Opinion
05-1525.
Decided March 16, 2007.
Basch Keegan, LLP, Derek J. Spada, Esq., Kingston, New York, Attorneys For Plaintiffs.
Eisenberg Kirsch, Esqs., Michael D. Wolff, Esq., Liberty, New York, Attorneys For Defendant.
In this case involving a motor vehicle accident, defendant moves for summary judgment pursuant to CPLR 3212(a), asserting that plaintiff Deborah Scott (hereinafter "plaintiff") fails to meet the statutory threshold for sustaining a "serious injury" pursuant to New York State Insurance Law.
The facts as contended by plaintiff are that the parties were involved in a two vehicle accident on February 15, 2005 (hereinafter "accident") in which plaintiff's car was hit in the front when defendant allegedly lost control of her car on ice and crossed the yellow line. Plaintiff was driven to the hospital by her husband, who came to the accident scene. At the time of the accident, plaintiff reported pain in her knees, and had glass in her left hand, which was removed approximately one week later. Plaintiff reports that her knee pain resolved within the following month.
There is no dispute that plaintiff did not immediately report any pain or injury to her right shoulder.
The facts as set forth by plaintiff are that she began feeling pain in her right shoulder less than a month after the accident. Plaintiff had sustained a prior torn ligament in her right shoulder in a boating accident in August 2004, which she reports was resolved no later than one month prior to the present accident. Plaintiff had surgery on her right shoulder in June 2005. Plaintiff reports feeling numbness in her shoulder, arm and hand in November 2005 and states that she was diagnosed with a herniated disc and recommended for a surgical fusion in her neck, which she declined. She reports continuing occasional numbness and frequent soreness in her right shoulder and arm.
Defendant now moves for summary judgment, asserting that plaintiff's injuries do not meet the statutory threshold for a "serious injury" under Insurance Law § 5102(d). Plaintiffs oppose the motion, asserting that plaintiff's injuries separately and in combination meet the statutory definition of serious injury.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact ( Andre v Pomeroy, 35 NY2d 361, 364). The focus should be on issue identification rather than issue determination ( Sternbach v. Cornell University, 162 AD2d 922, 923 [3rd Dept. 1990]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v Prospect Hosp., 68 NY2d 320, 324; see also Ayotte v Gervasio, 81 NY2d 1062; Zuckerman v City of New York, 49 NY2d 557). Once the movant has established a right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact ( see Alvarez, supra; Zuckerman, supra). The evidence must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, in order to determine whether there is any triable issue of fact outstanding ( see Suffolk Co. Dept. of Soc. Servs. v James M., 83 NY2d 178, 182; Boyce v Vazquez, 249 AD2d 724, 725 [3rd Dept. 1998]).
In New York State, a party alleging negligence in a motor vehicle accident may only recover damages for pain and suffering if they have suffered a "serious injury" pursuant to Insurance Law § 5102(d) ( see Ins. Law § 5104[a]; Pommells v Perez , 4 NY3d 566 ). A serious injury is defined as follows:
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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.
Ins. Law § 5102[d]. Subjective accounts of pain may not be the basis for a serious injury ( Scheer v Koubek, 70 NY2d 678).
A defendant seeking summary judgment asserting that plaintiff failed to meet the serious injury threshold has the initial burden of presenting evidence in admissible form establishing that plaintiff did not suffer a serious injury causally related to the accident in question ( Gaddy v Eyler, 79 NY2d 955, 956-57; Hayes v Johnston , 17 AD3d 853 , 853-54 [3rd Dept 2005]; Santos v Marcellino, 297 AD2d 440, 441 [3rd Dept 2002]). To meet this burden, defendant may submit plaintiff's own deposition testimony and defendant's own examining doctor's affirmed report ( Moore v Edison , 25 AD3d 672 [2nd Dept 2006]; Farozes v Kamran , 22 AD3d 458 , 458 [2nd Dept 2005]; McNamara v Wood , 19 AD3d 921 , 922 [3rd Dept 2005]). Once a defendant has met their burden, the burden shifts to the plaintiff "to come forward with sufficient evidence to overcome defendant's motion by demonstrating that she sustained a serious injury within the meaning of the No-Fault Insurance Law" ( Gaddy, 79 NY2d at 957; see also Farozes, 22 AD3d 458).
First, regarding the category of serious injury of "permanent consequential limitation of use of a body organ or member," the requirement of permanency must be met (Ins. Law 5102[d]).
