Opinion
670444.
Decided March 19, 2010.
Christopher G. Johnson, Esq., Thomas Rzepka, Esq., of counsel, Attorney for Plaintiff.
Rupp, Baase, Pfalzgraf, Cunningham Coppola, LLC, Alison M.K. Lee, Esq., of counsel, Attorney for Defendants.
The Defendants have moved pursuant to CPLR § 3212 for an Order granting summary judgment against the Plaintiff and dismissing the Plaintiff's Complaint in the above personal injury action. The Defendant's motion is based on the assertion that Plaintiff has failed to demonstrate that she suffered a serious injury as that term is defined under New York State Insurance Law § 5102. Alternatively, the Defendants assert that, even if Plaintiff is able to make a prima facie showing of a serious injury, she has failed to present sufficient evidence to indicate that the subject accident caused or contributed to her alleged condition. The Plaintiff has filed a cross-motion seeking partial summary judgment against the Defendants on the issue of negligence and requesting dismissal of the Defendant's motion.
Under CPLR § 3212(b), a summary judgment motion requires a court to determine whether the cause of action, counterclaim, or defense at issue requires a trial before it can be sustained or rejected. On a defendant's motion for summary judgment the supporting papers must establish a prima facie case for dismissal, through evidence in admissible form, (See e.g. Rampello v Ferguson, 280 AD2d 986 (4th Dept, 2001)). Should a defendant make such a showing, the burden then shifts to the plaintiff to come forward with sufficient evidence to defeat defendant's motion, by demonstrating the existence of an issue of fact as to whether Plaintiff did sustain a serious injury as defined by the Insurance Law. ( Gaddy v Eyler, 79 NY2d 955 (1992)). However, should a Defendant fail to meet their initial burden, then the Court need not consider the sufficiency of Plaintiff's papers. ( Byrnes v. Hertz Corp., 278 AD2d 867 (4th Dept, 2000)).
The Plaintiff's claim arises from a motor vehicle accident, which occurred in the parking lot of the Webster Town Center Plaza located at 925 Holt Road, Webster, New York. The Plaintiff was a passenger in a vehicle driven by her mother. As the Plaintiff's vehicle was proceeding westbound along the center driveway of the parking lot, the vehicle driven by the Defendant, Tammy Banker, emerged from a side driveway and collided with the Plaintiff's vehicle in the intersection.
In her Bill of Particulars, the Plaintiff alleges that she sustained numerous physical injuries as a result of the accident, primarily associated with claims of posterior neck pain, cervical muscle strain with spasm, radiculopathy, lower back pain and degenerative spondylasis, together with depression as a result of her condition. The Plaintiff maintains that, based on these injuries, she has suffered a serious injury as defined by Insurance Law § 5102(d), to wit:
permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
Plaintiff's deposition testimony is also before the Court, together with her supporting affidavit and numerous medical records, as detailed below.
In support of their motion, the Defendants have submitted medical records from the offices of two of the Plaintiff's own treating physicians, namely, Paul T. Rubery, M.D., orthopedist, and David W. Kopp, M.D., the Plaintiff's primary care physician. The records also include the results of two sets of x-ray studies of Plaintiff's cervical and lumber spine, as well as cervical and thoractic MRI studies also performed subsequent to the Plaintiff's accident. Based on the results of those studies, the Defendants maintain that there is no objective evidence that Plaintiff sustained a serious injury. Rather, the Defendants argue that, while the Plaintiff may have exhibited subjective complaints of pain, the studies were all normal, and the doctors' examinations indicated full range of motion and no traumatic injury. Even if the Plaintiff exhibited some slight limitation of movement, the Defendants maintain that the Plaintiff cannot demonstrate the "significance" of the alleged injury in "both degree and duration". (See, e.g. Mejia v DeRose , 35 AD3d 407 (2nd Dept, 2006)). The Defendants rely on the reasoning of the Court of Appeals in Gaddy (supra) and its progeny, in which the Court stated that summary judgment is not appropriate if the alleged injury results in a "minor, mild or slight limitation of use", which is classified as "insignificant" under the statute.
Without further reiterating all of the Defendant's arguments, the Court finds that the Defendants have offered sufficient proof in support of their motion for summary judgment. As the Defendants have met their quantum of proof, the burden now shifts to Plaintiff to come forward with sufficient competent medical evidence, based on objective medical findings and diagnostic tests, to raise an issue that, as a result of the accident Plaintiff did suffer a serious injury which meets the statutory definition. ( Barbagallo v Quackenbush, 271 AD2d 724 (3rd Dept, 2000)).
In response to the Defendants' motion, the Plaintiff offers her own affidavit, together with an affirmed copy of a report made by Cecilia L. Ransom, M.D., which was prepared in connection with the Plaintiff's no-fault claim. In her report, Dr. Ransom concluded, following range of motion measurements and other tests, that Plaintiff suffers from whiplash, cervicalgia and occipital neuralgia, which is causally related to the auto accident. Dr. Ransom's tests indicate a reduction in the range of motion of Plaintiff's neck, and she further indicates that the Plaintiff might benefit from the use of nerve blocks and facet injections. The Plaintiff also refers to portions of Dr. Kopp's records, submitted as part of the Defendants' papers, in which he causally relates the Plaintiff's "cervical muscle strain with spasm" to the auto accident. Counsel for the Plaintiff maintains that there is sufficient evidence to defeat the Defendants' motion for summary judgment.
