| Lipscomb v Cohen |
| 2012 NY Slip Op 02149 [93 AD3d 1059] |
| March 22, 2012 |
| Appellate Division, Third Department |
| Royal Lipscomb et al., Respondents, v Stephen J. Cohen et al.,Appellants. |
—[*1] Nicholas, Perot, Smith, Bernhardt & Zosh, Akron (Craig H. Bernhardt of counsel), forrespondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Sherman, J.), entered November19, 2010 in Tompkins County, which, among other things, denied defendants' cross motion forsummary judgment dismissing the complaint.
Plaintiff Royal Lipscomb (hereinafter plaintiff) and his wife, derivatively, commenced thisaction seeking damages for injuries allegedly sustained when plaintiff's car was struck frombehind by a vehicle operated by defendant Stephen J. Cohen and owned by defendant ClaudeCohen. Following discovery, plaintiffs moved for summary judgment on the issue of liability anddefendants cross-moved for summary judgment dismissing the action on the ground that plaintiffhad not sustained a serious injury (see Insurance Law § 5102 [d]). Supreme Courtdenied both motions, and defendants appeal.
The accident occurred while plaintiff was en route to his November 14, 2006 appointmentwith his family physician, John-Paul Mead, for a diabetic checkup. At the time of the accident,plaintiff was 62 years old and, importantly, had no prior medical history of problems with hisneck. After the accident, he continued to his appointment and, at some point thereafter, hescheduled an appointment to return to Mead regarding his neck, which he testified startedbothering him following the accident. Thereafter, plaintiff received extensive treatment by manyhealthcare providers. In January 2007, he returned to Mead, received pain medication [*2]and started a regimen of physical therapy. In June 2007, he wasreferred to a neurosurgeon, Gerald Zupruk, whose treatment included, among other things,muscle relaxants and a referral for several steroid injections. At the end of December 2007,Zupruk suggested that plaintiff continue exercises and return on an "as-needed basis only."Plaintiff's neck pain continued throughout 2008, but he had other unrelated health issues and didnot seek further treatment for his neck until the pain became unbearable at the end of 2008. Inearly December 2008, Mead referred him to orthopedic surgeon Seth Zeidman, who he saw inJanuary 2009. Following further tests and visits, Zeidman recommended an anterior cervical discfusion at C3-4, C4-5, which was performed in September 2009 by John Fahrbach, aneurosurgeon.
Disputed issues on appeal include whether plaintiffs produced sufficient proof regardingcausation, adequately explained the gap in treatment in 2008, and set forth ample evidence of asignificant limitation of use of body function or system. At this procedural point, the evidence onsuch issues is considered in the light most favorable to plaintiffs (see Gronski v County of Monroe, 18NY3d 374, 381 [2011]).
On the causation issue, Mead and Zupruk broadly related plaintiff's neck problems to theaccident, and the neurosurgeon who conducted an independent medical examination opined thatthe injuries were related to both the accident and plaintiff's degenerative condition. More detailedopinions were offered by treating physicians Zeidman and Fahrbach, who had reviewed plaintiff'smedical history, including the pertinent X ray and MRIs. Citing the lack of a preaccident historyof cervical dysfunction or pain, the doctors unequivocally opined that the accident destabilizedplaintiff's cervical spine causing his acute and chronic injuries to the neck, and such injuriesresulted in the required surgical intervention. Given that several doctors rejected plaintiff'sdegenerative condition as the sole cause of his injury, and with no preaccident medical history ofneck pain, there is sufficient evidence to raise a factual question regarding causation (see Perl v Meher, 18 NY3d 208,218-219 [2011]).
Regarding the gap in plaintiff's treatment during 2008, "a cessation of treatment is notdispositive" on a summary judgment motion, although "a plaintiff who terminates therapeuticmeasures following the accident, while claiming 'serious injury,' must offer some reasonableexplanation for having done so" (Pommells v Perez, 4 NY3d 566, 574 [2005]). Here, plaintiffexplained that, as of the end of December 2007, Zupruk gave him tips on helpful exercises andonly sought to see him on an "as-needed" basis in the future; he continued to have constant neckpain, but had no desire to undergo surgery, and needed to deal with other health issues in 2008;and he sought further treatment when the pain became unbearable towards the end of 2008. Heprovided a reasonable explanation for the gap and he was not required to "incur the additionalexpense of consultation, treatment or therapy, merely to establish the seriousness or causalrelation of his injury" (id. at 577).
The affirmations of Fahrbach and Zeidman were adequate to raise a factual issue regarding asignificant limitation. In addition to opining that the accident caused the injuries that necessitatedplaintiff's surgery, they set forth a sufficient description of the various resulting limitations onplaintiff's activities and movements to survive summary dismissal (see Toure v Avis Rent ACar Sys., 98 NY2d 345, 350-351 [2002]). The doctors' opinions included: "[plaintiff]suffered a qualitative limitation which restricted his ability to perform repetitive pushing, pulling,and reaching overhead"; "he has a qualitative limitation to his ability to perform any overheadwork, any lifting for an extended period of time"; and "[h]e should not lift more than 20 poundsat any one given time, or repetitively lift any weight of more than 10 pounds with [*3]absolutely no overhead work whatsoever."
Finally, although Supreme Court denied defendants' cross motion in its entirety upon findingample proof of a serious injury, we note that plaintiffs alleged in their pleadings a serious injuryunder other categories of Insurance Law § 5102 (d), including significant disfigurement,permanent loss of use of a body organ, member, function or system, permanent consequentiallimitation of use of a body organ or member and the 90/180-day category. Defendants' crossmotion should have been granted as to these categories since plaintiffs failed to raise a triableissue with respect thereto.
Mercure, A.P.J., Peters, Rose and Garry, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as denied defendants' cross motion forsummary judgment dismissing that part of the complaint alleging that plaintiff Royal Lipscombsuffered a serious injury in the significant disfigurement, permanent loss of use, permanentconsequential limitation and 90/180-day categories; cross motion granted to that extent, partialsummary judgment awarded to defendants and said claims dismissed; and, as so modified,affirmed.