| Boone v Milano |
| 2012 NY Slip Op 04804 [96 AD3d 1195] |
| June 14, 2012 |
| Appellate Division, Third Department |
| Karen E. Boone, Appellant, v Cynthia A. Milano et al.,Respondents. |
—[*1] Napierski, VanDenburgh & Napierski, L.L.P., Albany (Christina D. Porter of counsel), forrespondents.
Kavanagh, J. Appeals (1) from an order of the Supreme Court (Ferradino, J.), entered April12, 2011 in Saratoga County, which granted defendants' motion for summary judgmentdismissing the complaint, and (2) from an order of said court, entered October 25, 2011 inSaratoga County, which denied plaintiff's motion for reconsideration.
On April 18, 2008, plaintiff was involved in a motor vehicle accident with a car driven bydefendant Cynthia A. Milano and owned by defendant Felix J. Milano. As a result, plaintiffcommenced this action alleging that she suffered injuries to her neck, back and left shoulder, hadheadaches, as well as "pain from a trauma induced Chiari malformation," and psychological andemotional distress, all of which she alleges were caused by this accident. She claims that shesuffered a permanent consequential and significant limitation of use of her cervical spine, neck,lumbar spine, head and left shoulder, and a permanent loss of use of a body organ, memberfunction or system, and that, because of these injuries, she was unable to perform her usual andcustomary activities for 90 of the 180 days immediately following the accident (seeInsurance Law § 5102 [d]). Defendants moved for summary judgment dismissing thecomplaint arguing that plaintiff did not suffer a serious injury in this accident and that hercomplaints of injury and pain all relate to physical conditions that predated it. Supreme Courtgranted the motion and dismissed the complaint. Thereafter, plaintiff moved to renew, and thecourt denied that motion. [*2]Plaintiff now appeals from the ordergranting defendants' motion for summary judgment and the order denying her motion to renew.
Defendants, in support of their motion, made a prima facie showing that plaintiff did notsuffer a serious injury in this accident based on information contained in plaintiff's medicalrecords, as well as affidavits and reports from Sheldon Staunton, a neurologist, and ThomasEagan, a physician specializing in orthopedics, both of whom examined her (see Toure v AvisRent A Car Sys., 98 NY2d 345, 352 [2002]; MacMillan v Cleveland, 82 AD3d 1388, 1388 [2011]; Wolff v Schweitzer, 56 AD3d 859,860 [2008]). Eagan noted that plaintiff's medical records documented the existence of conditions,as well as complaints she made prior to the accident, that were strikingly similar to the injuriesthat she now had claimed in her bill of particulars were caused by this accident. He also statedthat the Chiari malformation[FN1]could not be caused by trauma, but rather was structural in nature and had to have existed prior tothe accident. As such, Eagan concluded that while plaintiff "may have suffered a mild temporarycervical strain" from the accident, she did not sustain a permanent consequential limitation, apermanent loss of use or significant limitation of a body organ, member, function or system, orany injury that prevented her from performing her usual activities during the 90 of the 180 daysimmediately following the accident.
Staunton reported that his neurological examination of plaintiff was "essentially normal,"that she had full range of motion to her cervical and left spine, and a fused left elbow as a resultof a surgery that predated the accident. Similarly, he attributed the restrictions that plaintiff hadin moving her left shoulder to a prior injury and a resulting surgical procedure that wasperformed prior to the accident. Moreover, Staunton found "no objective findings of anyrestrictions or limitations" related to the accident and, while plaintiff had subjective complaintsof pain, he noted that an MRI performed after the accident revealed only mild degenerativechanges and, when compared to an MRI performed prior to the accident, showed that there hadbeen no significant changes in plaintiff's condition. As for plaintiff's Chiari malformation,Staunton observed that she "experienced long-standing and chronic headaches and neck pain"before the accident that could have been caused by this condition. He further found that plaintiff'sclaimed restrictions or limitations—other than those that existed in her elbow andshoulder—were entirely subjective and self-limiting.
In opposition to defendants' motion for summary judgment, plaintiff was required to presentmedical evidence that " 'contain[ed] objective, quantitative evidence with respect to diminishedrange of motion or a qualitative assessment comparing [her] present limitations to the normalfunction, purpose and use of the affected body organ, member, function or system' " (Peterson v Cellery, 93 AD3d 911,913 [2012], quoting Dean v Brown,67 AD3d 1097, 1098 [2009]). In that regard, plaintiff offered the affirmation of Scott Rosa,a chiropractor who began treating plaintiff 2½ years after the accident.[FN2]Rosa noted a significant limitation in plaintiff's [*3]ability tomove her neck, as well as injuries to her spine, back, shoulder and arm, which he found werecaused by the motor vehicle accident. However, Rosa failed to account for why plaintiff'spreexisting physical maladies were not the source of the injuries and limitations that she nowclaims were caused by this accident. As such, Rosa's affirmation does not create a factual issuethat required denial of defendants' motion for summary judgment, and plaintiff's claims that shesuffered a permanent consequential limitation as well as a significant limitation of a body organ,member, function or system were properly dismissed (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Cirillo v Swan, 95 AD3d 1401,1402 [2012]; Foley v Cunzio, 74AD3d 1603, 1604-1605 [2010]).
As for the 90/180-day category, plaintiff only missed work after surgery was performed onthe Chiari malformation in March 2009—nearly a year after the accident. In addition, hermedical records document, and plaintiff admits, that many of the restrictions she now claimswere caused by injuries she sustained in this accident—walking her dogs, making craftsand doing housework—all existed before the accident and were apparently caused bymedical conditions that predated it (seeCrawford-Reese v Woodard, 95 AD3d 1418, 1419 [2012]). Finally, Supreme Courtproperly denied plaintiff's motion to renew—in which she submitted an affidavit by Rosain support thereof—because said affidavit did not serve to establish that a question of factexisted requiring denial of defendants' motion for summary judgment.
Lahtinen, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the orders areaffirmed, with costs.
Footnote 1: He described a Chiarimalformation as "a condition in which crowded brain tissue protrudes into the spinal canal. . . when the skull is abnormally small or misshapen pressing the brain and forcingit downward."
Footnote 2: Supreme Court refused toconsider Rosa's testimony, finding that because he was not a physician, he could not submit anaffirmation (see CPLR 2106). However, the court noted that even if it considered theassertions set forth in this affirmation, they failed to create a question of fact as to whetherplaintiff sustained a serious injury in this accident.