In response to the Plaintiff's reliance on the report of Dr. Ransom, the Defendants argue that the Court should disregard the report, as the Plaintiff failed to disclose Dr. Ransom as an expert prior to the making of this motion. The Defendants also maintain that Dr. Ransom, as the doctor retained by the no-fault carrier, is not the Plaintiff's own expert and that she never "voluntarily involved herself" in Plaintiff's case, nor did she give her express consent to the Plaintiff as to the use of her report in the context of this motion.
The case law regarding the use of the report of a previously-undisclosed expert in the context of a summary judgment is conflicting. On the one hand, appellate courts have held that a trial court should not consider an expert affidavit offered by a party opposing a summary judgment motion, if the party did not provide an excuse for failing to identify the expert in response to the Plaintiff's discovery demands, and the other party was unaware of the expert until the filing of the summary judgment. (See, e.g. Yax v Development Team, Inc. , 67 AD3d 1003 (2nd Dept, 2009)).
However, other appellate courts have found that the trial court properly considered a previously-undisclosed expert's affidavit, declaring that CPLR § 3101 does not require a party to respond to a demand for expert witness information at any specific time, nor does it require preclusion of such testimony unless there is a showing of willful failure to disclose, coupled with a showing of prejudice by the other party. (See, e.g. Browne v Smith , 65 AD3d 996 (2nd Dept, 2009).
Given the discrepancies in the appellate decisions, this Court is inclined to find that the Plaintiff's failure to disclose Dr. Ransom as an expert does not preclude consideration by the Court of her report in the context of this motion. This finding is supported by the fact that Dr. Ransom's name as an examining physician was disclosed to Defendants in the Plaintiff's Bill of Particulars. Moreover, the cases relied on by the Defendants in support of the argument that case law precludes the use of Dr. Ransom's report because she is not the Plaintiff's own expert appear to be distinguishable, because they deal with a party's attempt to utilize the expert of an adverse party. Dr. Ransom is not a defense expert.
However, even if Dr. Ransom's report is admissible, this Court is nevertheless compelled to conclude that the Plaintiff's proof is insufficient to raise a triable issue of fact as to the existence of a serious injury under any definition set forth in § 5102. The Plaintiff failed to produce an affidavit from either of her treating physicians. All the x-ray and MRI studies proved normal. Even the range of motion tests — limited in nature — by Dr. Ransom are inconclusive, in that the alleged limitation may have been the result of the Plaintiff's subjective complaints of pain, rather than an actual injury. In summary, the Plaintiff's allegations, together with her other submissions, viewed in the light most favorable to the Plaintiff, do not constitute the sort of objective evidence necessary to establish that her injuries were either permanent or significant or consequential in nature. (See, e.g. Mrozinski v St John, 304 AD2d 950 (3rd Dept, 2003); Blanchard v Wilcox, 283 AD2d 821 (3rd Dept, 2001)).
Finally, as to the so-called "90/180" category of serious injury under § 5102(d) of the Insurance Law, the Defendants maintain that the Plaintiff was not incapacitated, in that she was able to perform her usual and customary activities during the period in question, and that she did not receive any ongoing treatment from a doctor for her alleged injuries or take part in any extensive physical therapy or rehabilitation. While the Plaintiff did not attend school for approximately three weeks following the accident, she returned to classes shortly thereafter (albeit on a limited schedule at times), graduated high school with high marks and started college as scheduled. She also was able to engage in many of her regular activities including driving, horseback riding, traveling and working in the family stables. (although she was unable to perform her part-time duties at the vet clinic.) Therefore, the Court finds as a matter of law that the Plaintiff did not suffer a serious injury under the "90/180 day" language portion of the statute. (See, e.g. Drexler v Melanson, 301 AD2d 916 (3rd Dept, 2003)).
In view of the Court's decision regarding the issue of serious injury, the Plaintiff's motion for partial summary judgment on the issue of negligence has been rendered moot. However, were the merits of Plaintiff's motion to be reached, the Court would find that, based on a review of the transcripts of the depositions and the other documentary evidence submitted by the respective parties, there are sufficient issues of fact which would preclude the granting of the motion. There are conflicting accounts as to such circumstances as the speed of the respective vehicles and their relative positions at the time of impact. Given those circumstances, together with the uncertain location of speed bumps and the absence of stop signs or other traffic control devices, the Court finds that there are questions regarding the comparative fault of the drivers, which would have had to await trial.
Therefore, since the Court finds that the Defendants have met their evidentiary burden, the motion of the Defendants for summary judgment is granted and the Complaint is dismissed. The Plaintiff's cross-motion for partial summary judgment is also deemed denied as moot. Counsel for the Defendants shall submit an order in accordance with the Court's decision.