| Cirillo v Swan |
| 2012 NY Slip Op 03493 [95 AD3d 1401] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2—Leah S. Cirillo, Appellant, v Nannie M. Swan,Respondent. |
—[*1] Adams, Hanson, Finder, Hughes, Rego, Kaplan & Fishbein, Albany (Richard J. Fishbein ofcounsel), for respondent.
Mercure, J.P. Appeal from an order of the Supreme Court (Work, J.), entered April 22, 2011in Ulster County, which granted defendant's motion for summary judgment dismissing thecomplaint.
The parties were involved in an automobile accident, following which plaintiff commencedthis action to recover for injuries she purportedly sustained therein. After joinder of issue,defendant moved for summary judgment on the ground that plaintiff had not sustained a seriousinjury as defined by Insurance Law § 5102 (d). Supreme Court agreed and granteddefendant's motion, prompting this appeal.
We now affirm. Plaintiff contends that defendant failed to show in the first instance, asrequired, that she did not suffer a serious injury as a result of the accident. In that regard,defendant relied upon a sworn report from orthopedic surgeon Robert Hendler, who reviewedplaintiff's medical records and found no objective evidence of pathology stemming from theaccident. Indeed, plaintiff had significant neck and back pain due to injuries predating theaccident, was found to have only nonspecific and mild pain after it, and was quickly cleared toreturn to work. Hendler's own examination of plaintiff was "completely normal," and he opinedthat plaintiff suffered no more than a neck or lower back sprain, or temporary aggravation of aprior condition that had fully resolved. Defendant thus met her initial burden as to all claimedcategories of serious injury, thereby shifting the burden to plaintiff to raise a material question of[*2]fact (see Flisch v Walters, 42 AD3d 682, 683-684 [2007]; Snow v Harrington, 40 AD3d1237, 1238 [2007]; Tuna vBabendererde, 32 AD3d 574, 575-576 [2006]).
We reject plaintiff's assertion that she demonstrated the existence of questions of fact withrespect to the permanent consequential limitation and significant limitation of use categories ofserious injury. Plaintiff relies upon the affidavits of physicians Ravi Ramaswami and DavidGamberg as constituting the requisite "objective, quantitative evidence with respect todiminished range of motion or a qualitative assessment comparing [her] present limitations to thenormal function, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029[2003]; accord Clark v Basco, 83AD3d 1136, 1138 [2011]; see Perlv Meher, 18 NY3d 208, 217 [2011]). Ramaswami, plaintiff's family physician, notedthat MRIs of her spine revealed disc bulges and possible herniations, and opined that thoseconditions arose out of the automobile accident and left plaintiff permanently and significantlydisabled. He did not, however, provide any explanation or objective medical basis for his beliefthat plaintiff's limitations were unrelated to her several prior complaints for which she hadreceived extensive treatment (seeAnderson v Capital Dist. Transp. Auth., 74 AD3d 1616, 1617 [2010], lv denied15 NY3d 709 [2010]; Wolff vSchweitzer, 56 AD3d 859, 862 [2008]; cf. Perl v Meher, 18 NY3d at 219).Gamberg, a spine pain management specialist, found that plaintiff sustained injuries in theaccident and also quantified how they significantly limited her range of motion. His affidavit isnonetheless inadequate, however, in that he wholly failed to address plaintiff's prior backcondition and injuries; nor did he sufficiently describe the objective tests used to determine herlimitations (see Franchini vPalmieri, 1 NY3d 536, 537 [2003]; Houston v Hofmann, 75 AD3d 1046, 1048-1049 [2010]; Sferra v McGregor, 69 AD3d1200, 1202 [2010]). Accordingly, inasmuch as this evidence did not raise a material questionof fact on the issue of whether plaintiff sustained a serious injury, Supreme Court properlygranted defendant's motion.
Spain, Stein, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, with costs.