| DeHaas v Kathan |
| 2012 NY Slip Op 07238 [100 AD3d 1057] |
| November 1, 2012 |
| Appellate Division, Third Department |
| Amber M. (Howser) DeHaas et al., Appellants, v TimothyR. Kathan et al., Respondents. |
—[*1] Bond, Schoeneck & King, PLLC, Syracuse (Stephanie M. Campbell of counsel), forrespondents.
Kavanagh, J. Appeal (transferred to the Court by order of the Appellate Division, FourthDepartment) from an order of the Supreme Court (O'Shea, J.), entered July 20, 2011 in ChemungCounty, which, among other things, granted defendants' cross motion for summary judgmentdismissing the complaint.
Plaintiff Amber M. DeHaas claims that on January 30, 2004 she was seriously injured whena van owned by defendant Time Warner and operated by defendant Timothy R. Kathan backedinto her vehicle while it was stopped on a public street in the Town of Southport, ChemungCounty. DeHaas and her husband, derivatively, commenced this action in June 2006 andsubsequently moved for partial summary judgment on the issue of liability. In response,defendants cross-moved for summary judgment dismissing the complaint on the ground thatDeHaas did not sustain a serious injury in this accident (see Insurance Law § 5102[d]). Supreme Court denied plaintiffs' motion and granted defendants' cross motion, finding thatplaintiffs did not raise a material question of fact as to whether DeHaas sustained a serious injuryunder the 90/180-day category of Insurance Law § 5102 (d). Supreme Court also foundthat plaintiffs, in their pleadings, had not alleged that DeHaas was seriously injured under anyother category of the Insurance Law and dismissed the complaint. Plaintiffs appeal and we nowaffirm.
Plaintiffs argue that there are questions of fact as to whether DeHaas sustained a seriousinjury under the fracture, 90/180-day, permanent consequential limitation of use and significant[*2]limitation of use categories of Insurance Law § 5102(d). "On a motion for summary judgment dismissing a complaint that alleges a serious injuryunder Insurance Law § 5102 (d), the defendant bears the initial burden of establishing bycompetent medical evidence that plaintiff did not sustain a serious injury caused by the accident"(Howard v Espinosa, 70 AD3d1091, 1091-1092 [2010] [internal quotation marks and citation omitted]; see Toure vAvis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Womack v Wilhelm, 96 AD3d 1308, 1309 [2012]). In order toestablish an injury under the permanent consequential limitation and significant limitation of usecategories, " 'the medical evidence submitted by [a] plaintiff must contain objective, quantitativeevidence with respect to diminished range of motion or a qualitative assessment comparing [the]plaintiff's present limitations to the normal function, purpose and use of the affected body organ,member, function or system' " (Solis vSilvagni, 82 AD3d 1349, 1350 [2011], lv denied 17 NY3d 715 [2011], quotingJohn v Engel, 2 AD3d 1027,1029 [2003]), and a plaintiff must demonstrate that the limitation of use that he or she sustainedwas more than mild, minor or slight (see Womack v Wilhelm, 96 AD3d at 1310; Licygiewicz v Stearns, 61 AD3d1254, 1254-1255 [2009]). "A serious injury under the 90/180-day category[ ] is establishedthrough objective medical evidence, where a nonpermanent, medically-determined injury. . . prevented the plaintiff from performing substantially all of his or her usual andcustomary daily activities for 90 of the first 180 days following the accident" (Shackett v Nappi, 75 AD3d 709,710 [2010] [internal quotation marks, citations and brackets omitted]; see Hildenbrand v Chin, 52 AD3d1164, 1165 [2008]).
In support of their cross motion for summary judgment, defendants submitted an affidavitfrom physician David Hootnick who performed an examination of DeHaas and reviewed hermedical records, including diagnostic and laboratory reports, and notes prepared by her treatingphysician. In concluding that DeHaas was not seriously injured in this accident, Hootnickreferred to the diagnosis rendered by the emergency room physician who treated her on the dayafter the accident that DeHaas had sustained a "contusion to the right shoulder and lumbar strain"and cited her recent medical history, which documented treatment for back pain that she receivedfive years prior to the accident. Hootnick also noted that an X ray performed in the emergencyroom was normal and simply showed "[a] slight lucency . . . in the anterosuperiorcorner of the L5 vertebral body . . . [that] could represent a normal variant of limbusvertebra, although a small avulsion of L5 cannot be fully excluded." In addition, Hootnickreferred to other diagnostic tests performed on DeHaas, including three MRIs and a bone scan,all of which were normal, and cited reports prepared in connection with the physical therapyregimen undertaken by DeHaas in October 2005, which indicated that she enjoyed a full range ofmotion and normal rotation. Based upon the foregoing, Hootnick concluded that there was noobjective medical evidence that DeHaas sustained a serious injury in this accident.
Hootnick's opinion—and the documents submitted in support of it—shifted theburden to plaintiffs to present objective medical evidence that raised a triable question of fact asto whether DeHaas, as a result of this accident, sustained a serious injury (see Womack vWilhelm, 96 AD3d at 1310; Crawford-Reese v Woodard, 95 AD3d 1418, 1418 [2012]; Clark v Basco, 83 AD3d 1136,1138 [2011]). In that regard, DeHaas submitted an affidavit from her treating physician, MarkGibson, who, in concluding that she was seriously injured in this accident, referred to theemergency room X ray and argued that it established that DeHaas had sustained a possibleavulsion fracture in the accident. However, as previously noted, radiological studies subsequentlyperformed on DeHaas failed to confirm the presence of a fracture or any other pathologyattributable to the accident, and Gibson's treatment notes not only confirm that all subsequentradiological studies performed on DeHaas were normal, but make no reference to a [*3]fracture. As for Gibson's reference to spasms noted on DeHaasthrough palpitations, he does not report performing any tests to induce these spasms or that heactually detected or observed them (see Toure v Avis Rent A Car Sys., 98 NY2d at 357;Peterson v Cellery, 93 AD3d911, 913 [2012]; Houston vHofmann, 75 AD3d 1046, 1048 [2010]). Further, while Gibson points to DeHaas'sphysical therapy records as evidence that her range of motion has been adversely impacted as aresult of injuries she sustained in this accident, these documents fail to identify the objective ordiagnostic tests used to support such a finding (see Clark v Basco, 83 AD3d at 1138).
It must also be noted that while DeHaas remained out of work until May 2004, her treatmentrecords reflect that the decision not to return to work was based entirely on subjective complaintsof pain that she made to Gibson, and not as a result of any objective findings he made whiletreating her (see Bowen v SaratogaSprings City School Dist., 88 AD3d 1144, 1146 [2011]). Based on the foregoing,plaintiffs have not raised a question of fact as to whether DeHaas sustained a serious injury underany of the alleged categories (see Cirillov Swan, 95 AD3d 1401, 1402 [2012]). As a result of this conclusion, we need notaddress plaintiffs' motion for partial summary judgment on liability, and their remainingarguments have been found to be without merit.
Peters, P.J., Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.