| Crawford-Reese v Woodard |
| 2012 NY Slip Op 03502 [95 AD3d 1418] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2— |
—[*1] Horrigan, Horrigan & Lombardo, Amsterdam (Peter M. Califano of counsel), forrespondent.
Spain, J. Appeal from an order of the Supreme Court (Kramer, J.), entered February 24, 2011in Schenectady County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff commenced this action alleging that she sustained a serious injury within themeaning of Insurance Law § 5102 (d) as a result of an October 2006 motor vehicleaccident in the City of Schenectady, Schenectady County. Defendant—the driver of thevehicle that collided with plaintiff's vehicle—successfully moved for summary judgmentdismissing the complaint. Plaintiff appeals, and we affirm.
"As the proponent of the summary judgment motion, defendant had the threshold burden ofestablishing by competent medical evidence that plaintiff did not sustain a serious injury causedby the accident" (Clark v Basco, 83AD3d 1136, 1137 [2011] [citations omitted]; see MacMillan v Cleveland, 82 AD3d 1388, 1388 [2011]). Plaintifflimits her argument on appeal to the 90/180-day category, rendering all other categories ofserious injury abandoned (see D'Auria vKent, 80 AD3d 956, 957 n 2 [2011]; Mrozinski v St. John, 304 AD2d 950, 951[2003]). Our review of the record satisfies us that defendant met his burden of establishing thatplaintiff did not suffer, as a result of the accident, " 'a medically determined injury or impairment[*2]of a non-permanent nature which prevent[ed] [her] fromperforming substantially all of the material acts which constitute [her] usual and customary dailyactivities' for at least 90 out of the 180 days immediately following the accident" (Hildenbrand v Chin, 52 AD3d1164, 1166 [2008], quoting Insurance Law § 5102 [d]; see Bowen v Saratoga Springs City SchoolDist., 88 AD3d 1144, 1145 [2011]).
The police report reflects that no injuries were reported at the accident scene and, althoughplaintiff sought medical treatment at a hospital emergency room eight days later complaining ofpain in her chest, neck, shoulder and right knee, radiology reports from the hospital indicatecalcification and arthritic changes, with no acute fractures or malalignment. Thereafter, severaltimes over the next few months, plaintiff sought medical treatment for various complaints,including chest, head, neck, arm, hip and knee pain, but no limitation of range of motion wasdocumented in the months following her accident, nor were there any recommendations forlimitations on plaintiff's work or activities. Diagnoses by various physicians who examinedplaintiff during this period included muscle strain, tendinitis, mild arthritis, degenerative arthritisand obesity.[FN*] Two independent medical examinations conducted on plaintiff by different doctors in 2007found no disabilities that would limit her work status or daily activities. Significantly, plaintiffcould not remember whether she had been working at the time of the accident or enrolled as astudent but, in any event, no evidence was submitted demonstrating that plaintiff missed any timefrom work or classes as a result of her injuries.
As this evidence was more than sufficient to establish a prima facie case that plaintiff did notsuffer a 90/180-day serious injury, the burden shifted to plaintiff to raise a triable issue of fact (see Houston v Hofmann, 75 AD3d1046, 1048 [2010]; Clark v Basco, 83 AD3d at 1138). Plaintiff submitted theaffidavit and examination report of Michael Adamec, a chiropractor who treated plaintiff onSeptember 15, 2010, almost four years after the accident. Adamec opined that, as the result of the2006 accident, plaintiff suffered from a torn left bicep and various knee injuries that were not theresult of common aging and which prevented plaintiff from performing all or substantially all ofthe material acts that constituted her usual and customary daily activities from the date of theaccident going forward. Even viewing this evidence in the light most favorable to plaintiff, it isinsufficient to raise a triable issue of fact under the 90/180-day serious injury category. Adamec'sconclusory opinion that plaintiff's injuries limited her daily activities years prior to hisexamination is unsupported by any medical restrictions placed upon her during the 180 daysfollowing the accident (see Houston v Hofmann, 75 AD3d at 1049; Drexler vMelanson, 301 AD2d 916, 918-919 [2003]).
Further, although quantitative testing of an injury made years after an accident may berelevant to ascertain the severity of a permanent injury suffered by a plaintiff (see Perl v Meher, 18 NY3d 208,217 [2011]), contemporaneous findings of injury are highly relevant to causation (see id.at 218) and to establishing the 90/180-day category of serious injury (see Houston v [*3]Hofmann, 75 AD3d at 1049; Tuna v Babendererde, 32 AD3d574, 577 [2006]). As plaintiff did not come into Adamec's care until years later, he is notcompetent to discuss plaintiff's activities during the months immediately following the accident(see Tuna v Babendererde, 32 AD3d at 577). Accordingly, Supreme Court properlygranted defendant's motion for summary judgment dismissing the complaint.
Rose, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote *: In 1994 plaintiff was found to bedisabled within the meaning of the Social Security Act, based upon, among other things,degenerative disc disease of the lumbar spine and moderate obesity. Her medical history alsoincludes a fractured sternum and left wrist as the result a motor vehicle accident in the late 1990sand whiplash in another motor vehicle accident, date unknown.