Second, regarding the category of "significant limitation of use of a body function or system," although permanency is not required to be established to meet this category of serious injury, the limitation must be established to be "significant" (Ins. Law § 5102[d]). Evidence of herniated discs or bulging discs alone are not sufficient without further evidence of the extent and degree of physical limitation and its duration ( Forbes v Pazmino, 36 AD3d 901 [2nd Dept 2007]; Smith v Genardo , 27 AD3d 821 [3rd Dept 2006]; Knijinkov v Mushtag, 35 AD3d 545 [2nd Dept 2006]; Silkowski v Alvarez , 19 AD3d 476 [2nd Dept 2005]). Plaintiff has asserted that, in order to prove a prima facie case, defendant was required to establish objective testing that establishes that plaintiff had a full range of motion. Defendant has submitted both plaintiff's own deposition testimony and a doctor's evaluation based upon his examination of plaintiff and his review of her prior medical records, which are sufficient to meet defendant's burden because the testimony and records show that plaintiff's shoulder injury is not causally related to the accident and also establish that plaintiff did not suffer a significant limitation of use ( see Pugh v DeSantis, 2007 NY Slip Op. 01457 [3rd Dept 2007]; Kasim v Defretias , 28 AD3d 611 , 612-13 [2nd Dept 2006]; Smith v Genardo , 27 AD3d 821, 823 [3rd Dept 2006]; Brandt-Miller v. McArdle , 21 AD3d 1152 , 1154 [3rd Dept 2005]). In order to rebut defendant's proof, and in order to establish that a herniated disc or bulging disc constituted a serious injury under the significant limitation of use category, plaintiff was required to come forth with objective evidence of the extent and duration of her physical limitations ( Smith, 27 AD3d 821 [holding that a 10 degree limitation of use constituted a "mild, minor or slight limitation of use"]; Arjona v Calcano , 7 AD3d 279 , 280 [1st Dept 2004]; Forbes, 36 AD3d 901; Knijinkov, 35 AD3d 545; Silkowski, 19 AD3d 476).
Lastly, regarding the 90/180 day category of serious injury, plaintiff had to have been prevented from performing substantially all of her daily activities for 90 days out of the first 180 after the accident (Ins. Law § 5102[d]; Gaddy v Eyler, 79 NY2d 955, 958; Licari v Elliott, 57 NY2d 230, 236). "[T]he words substantially all' should be construed to mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment." ( Licari, 57 NY2d at 236; see also Forbes, 36 AD3d 901 [noting that "plaintiff failed to proffer competent medical evidence that she was unable to perform substantially all of her daily activities"]; Albano v. Onolfo , 36 AD3d 728 [2nd Dept 2007]; Hasner v Budnik , 35 AD3d 366 [2nd Dept 2006]; Short v Shawn, 188 AD2d 815 [2nd Dept 1992]).
In support of her motion for summary judgment, defendant relies on plaintiff's deposition testimony and on a medical evaluation performed on June 14, 2006 by Dr. Joel E. Mandel. Dr. Mandel noted that plaintiff first sought treatment for her right should on April 5, 2005, approximately seven weeks after the accident. She testified that she began experiencing right shoulder pain approximately three weeks after the accident. Dr. Mandel noted that plaintiff had an MRI performed on her right shoulder on May 11, 2005, which revealed a partial thickness tear of the supraspinatus tendon. Dr. Mandel expressed his opinion that had plaintiff suffered this injury in the accident, she would have felt immediate pain. He concluded that this injury was not caused in the accident and that the need for the surgery performed in June 2005 was not related to the accident.
Prior to plaintiff's surgery in June 2005, plaintiff, a veterinary technician, whose job included performing procedures on animals and restraining dogs, had missed one day of work, the day after the accident. She then returned to full duty. After her surgery in June 2005, plaintiff reports missing one week of work following the surgery, and then reporting back to work at light duty for approximately one month, after which time she returned to full duty.
Dr. Mandel reported that his examination in June 2006 revealed that plaintiff had "a complete painless range of all active and passive right shoulder motions" and that the examination of her right shoulder was "completely normal."
Defendant argues that even if there is a question of fact as to the causal relationship between the accident and the June 2005 shoulder surgery, plaintiff still fails to establish a serious injury under the Insurance Law. Plaintiff's verified bill of particulars set forth the manner in which plaintiff asserted she had sustained a serious injury under the Insurance Law. She alleged that she had sustained a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; and a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all material activities for not less than 90 days during the 180 days immediately following the accident.
Defendant asserts on her motion that plaintiff fails to meet any of these forms of serious injury because she did not experience significant limitations related to her daily living, her injury is not significant or permanent, she has not established the degree or duration of any of her alleged limitations, and there is no evidence that plaintiff was prevented from performing substantially all of her daily activities for a period of 90 days out of the first 180 days following the accident. Defendant asserts that plaintiff's subjective complaints of pain or self-imposed restrictions are insufficient to raise a question of fact.
