| Peterson v Cellery |
| 2012 NY Slip Op 01533 [93 AD3d 911] |
| March 1, 2012 |
| Appellate Division, Third Department |
| Kathryn Peterson et al., Respondents-Appellants, v Mary Cellery,Respondent, and David H. Picotte et al., Appellants. |
—[*1] Epstein & Rayhill, Latham (Jeffery T. Culkin of counsel), for respondent. The DeLorenzo Law Firm, L.L.P., Schenectady (Thomas E. DeLorenzo of counsel), forrespondents-appellants.
Peters, J.P. Appeals from an order of the Supreme Court (Kramer, J.), entered May 5, 2011in Schenectady County, which partially denied a motion by defendants David H. Picotte andWilliam B. Picotte for summary judgment dismissing the complaint and granted defendant MaryCellery's motion for summary judgment dismissing the complaint.
In January 2007, plaintiff Kathryn Peterson (hereinafter plaintiff) was rear-ended by a vehicledriven by defendant Mary Cellery. Following the accident, plaintiff drove herself to an urgentcare center where she was given pain medication and released. She later sought follow-up carewith her primary physician, who diagnosed her with a cervical, thoracic and lumbar sprain andrecommended physical therapy. In April 2007, plaintiff's vehicle was struck by a vehicle drivenby defendant David H. Picotte and owned by defendant William B. Picotte. Plaintiff wasremoved from the car on a backboard, taken to the hospital and, following her release, continuedseeking treatment for back problems, which she states worsened significantly after the second[*2]accident. A July 2007 MRI of plaintiff's lower back revealeda degenerative disc dessication with a posterior tear at L5-S1 and mild posterior disc bulge atL4-L5. Plaintiff thereafter received various treatments for her back, which included prolotherapyinjections, and ultimately underwent spinal fusion surgery in May 2008. Three months later,plaintiff underwent two consecutive surgical procedures for spinal implants to alleviate pain.
Plaintiff and her husband, derivatively, commenced personal injury actions against Celleryand the Picottes. The actions were consolidated and defendants separately moved for summaryjudgment dismissing the complaint on the ground that plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d). Supreme Court granted Cellery's motionin its entirety, but only partially granted the Picottes' motion, finding a question of fact as to thesignificant disfigurement and significant limitation of use categories. The Picottes appeal from somuch of that order as denied their motion, and plaintiffs appeal from that part of the order asgranted Cellery's motion.
First addressing plaintiffs' appeal from the award of summary judgment in favor of Cellery,we find that Cellery met her initial burden of establishing that plaintiff did not suffer a seriousinjury as a result of the January 2007 accident (see Toure v Avis Rent A Car Sys., 98NY2d 345, 352 [2002]; Clark vBasco, 83 AD3d 1136, 1137 [2011]). In support of the motion, Cellery presentedevidence that X rays and MRIs of plaintiff's cervical and lumbosacral spine performed betweenthe two accidents were normal and revealed no evidence of a traumatic injury. Plaintiff's physicaltherapy records indicated that her neck pain had markedly improved following the first accidentand medical records from February 2007 and March 2007 indicated that she only had a mildlydiminished range of motion of the cervical spine and "good range of motion" in her lumbar spine.Further, plaintiff's deposition testimony acknowledged that she returned to work approximately amonth after that accident, began working full time shortly thereafter and continued to do so untilthe second accident. Defendant also submitted the sworn report of Christopher Calder, aneurologist who reviewed plaintiff's medical records and performed an independent medicalexamination of plaintiff in 2010. Calder concluded that, although plaintiff may have suffered aminor cervical sprain as a result of the January 2007 accident, there was no objective evidence ofany neurological condition or impairment attributable to that accident.
In response to this proof, plaintiffs failed to raise an issue of fact as to whether plaintiffsuffered a significant limitation of use of any body function or system as a result of the firstaccident.[FN1]To establish a claim under that category, " 'the medical evidence submitted by plaintiff[s] mustcontain objective, quantitative evidence with respect to diminished range of motion or aqualitative assessment comparing plaintiff's present limitations to the normal function, purposeand use of the affected body organ, member, function or system' " (Dean v Brown, 67 AD3d 1097,1098 [2009], quoting John v Engel,2 AD3d 1027, 1029 [2003]; accord Clark v Basco, 83 AD3d at 1137). Here,plaintiffs submitted the affidavit of Steven Balsamo, plaintiff's treating physician, who averredthat, in the month following the first accident, he [*3]detectedspasms upon palpation in the sternocleidomastoid as well as the posterior cervical muscles.While the detection of spasms through palpation constitutes objective medical evidence of aninjury (see Clements v Lasher, 15AD3d 712, 713 [2005]; Santos v Marcellino, 297 AD2d 440, 442 [2002];Barbagallo v Quackenbush, 271 AD2d 724, 725 [2000]), critically absent is anyquantitative or qualitative assessment of plaintiff's limitations. Balsamo's conclusory statementthat plaintiff suffered "a significant limitation of [her] cervical spine, thoracic spine and lumbarspine" which "was not mild but significant and hindered her movements of her cervical, thoracicand lumbar spine areas" makes no meaningful comparison so as to differentiate serious injuriesfrom mild or moderate ones, and was thus insufficient to establish a significant limitation of use(see Gonzalez v Green, 24 AD3d939, 940-941 [2005]; Clements v Lasher, 15 AD3d at 713; see also Wilber v Breen, 25 AD3d836, 836-837 [2006]; compare Santos v Marcellino, 297 AD2d at 441-442;Barbagallo v Quackenbush, 271 AD2d at 725). Accordingly, Cellery's motion forsummary judgment was properly granted.
