| Davis v Cottrell |
| 2012 NY Slip Op 08599 [101 AD3d 1300] |
| December 13, 2012 |
| Appellate Division, Third Department |
| Cheryl Davis, Appellant, v Kenneth Cottrell et al.,Defendants and Third-Party Plaintiffs-Respondents. Robert S. Davis Jr., Third-PartyDefendant-Respondent. |
—[*1] Santacrose & Frary, Albany (Patrick D. Slade of counsel), for defendants and third-partyplaintiffs-respondents. Adams, Hanson, Rego, Carlin, Hughes, Kaplan & Fishbein, Albany (Gerald D. D'Amelia Jr.of counsel), for third-party defendant-respondent.
McCarthy, J. Appeal from an order of the Supreme Court (McGrath, J.), entered June 29,2011 in Rensselaer County, which granted third-party defendant's motion for, among otherthings, summary judgment dismissing the complaint.
In July 2005, plaintiff was a passenger in a van driven by third-party defendant when the vanwas struck by a vehicle driven by defendant Katelyn Cottrell and owned by defendant KennethCottrell. Plaintiff's body jerked forward, but no part of her body struck the interior of the van.Plaintiff commenced this negligence action against defendants, who then commenced athird-party action. Third-party defendant moved for summary judgment dismissing thethird-[*2]party complaint on the ground that defendants'negligence was the sole proximate cause of the accident and dismissing the complaint on theground that plaintiff did not suffer a serious physical injury as defined in Insurance Law §5102 (d). Supreme Court granted the motion on the serious injury ground and dismissed thecomplaint. Plaintiff appeals.
As the movant, third-party defendant had the burden of establishing by competent medicalevidence that plaintiff did not sustain a serious injury caused by the accident (see Toure vAvis Rent A Car Sys., 98 NY2d 345, 352 [2002]). The burden would then shift to plaintiff toraise a triable issue of fact by presenting competent proof based upon objective medical findingsand tests to support any alleged serious injuries and connect them to the accident (see Larrabee v Bradshaw, 96 AD3d1257, 1260 [2012]; Tracy vTracy, 69 AD3d 1218, 1219 [2010]). Plaintiff alleged serious injury under fourcategories: permanent loss of use of a body member or system, permanent consequentiallimitation of use, significant limitation of use, and a nonpermanent injury that preventsperformance of substantially all of one's customary daily activities for 90 out of the 180 daysimmediately following the accident. To address all of these categories, third-party defendantsubmitted deposition testimony, plaintiff's medical records from several sources and reports froman independent medical examination.
A permanent loss of use must be total to qualify as a serious injury (see Oberly v BangsAmbulance, 96 NY2d 295, 299 [2001]; Tracy v Tracy, 69 AD3d at 1219). Becausethe record does not include proof that plaintiff has lost the total use of any body organ or system,and even her treating physician, James Cole, diagnosed her with a "permanent partial disability,"plaintiff cannot proceed under the permanent loss of use category (see Best v Bleau, 300AD2d 858, 860 [2002]).
To establish the permanent consequential limitation of use and significant limitation of usecategories, the submitted medical evidence "must contain objective, quantitative evidence withrespect to diminished range of motion or a qualitative assessment comparing plaintiff's presentlimitations to the normal function, purpose and use of the affected body organ, member, functionor system" (John v Engel, 2 AD3d1027, 1029 [2003]; accord Solis vSilvagni, 82 AD3d 1349, 1350 [2011], lv denied 17 NY3d 715 [2011]). Plaintiffwas involved in a 2004 accident where she injured her neck, arm, leg and upper back. At her2008 deposition, plaintiff testified that in the 2005 accident, she injured her leg, arm, back andneck, and that all except her back pain were resolved by the time of her testimony. She did notseparately mention an injury to her shoulder. Less than a month after the accident, her treatingphysician, Ajit Khanuja, noted that plaintiff had good range of motion of the shoulders and fairlygood range of motion of the cervical spine. Although she still had lumbar pain, Khanuja felt thatplaintiff could return to work. In August 2005, her physical therapists found the active range ofmotion of her spine within functional limits, and she continued to make slow but steady progress.By September 1, 2005, Khanuja noted that plaintiff had been back to work for approximately twoweeks, neck range of motion showed slight limitations, she had full range of motion of theshoulders and full range of motion of her back. His assessment was that the cervical strain andlumbar strain were both resolving and she could continue to work full time. Two weeks later, thesame physician noted that plaintiff had full range of motion of her back and could return to workfull duty without restrictions, including 10 hours per week of mandatory overtime. By October20, 2005, the office notes indicate that plaintiff had back pain but was "not complaining of anypain in her neck." An MRI taken in June 2006 showed a central disc protrusion at L4-L5 anddecreased signal within the disc substance at that level consistent with disc degeneration.
