degrees to the right and 45 degrees to the left." In asubsequent examination, Gundel noted that plaintiff had only "some slight decrease in rotation tothe right with discomfort" and "full rotation without pain to the left," and determined that furtherorthopedic treatment was not necessary. Finally, plaintiff was able to return to work three weeksafter the accident, and an MRI performed on her cervical spine three months later revealedminimal cervical disc bulges, but was otherwise unremarkable. Based on this evidence, defendantargued that plaintiff did not sustain a serious injury in this accident.
In response to defendant's motion and in support of her claim that she did sustain a seriousinjury in this accident, plaintiff referred to the MRI examination and the fact that it found discbulges in her cervical spine. She also points to tests performed after the accident, which revealedthat she had suffered a decreased range of motion in her cervical spine. Plaintiff contends thatdefendant's motion should have been denied because this evidence creates, at the very minimum,a question of fact as to whether she sustained either a permanent consequential limitation of theuse of her cervical spine or a significant limitation of its use as a result of the injuries shesustained in this accident (see Insurance Law § 5102 [d]; Toure v Avis Rent ACar Sys., 98 NY2d 345, 352 [2002]; Hildenbrand v Chin, 52 AD3d 1164, 1165 [2008]).
Initially, we note that a bulging disc under certain circumstances can qualify as a seriousinjury if it results in a quantifiable loss in an individual's range of motion (see Sferra v McGregor, 69 AD3d1200, 1202 [2010]; Dean vBrown, 67 AD3d 1097, 1097 [2009]). In that regard, plaintiff submitted an affidavit byYousuf and argued that, when considered in connection with the findings of bulging discs asnoted in the MRI, it constituted objective medical evidence establishing that she sustained aserious injury in this accident. However, Yousuf's affidavit and, in particular, his conclusionregarding plaintiff's restrictions in her range of motion was based entirely upon an assessmentperformed by the physical therapist when plaintiff began her regimen of physical therapy and wasnot the result of any independent examination that Yousuf performed on her. Moreover, whilethe physical therapist initially reported restrictions in plaintiff's range of motion, she ultimatelyconcluded, when therapy ended four months later, that plaintiff's cervical range of motion waswithin functional limits. Plaintiff also submitted as part of her opposition to this motion thefindings of neurological exams that Yousuf performed when he treated her, but these tests simplyconfirmed that plaintiff's symptoms were not the result of any nerve injury. In our view, suchevidence, even when viewed in a light most favorable to plaintiff, does not establish theexistence of factual questions regarding whether she sustained either a permanent consequentiallimitation or significant limitation of the use of her cervical spine as the result of this accident(see Dean v Ahn Ja Jin, 78 AD3d at 1298; Houston v Hofmann, 75 AD3d 1046, 1049 [2010]), and defendant'smotion for summary judgment in this regard was properly granted.[*3]
Plaintiff also claims that she sustained a serious injurybecause her injuries prevented her from performing substantially all of her regular activities for90 of the 180 days immediately following the accident (see Insurance Law § 5102[d]; Howard v Espinosa, 70 AD3d1091, 1093 [2010]; Tuna vBabendererde, 32 AD3d 574, 575 [2006]). As to this claim, we note that plaintiffreturned to work within three weeks of the accident, and while she claimed to have lostadditional time from work, she was unable to quantify the total amount of time that she missedduring this 180-day period. Also, plaintiff did not specifically identify what activities she couldno longer perform as a result of the injuries she sustained in this accident. Instead, she claimedthat her activities were restricted because "[a]nything that causes—that you need your neckor back for that causes stress . . . I may be able to start doing it but I may not be ableto complete it." Such evidence is simply not sufficient to establish the existence of a seriousinjury under this category of the Insurance Law (see Solis v Silvagni, 82 AD3d 1349, 1350 [2011], lv denied17 NY3d 715 [2011]), and defendant's motion for summary judgment on this category of seriousinjury was also properly granted.
Finally, we agree with Supreme Court's conclusion that the scar that plaintiff now has as aresult of this accident does not constitute a significant disfigurement and does not qualify as aserious injury (see Insurance Law § 5102 [d]).[FN1]A scar constitutes a significant disfigurement if a reasonable person upon examining it wouldconclude that it is " 'unattractive, objectionable or the subject of pity or scorn' " (Doty v McInerny, 77 AD3d 1264,1265 [2010], lv denied 16 NY3d 703 [2011], quoting Baker v Thorpe, 43 AD3d 535, 537 [2007]; see Caruso vHall, 101 AD2d 967, 968 [1984], affd 64 NY2d 843 [1985]). Here, the scar waslocated on the back of plaintiff's head and, as she concedes, can be covered by her hair. As such,it is not readily visible and, on these facts,[FN2]does not constitute a significant disfigurement that would qualify as a serious injury resultingfrom this accident (see Doty v McInerny, 77 AD3d at 1265).
Mercure, A.P.J., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote 1: Plaintiff did not allege in her billof particulars, as noted by Supreme Court, that this scar constituted a significant disfigurement.
Footnote 2: The record contains no pictureor specific description of the scar.