We next address the Picottes' assertion that Supreme Court should have dismissed plaintiffs'claims under the significant limitation of use and significant disfigurement categories of seriousinjury. In support of their motion, the Picottes offered the affidavit of physician DanielSilverman, who opined that, based upon his review of plaintiff's medical records, no objectivemedical evidence exists to support the finding of any serious or permanent injury as a result ofthe April 2007 accident. Silverman noted that X rays of plaintiff's lumbar spine, left hip andpelvis taken immediately following the second accident and an August 2007 MRI of plaintiff'scervical spine were essentially unremarkable, and electrodiagnostic studies of the lower back andleft lower extremity performed in April and August 2007 produced normal results. He notedfurther that plaintiff's subjective complaints of back and neck pain were present following thefirst accident and that the abnormalities shown in the July 2007 MRI of plaintiff's lumbar spinewere mild and did not correlate with plaintiff's symptomology. This evidence was sufficient toshift the burden to plaintiffs to provide competent medical evidence to " 'support [their] claim ofserious injury and to connect the condition to the [second] accident' " (Anderson v Capital Dist. Transp.Auth., 74 AD3d 1616, 1617 [2010], lv denied 15 NY3d 709 [2010], quoting Wolff v Schweitzer, 56 AD3d 859,861 [2008]; see Pommells v Perez,4 NY3d 566, 580 [2005]).
In opposition, plaintiffs submitted the affidavit of her treating chiropractor Craig Nelson,who opined that plaintiff suffered significant limitations of function in her lower back as a resultof the second accident. His conclusions were based on his physical examinations of plaintiff,diagnostic tests and the July 2007 MRI of plaintiff's lumbar spine reflecting an annular tear atL5-S1 and disc bulge at L4-L5. Nelson also quantified the limitation of plaintiff's range ofmotion in her cervical and lumbar ranges, as measured by a digital dual inclimometer system, andnoted that the limitations in plaintiff's lumbar spine progressively worsened over time. Nelsonaverred that the test results were consistent with his diagnoses and plaintiff's symptoms, as wellas his exam of plaintiff and the range of motion test results, and concluded that, based onplaintiff's medical history and his clinical evaluations, plaintiff's symptoms and injuries werecausally related to the second accident. Plaintiffs also submitted the affidavits of Edward Scheid,plaintiff's treating neurosurgeon, and Balsamo, who examined plaintiff on separate occasionsafter each accident, both of whom stated unequivocally that the injuries sustained by plaintiffwere caused by the second accident. Their opinions in that regard were supported by theirphysical examinations of plaintiff and objective medical evidence, including plaintiff's MRIresults as well as spinal instability and bilateral compression of the nerve roots at L4, L5 and S1found upon performing the May 2008 surgery. These submissions were sufficient to raise anissue of fact as to whether plaintiff sustained a significant limitation of the use of her lower back[*4]as a result of the April 2007 accident (see Chunn v Carman, 8 AD3d 745,747 [2004]; McGuirk v Vedder, 271 AD2d 731, 732 [2000]; Evans v Hahn, 255AD2d 751, 751-752 [1998]; Pietrocola v Battibulli, 238 AD2d 864, 866 [1997]).
Finally, as to plaintiffs' claim of significant disfigurement, the photographs submitted inopposition to the motion, which depict on plaintiff's back a five-inch-long vertical scar from thespinal fusion surgery and a nearly three-inch-long horizontal scar from the subsequent implantsurgery, were sufficient to create a question of fact as to whether a reasonable person viewing herback would regard it as unattractive or objectionable (see Matula v Clement, 132 AD2d739, 740 [1987], lv denied 70 NY2d 610 [1987]; Savage v Delacruz, 100 AD2d707, 707-708 [1984]; compare Pietrocola v Battibulli, 238 AD2d at 865; Caruso vHall, 101 AD2d 967, 968 [1984], affd 64 NY2d 843 [1985]).[FN2]Moreover, plaintiffs' submissions raised a factual issue as to whether the April 2007 accident wasthe proximate cause of plaintiff's need for the surgeries and, therefore, whether the resultantsurgical scars were causally related to that accident (see Kilmer v Strek, 35 AD3d 1282, 1282-1283 [2006]; Johnson v Grant, 3 AD3d 720,721-722 [2004]).
Rose, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: Although plaintiffs' bill ofparticulars alleged additional categories of serious injury, these have not been pursued on appealand are therefore deemed abandoned (see D'Auria v Kent, 80 AD3d 956, 957 n 2 [2011]; Santos vMarcellino, 297 AD2d 440, 441 [2002]).
Footnote 2: Despite the Picottes' assertion tothe contrary, Supreme Court did not abuse its discretion in considering the photographs under thecircumstances of this case. At least four of the six photographs submitted by plaintiffs were takenfor the purpose of opposing the motion to show the appearance of the scars and, thus, could nothave been disclosed earlier. Moreover, notwithstanding the fact that plaintiffs' bill of particularsset forth plaintiff's claim that the scars from the surgeries constituted a serious disfigurement, thePicottes chose not to have a physical examination conducted of plaintiff, which would haveallowed viewing of the scars, and have failed to allege any prejudice as a result of the timelinessof the disclosures. In any event, even in the absence of such photographs, plaintiff's descriptionof the scars was sufficient to create a question of fact regarding serious disfigurement (seeLewis v General Elec. Co., 145 AD2d 728, 729 [1988]).