Charley v. Goss

54 A.D.3d 569, 863 N.Y.S.2d 205

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 2, 2008
• Status: Published

Opinions

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered May 9, 2007, which granted defendants Goss and Conroy’s motion for summary judgment dismissing the complaint as against them, affirmed, without costs.

This is a personal injury action which arises out of a motor vehicle accident that occurred on February 14, 2004 at the intersection of West 31st Street and Dyer Avenue in Manhattan. Plaintiff asserts that she was the front-seat passenger in a vehicle owned and operated by defendant Nelson when it came into contact with a vehicle owned by defendant Conroy and operated by defendant Goss.

* Plaintiff declined medical treatment at the scene and first sought medical attention, according to her deposition testimony, “a few days after” the incident.

Plaintiff subsequently commenced this action in February 2005, alleging that she had sustained a serious injury as defined in Insurance Law § 5102 (d). Defendants Goss and Conroy, after issue was joined and discovery conducted, moved for summary judgment dismissing the complaint as against them on the ground that plaintiff failed to meet the serious injury threshold. The motion court, in a decision and order entered on May 9, 2007, granted the motion and dismissed the complaint against the moving defendants, holding, inter alia, that “the plaintiff has failed to demonstrate an inability to perform substantially all of the material acts that constituted her usual and customary duties for 90 of the 180 days following the accident [and] offers contradictory reasons for her cessation of or gap in treatment.” Plaintiff testified that she stopped treatment because she could no longer afford it, as emphasized by the dissent, but subsequently seems to have reported to Dr. Post, who submitted a medical report in opposition to defendants’ motion, that there had been some improvement in her condition at the time treatment was discontinued, although some discomfort persisted. Plaintiff appeals, and we now affirm.

The Court of Appeals has often stated that the “ ‘legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries’ ” (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]). In that vein, the Court of Appeals has rejected the contention that the question of whether a plaintiff has sustained a serious injury is always a question of fact for the jury and, instead, has held that the issue of whether a claimed injury falls within the statutory definition of a “serious injury” is a question of law for the courts in the first instance, which may properly be decided on a motion for summary judgment (Licari v Elliott, 57 NY2d 230, 237 [1982]; Rubensccastro v Alfaro, 29 AD3d 436, 437 [2006]).

Once the proponent of a motion for summary judgment has set forth a prima facie case that the injury is not serious, the burden then shifts to plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that he/she did sustain such an injury, or that there are questions of fact as to whether the purported injury was “serious” (Toure, 98 NY2d at 350; Cortez v Manhattan Bible Church, 14 AD3d 466 [2005]). Moreover, “even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury— such as a gap in treatment, an intervening medical problem or a preexisting condition—summary dismissal of the complaint may be appropriate” (Pommells v Perez, 4 NY3d 566, 572 [2005] [emphasis added]; see Perez v Rodriguez, 25 AD3d 506, 508 [2006]).

Initially, we find that defendants shouldered their burden of establishing, prima facie, that plaintiff did not sustain a serious injury within the statutory definition. Defendants submitted the affirmed report of Dr. Charles Totero, a board certified orthopedic surgeon, who conducted an independent medical examination of plaintiff, during which he viewed various ranges of motion and performed a number of objective tests. Dr. Totero also viewed plaintiff’s prior medical records, including MRI films, and concluded, among other things, that “[mjotor and sensory are grossly intact. . . [t]here is negative Hawkins, negative drop arm, and negative impingement sign. Negative Neer sign. Motor and sensory to the upper extremities are intact.” Dr. Totero further opined that:

“MRIs, of the cervical and lumbar spines documented minimal degenerative changes with bulging discs only. No herniations or nerve root impingement was documented. Electrodiagnostic studies of the upper and lower extremities showed no evidence of lumbar or cervical radiculopathy. An MRI of the right shoulder documented pre-existing hypertrophic changes of the AC joint with a tendonitis present.

“The above orthopedic physical examination documents no objective orthopedic findings at this time. The claimant is currently working in her prior capacity. She is undergoing no active treatment at this time.

“It is my opinion, based on the objective evidence in this case, that no disability exists at this time as it pertains to the incident of 2/14/04 and the above diagnoses. She requires no further diagnostic testing and/or treatment, and may carry on normal work and daily activities, without restrictions.” (Emphasis added.)

Defendants also rely on plaintiff’s deposition testimony, in which she claims to have missed only two weeks of work (in contrast to her verified bill of particulars, which states she returned to work after only six days), and that she stopped all medical treatment after approximately four months.

Plaintiff, in response to defendants’ motion, submitted the affirmed medical report of Dr. Paul Post, who had one “orthopedic consultation” with plaintiff on December 11, 2006, almost three years after the accident. Initially, we find a review of Dr. Post’s report to be revealing in that Dr. Post, unlike Dr. Totero, reviewed only the narrative reports of plaintiffs MRI studies, and not the films themselves. Moreover, whereas Dr. Totero was provided with numerous medical records—including ultrasound and EKG reports, doctors’ files and summaries and medical records from Valerie Conner Acupuncture—which he incorporated into his conclusions, Dr. Post was apparently not given the benefit of that background information.

More importantly, Dr. Post’s report addresses plaintiff’s subjective complaints of recurring discomfort, tenderness and pain, but fails to list any objective orthopedic tests performed, and neglects to adequately, or in some cases, even peripherally explain plaintiff’s cessation of treatment, or the preexisting degenerative changes to plaintiffs cervical and lumbar spine and right shoulder delineated in Dr. Totero’s report. Dr. Post also fails to list any activity plaintiff was specifically prevented from performing which, in view of the fact that she returned to work approximately one week after the accident, demonstrates that she also had failed to satisfy the 90/180 limitation set forth in Insurance Law § 5102 (d). Concur—Friedman, Nardelli and Buckley, JJ.

The New York City Police Department accident report indicates that both drivers claimed the other ran a red light.