Bryan Bilfield, a physician who reviewed plaintiff's records and performed an [*3]independent medical examination, found normal range of motion inmost areas tested. He noted that photographs taken after the 2005 accident revealed nodiscernable damage to the van, indicating "minimal to no imparted energy to the van." Bilfieldcould not attribute the MRI findings to the 2005 accident, based on a review of the medicalrecords where a chiropractor noted low back pain following the 2004 accident, the photographsindicating the minimal impact of the accident, plaintiff's status as a passenger wearing a shoulderharness seat belt, and that other doctors who had examined her felt that the problem was relatedto degenerative disc disease rather than trauma. The MRI report stated that the disc problem was"consistent with disc desiccation/degeneration." Bilfield also found that plaintiff's subjectivecomplaints far outweighed the objective findings. All of the evidence submitted by third-partydefendant shifted the burden to plaintiff on these two categories.
In response to the motion, plaintiff submitted additional medical records and Cole's affidavit.Cole concluded, based on his examinations of plaintiff, her history, medical records, MRI andEMG testing, that plaintiff suffered injuries to her lumbar spine, left shoulder trauma and cervicalstrain caused by the 2005 accident. No objective testing that Cole performed was related to theshoulder, and Khanuja's records indicate that plaintiff had full range of motion of her shouldersshortly after the accident. The objective evidence also did not support the allegations that thecervical strain was a continuing problem. Notably, plaintiff had testified in 2008 that conditionsin her arm and neck had resolved, and she did not mention a shoulder injury at her deposition.
That leaves only a lower back injury to be considered. Evidence of a disc bulge alone is notsufficient to establish a serious injury, as there must also be proof that this condition was causedby the accident and produced an effect on the plaintiff's normal functioning or range of motion(see Toure v Avis Rent A Car Sys., 98 NY2d at 353 n 4; Howard v Espinosa, 70 AD3d1091, 1094 [2010]; Durham v NewYork E. Travel, 2 AD3d 1113, 1114 [2003]). While Cole noted that EMG studiesshowed radiculitis consistent with MRI findings of a disc bulge at the L4-L5 level, he did notaddress the disc degeneration noted on the MRI report nor explain his conclusory opinion thatthis injury was caused by the 2005 accident. Cole did not account for why plaintiff's preexistingphysical injuries from the prior accident were not the source of her injuries or any limitations thatshe now attributes to this accident (seeBoone v Milano, 96 AD3d 1195, 1197 [2012]; see also Franchini v Palmieri, 1 NY3d 536, 537 [2003]). Thus,plaintiff failed to raise a triable issue of fact on the permanent consequential limitation orsignificant limitation of use categories.
As to the 90/180-day category, the claim required "objective evidence linking the allegedcurtailment of [plaintiff's] activities following the accident to an injury sustained in the accident"(Clark v Basco, 83 AD3d 1136,1139-1140 [2011]). One week after the accident, Khanuja felt that plaintiff could return to work.He later stated that she should remain out of work until August 15, 2005, but after September 1,2005 he continually found that she could work full duty. Plaintiff's testimony described someactivities she could no longer perform, but others that she could. This met third-party defendant'sburden of showing that plaintiff's activities were not substantially curtailed. Cole began treatingplaintiff in October 2005, found that she was suffering from a total temporary disability and kepther out of work from October 2005 until February 2006. Although she was out of work for morethan 90 of the 180 days following the accident, that is not dispositive because the record mustestablish that she "was prevented from performing substantially all of the material acts thatconstituted [her] usual and customary daily activities" for the requisite time period (Amamedi v Archibala, 70 AD3d449, 450 [2010], lv denied 15 NY3d 713 [2010]; see Uddin v Cooper, 32 AD3d 270, 271 [2006], lv [*4]denied 8 NY3d 808 [2007]). Plaintiff testified that she couldnot carry groceries, lift or stretch like she usually did when cleaning, but she could still cook andwash the laundry. Cole opined that, due to the 2005 accident, plaintiff suffered a significantlimitation of the use of her lumbar spine "particularly respective to daily lifting, pushing, pulling,climbing stairs, and other mechanical activities, sitting and standing for extended periods."However, Cole did not differentiate to what extent these limitations were related to the 2005accident as opposed to the 2004 accident or degenerative changes (see Howard vEspinosa, 70 AD3d at 1094). He also did not support his qualitative assessment with"findings based upon any contemporaneous quantitative testing" that compared "the results of hisexamination to plaintiff's pre-accident levels or opine that the injuries that caused the reducedranges of motion were of the type that prevented plaintiff from performing her customary dutiesand activities" (Bowen v SaratogaSprings City School Dist., 88 AD3d 1144, 1146 [2011]). Without medical evidenceaddressing plaintiff's prior injuries and relating her current limitations to injuries incurred as aresult of the 2005 accident, she cannot prevail on the 90/180-day category either. Accordingly,Supreme Court correctly dismissed the complaint.
Mercure, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withone bill of costs.