| Schmidt v Meehan |
| 2012 NY Slip Op 05582 [97 AD3d 940] |
| July 12, 2012 |
| Appellate Division, Third Department |
| Hilda Schmidt et al., Appellants, v Gerald Meehan,Respondent. |
—[*1] Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (Alaina K. Laferriere ofcounsel), for respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Hummel, J.), entered September6, 2011 in Rensselaer County, which, among other things, granted defendant's cross motion forsummary judgment dismissing the complaint.
Plaintiff Hilda Schmidt (hereinafter plaintiff) was a passenger in a parked vehicle beingoperated by her husband, plaintiff Peter Schmidt, when defendant's car collided with plaintiffs'stationary vehicle. Plaintiff and her husband, derivatively, commenced this action alleging thatplaintiff sustained a serious physical injury (see Insurance Law § 5102 [d]). PeterSchmidt moved for summary judgment dismissing defendant's counterclaim against him.Defendant cross-moved for summary judgment dismissing the complaint on the grounds thatplaintiff did not sustain a serious injury and the emergency doctrine relieved him of liability.Supreme Court granted defendant's cross motion on the serious injury ground. Plaintiffs appeal.
Defendant did not establish his entitlement to summary judgment because questions of factexist regarding whether plaintiff suffered a serious injury to her spine. If a plaintiff establishesthat he or she sustained an injury within any of the categories that satisfy the no-fault threshold,the serious injury issue is removed from the case and the plaintiff may recover for all injuriescaused by the accident (see O'Neill v O'Neill, 261 AD2d 459, 460 [1999]; Preston vYoung, 239 AD2d 729, 731 n [1997]). Defendant submitted plaintiff's medical records,which include her continuing complaints of back pain. MRIs revealed several mild, broad-baseddisc [*2]bulges or protrusions. Under certain circumstances, abulging disc can constitute a serious injury "if it results in a quantifiable loss in an individual'srange of motion" (Mahar v Bartnick,91 AD3d 1163, 1165 [2012]). Defendant submitted a report and affidavit of neurologistJames Storey, who examined plaintiff and reviewed her medical records. Storey noted that hisphysical exam revealed a mildly restricted cervical range of motion to 45 degrees, with plaintiffable to bring her chin down to her chest. He did not identify or explain what range of motiontests he performed, or what the normal range of motion is to compare to her performance (see Chiara v Dernago, 70 AD3d746, 746-747 [2010]; Spektor vDichy, 34 AD3d 557, 558 [2006]; Chui Fong Lam v Spring Scaffolding, Inc., 33 AD3d 955, 955-956[2006]; see also MacMillan vCleveland, 82 AD3d 1388, 1389 [2011]; Hayes v Johnston, 17 AD3d 853, 854 [2005]). Storey's conclusionsthat plaintiff's injuries were not serious, without an explanation of his opinion regardingquantified results, failed to meet defendant's burden of showing that plaintiff did not qualifyunder the permanent consequential loss of use or significant limitation of use categories ofserious injury. Thus, we need not address plaintiffs' submissions in response; defendant's crossmotion for summary judgment on the ground of serious injury should have been denied.
Defendant was not entitled to summary judgment on the basis of the emergency doctrine.Defendant asserted that his vehicle suddenly accelerated, but the vehicle was never inspectedafter the accident because it was totaled. His assertion, without any proof of a mechanical defect,merely raised questions of fact regarding whether a true emergency existed, whether anyemergency was of defendant's own making and whether defendant responded as a reasonableperson would under the circumstances (see Schlanger v Doe, 53 AD3d 827, 828 [2008]).
Mercure, J.P., Rose, Lahtinen and Stein, JJ., concur. Ordered that the order is modified, onthe law, with costs to plaintiffs, by reversing so much thereof as granted defendant's cross motionfor summary judgment; cross motion denied; and, as so modified, affirmed.