Based upon defendant's proof, in the form of plaintiff's deposition testimony and Dr. Mandel's report, defendant has established a prima facie case that plaintiff did not sustain a serious injury within the definition of the Insurance Law. Defendant has cited to plaintiff's deposition testimony that she returned to full duty at work immediately following the accident, that she was engaged in her everyday activities when she first noticed shoulder pain almost one month after the accident, and that she missed one week of work following shoulder surgery in June 2005, and that she was able to return to full duty at work approximately one month after the accident. Dr. Mandel's report does not find a causal relationship between plaintiff's shoulder injury and the accident and further found that her right shoulder had a painless full range of motion during his examination in July 2006. In summary, the evidence submitted on defendant's motion established a prima facie case because there is no evidence based on plaintiff's own testimony that she experienced significant limitations on daily living or was prevented from performing substantially all of the material acts which constituted her usual and customary daily activities. Further, the medical evidence submitted by defendant establishes that the shoulder injury was not causally related to the accident and also that she has not suffered a permanent or significant limitation of use.
Plaintiff opposes defendant's motion and asserts that plaintiff has sustained a serious injury pursuant to the Insurance Law and that it is causally related to the accident, or that at the least there are questions of fact precluding summary judgment. Plaintiff asserts that the fact she suffered a torn ligament in her shoulder, her abnormal EMG and her MRI which showed herniation of the C5-C6 disc establishes that she suffered a serious injury. Plaintiff further references a report of Dr. Schweppe which note a causal relationship between plaintiff's disc herniation and the accident. The report, prepared to oppose the present motion, notes that "[t]he patient in fact made significant improvement over time without surgery and her symptoms were resolved by March of 2006." Plaintiff asserts that the report submitted by defendant from Dr. Mandel, and Dr. Mandel's conclusions regarding a lack of causation merely create a question of fact. Plaintiff refers to the Dr. Schweppe report which causally relates plaintiff's shoulder pain and surgery to the accident. The report notes that "[t]he patient continues to complain of intermittent pain in the shoulder, although she has essentially a full range of motion and full strength. Therefore, there is no permanent deficit present with regard to her shoulder function." Plaintiff asserts that her injuries, viewed separately and collectively, meet the statutory threshold for serious injury.
Defendant submitted a reply, which addresses the case law cited by plaintiff and asserts that plaintiff has not met her burden as a matter of law. Defendant asserts that each of the alleged injuries asserted by plaintiff are not sufficient to establish a serious injury without further evidence of the extent and duration of plaintiff's physical limitations. Defendant notes that there was no objective evidence presented regarding the extent and duration of plaintiff's disc or shoulder injuries and that these injuries did not occur contemporaneous with the accident. Plaintiff's doctor confirmed that she has no permanent deficit related to her shoulder. Defendant asserts that plaintiff has failed to set forth evidence sufficient to raise a question of fact as to whether plaintiff meets the statutory definition of serious injury.
Plaintiff correctly notes that differing expert opinions can create a triable question of fact. However, the situation in the present case is not dependent upon the differing expert opinions. The opinions of each party's doctor differ on the issue of causation. Plaintiff's doctor, although he states his opinion of a causal relationship between plaintiff's shoulder and neck injuries and the accident, fails to explain the delay between the accident and the onset of the injuries and also fails to distinguish plaintiff's prior right shoulder injury and degenerative findings related to her right shoulder ( see Pommells v Perez , 4 NY3d 566 ). However, even assuming causation exists, as set forth below, plaintiff is not able to establish a serious injury within the definition of Insurance Law § 5102(d).
In order to raise a question of fact sufficient to preclude summary judgment, plaintiff was required to present objective medical evidence in support of her claim of serious injury and cannot rely on her own affidavit. The objective medical evidence submitted by plaintiff is insufficient to raise a question of fact regarding whether plaintiff suffered a serious injury constituting a permanent consequential limitation of use of a body function or system because her own doctor notes that her shoulder injury did not result in a permanent deficit and that her disc injury was completely resolved by March 2006. Similarly, the objective medical evidence is insufficient to raise a question of fact regarding whether plaintiff suffered a serious injury constituting a significant limitation of use of a body function or system because it fails to establish the extent or duration of any of plaintiff's alleged physical limitations. Although such an injury need not be permanent, it does need to be significant and cannot be established by evidence of herniated discs or torn tendons alone, even if such injuries were found to be causally related to the accident. Lastly, plaintiff has failed to present proof that she was prevented from performing substantially all of the material acts of her daily activities for 90 days in the first 180 days following the accident. Plaintiff has submitted no medical evidence in this regard, her own testimony fails to meet this standard, and notably her affidavit submitted in opposition to the present motion fails to substantiate that her daily activities were interfered with to the requisite degree for the requisite time period.
Accordingly, it is
ORDERED, that defendant's motion for summary judgment is granted.
This shall constitute the decision and order of the Court. All papers are returned to the attorney for defendant, who is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry.