Franchini v. Palmieri

Appeal from an order of the Supreme Court (Reilly, Jr., J.), entered February 28, 2002 in Schenectady County, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint.

Plaintiff Roseanne Franchini (hereinafter plaintiff) and her husband, derivatively, commenced this negligence action to recover for injuries she allegedly sustained in a motor vehicle accident on February 4, 1998. Supreme Court granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined in Insurance Law § 5102 (d). Plaintiffs appeal and, based on their failure to establish a causal relationship between plaintiffs injuries and the accident, we affirm.

In support of her summary judgment motion, defendant submitted plaintiffs medical records, which disclose a number of preexisting conditions and injuries that caused, and would

It then became incumbent on plaintiffs to present “competent medical evidence based upon objective medical findings and tests to support [the] claim of serious injury and to connect the condition to the accident” (Blanchard v Wilcox, 283 AD2d 821 , 822 [2001]; see Temple v Doherty, 301 AD2d 979 , 980 [2003]; Owad v Mayone, 299 AD2d 795 , 796 [2002]). To meet this burden, plaintiffs primarily relied upon the January 2002 affidavit of a chiropractor who began treating plaintiff immediately following the 1998 accident and last saw her on November 19, 1998. He diagnosed plaintiff as suffering from “cervicocranial syndrome, cervical intervertebral disc syndrome, lumbar intervertebral disc syndrome, facet syndrome, and lumbago/ low back syndrome.” He also opined that plaintiff sustained limitations of use of her neck and lower back of 100% and that they are “separate and distinct from any pre-existing injuries that [plaintiff] may have had.”

Focusing only on the opinion’s causal relationship deficiencies, we find it to be insufficient to raise an issue of fact as to the existence of a serious injury in any category. The chiropractor mentions none of plaintiff’s specific preexisting conditions, and it is not evident that he was aware of what they were. Significantly, plaintiff’s patient histories included in the chiropractor’s records make no reference to any prior accidents,

Mercure and Crew III, JJ., concur.

(dissenting). We respectfully dissent. The proponent of summary judgment faces the “high threshold” of establishing that “there must be only one conclusion that can be drawn from the undisputed facts” (Sanchez v State of New York, 99 NY2d 247 , 254 [2002]; see Andre v Pomeroy, 35 NY2d 361 , 364 [1974]). “The court’s role on a motion for summary judgment is to determine whether there is a material factual issue to be tried, not to resolve it” (Sommer v Federal Signal Corp., 79 NY2d 540 , 554 [1992] [citation omitted]). The affidavit of Claude Guerra, the treating chiropractor of plaintiff Roseanne Franchini (hereinafter plaintiff), addresses his treatment of plaintiff, the nature of her injuries, the objective evidence of her injuries, causation and her prior injuries. The majority

Where there is a preexisting injury that a defendant has established as being relevant to the injury in litigation, the failure of a plaintiffs expert “to indicate an awareness of the condition” can lead to the conclusion that the expert’s opinion on causation is fatally flawed even within the context of a motion for summary judgment (Kallicharan v Sooknanan, 282 AD2d 573 , 574 [2001]; see Pajda v Pedone, 303 AD2d 729 , 730 [2003]; Ginty v MacNamara, 300 AD2d 624 , 625 [2002]). Here, however, the record reveals that plaintiffs’ expert was aware of plaintiffs preexisting problems when he formed his opinion. Guerra relates the history of the accident given by plaintiff, opines that plaintiffs injury was “a direct result of the accident of February 4, 1998,” and then adds that her injury “is separate and distinct from any pre-existing injuries that the patient may have had, * * * any pre-existing injuries had resolved prior to the February 9, 1998 exam, and were not responsible for the symptoms the patient exhibited during my treatment.” While Guerra’s opinions are necessarily based upon plaintiff providing a correct factual history, and both Guerra’s opinions and plaintiffs history will, no doubt, be challenged in a probing cross-examination at trial, we believe that the evidence in the record regarding the cause of plaintiffs purported physical problems following the accident is sufficient to avoid summary judgment (see Boehm v Mack, 255 AD2d 749 , 750 [1998]). We would thus reverse that part of the order that granted defendant summary judgment dismissing the complaint.

Cardona, P.J., concurs. Ordered that the order is affirmed, with costs.