Summary
recognizing personal injury plaintiff with preexisting degenerative changes in lumbar spine could recover for causally related serious injury only if the plaintiff could establish collision aggravated or exacerbated preexisting degenerative condition
Summary of this case from Catania v. United StatesOpinion
109 CA 16-00847.
03-24-2017
Richard M. BROWN, Plaintiff–Respondent, v. Jared Preston MILLER and Lynnette F. Miller, Defendants–Appellants.
Rupp Baase Pfalzgraf Cunningham LLC, Rochester (Alison K.L. Moyer of Counsel), for Defendants–Appellants. Hall and Karz, Canandaigua (Peter Rolph of Counsel), for Plaintiff–Respondent.
Rupp Baase Pfalzgraf Cunningham LLC, Rochester (Alison K.L. Moyer of Counsel), for Defendants–Appellants.
Hall and Karz, Canandaigua (Peter Rolph of Counsel), for Plaintiff–Respondent.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:Plaintiff commenced this action to recover damages for injuries he allegedly sustained when a vehicle that he was operating collided with a vehicle owned by defendant Lynnette F. Miller and operated by defendant Jared Preston Miller. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102. We agree with defendants that Supreme Court erred in denying the motion.
Defendants met their burden on the motion by submitting the affirmed report of a physician who examined plaintiff and reviewed his prior medical records. The physician concluded that plaintiff sustained only a concussion and a minor cervical and lumbosacral strain in the collision, and that those injuries had resolved. Furthermore, the physician opined that plaintiff's prior imaging studies revealed preexisting degenerative changes not causally related to the collision, and that the collision did not aggravate or exacerbate plaintiff's preexisting degenerative condition (see Bleier v. Mulvey, 126 A.D.3d 1323, 1324, 5 N.Y.S.3d 749 ; French v. Symborski, 118 A.D.3d 1251, 1251, 987 N.Y.S.2d 724, lv. denied 24 N.Y.3d 904, 2014 WL 4637174 ).
The burden then shifted to plaintiff "to submit competent medical evidence, based on objective findings and diagnostic tests, raising a triable issue of fact" (Applebee v. Beck, 118 A.D.3d 1279, 1280, 987 N.Y.S.2d 777 ), and we conclude that plaintiff failed to meet that burden. Although plaintiff submitted expert medical evidence establishing that he sustained injuries causally related to the collision, he failed to raise an issue of fact whether those injuries constituted "serious injury" within the meaning of Insurance Law § 5102 (see Linnane v. Szabo, 111 A.D.3d 1304, 1305, 974 N.Y.S.2d 715 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaint is dismissed.