French v. Symborski

Appeal from an order of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.), entered March 4, 2013. The order, insofar as appealed from, granted the motion of defendants for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from is affirmed without costs.

Memorandum: In this personal injury action arising from a motor vehicle accident, plaintiff appeals from an order granting defendants’ motion for summary judgment dismissing the complaint. According to plaintiff, Supreme Court erred in determining that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). We reject that contention. In support of the motion, defendants established that plaintiffs pain in his neck and shoulders was related to preexisting degenerative conditions and that there was no evidence of an acute traumatic injury arising from the subject accident (see Spanos v Fanto, 63 AD3d 1665 , 1666 [2009]). Defendants also established that plaintiff sustained “only a mild injury as a result of the accident,” as opposed to a significant or permanent injury (Gallo v Rieske, 77 AD3d 1343 , 1344 [2010]; see Beaton v Jones, 50 AD3d 1500 , 1501 [2008]). We note that, following the

The burden of proof thus shifted to plaintiff “to come forward with evidence addressing defendants’] claimed lack of causation” (Carrasco v Mendez, 4 NY3d 566 , 580 [2005]; see Wilson v Colosimo, 101 AD3d 1765 , 1766 [2012]), and plaintiff failed to meet that burden. Contrary to plaintiffs contention, the affidavit of his treating physician was insufficient to raise a triable issue of fact. Although plaintiffs physician stated that plaintiff has a “disability related to his neck ... in the range of 30 to 60 percent,” she did not identify the range of motion tests she conducted upon plaintiff or otherwise explain how she arrived at that conclusion. Moreover, plaintiffs physician, who acknowledged plaintiffs preexisting conditions, “failed to specify how plaintiffs conditions were caused or further exacerbated” by the subject accident (Hedgecock v Pedro, 93 AD3d 1143 , 1144 [2012]; see Webb v Bock, 77 AD3d 1414 , 1415 [2010]).

All concur except Whalen, J., who dissents and votes to modify in accordance with the following memorandum.

(dissenting). I respectfully dissent because I disagree with the majority’s conclusion that defendants met their initial burden with respect to the 90/180-day category of serious injury (see generally Alvarez v Prospect Hosp., 68 NY2d 320 , 324 [1986]). I would thus modify the order by denying in part defendants’ motion for summary judgment and reinstating the complaint with respect to the 90/180-day category of serious injury within the meaning of Insurance Law § 5102 (d).

Defendants’ submissions failed to establish that plaintiff suffered only some “ ‘slight curtailment’ ” of his usual activities during no less than 90 of the 180 days immediately following the accident, inasmuch as they did not demonstrate what plaintiffs usual and customary daily activities were, much less that plaintiff could not perform substantially all of those activities (Gaddy v Eyler, 79 NY2d 955 , 958 [1992]; see Paolini v Sienkiewicz, 262 AD2d 1020 , 1020 [1999]; Russell v Knop, 202 AD2d 959 , 960 [1994]). Defendants, instead, chose to rely almost exclusively on the fact that plaintiff did not miss any work as a result of his injuries. While plaintiff testified that he continued to work after the accident and took time off from work only to

Additionally, when viewing the evidence in the light most favorable to plaintiff, the nonmoving party (see Nichols v Xerox Corp., 72 AD3d 1501 , 1502 [2010]), I note that there was evidence that plaintiffs work duties had changed significantly and, thus, a question of fact exists regarding whether plaintiff was able to perform his usual daily activities for 90 of the 180 days immediately following the accident.

I also note my concern with the majority’s apparent reliance upon the affirmed report of defendants’ medical expert, who opined that plaintiff suffers from a “multilevel degenerative” condition “with no indication of any acute traumatic injury” and “is obviously not disabled” in determining that defendants met their initial burden, while at the same time concluding that the affidavit of plaintiffs treating physician is insufficient to raise an issue of fact with respect to causation. Defendants’ expert based his opinion on the findings contained in what may be an unsworn MRI report, not included in the record, interpreting an MRI film that he did not review and that is also not included in the record. Plaintiff’s treating physician, on the other hand, disagreed with the assessment of defendants’ expert that there was no evidence of traumatic injury, based on her

Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.