Armstrong v. Wolfe

• Decision Date: 22 October 1987
• Citation: 133 A.D.2d 957,520 N.Y.S.2d 466
• Parties: Sonia ARMSTRONG, Respondent, v. Larry E. WOLFE et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 466

520 N.Y.S.2d 466

133 A.D.2d 957

Sonia ARMSTRONG, Respondent, v. Larry E. WOLFE et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division,

Third Department.

Oct. 22, 1987.

Seymour Fox, Troy (Neil F. Woodworth, of counsel), Troy, for plaintiff-respondent.

Stephen R. Spring, Albany (Debra J. Willsey, of counsel) for appellants.

Before MAHONEY, P.J., and CASEY, MIKOLL, LEVINE and HARVEY, JJ.

HARVEY, Justice.

Appeal from an order of the Supreme Court (Cholakis, J.), entered May 15, 1986 in Rensselaer County, which denied a motion by defendants Larry E. Wolfe and Stott & Davis Motor Express, Inc. for summary judgment dismissing the complaint against them.

In May 1979, a truck owned by defendant Stott & Davis Motor Express, Inc. (Motor Express) and driven by defendant Larry E. Wolfe ran into the rear of an automobile in which plaintiff was a passenger. Plaintiff was taken to the emergency room of Auburn Memorial Hospital in the City of Auburn, Cayuga County, where she complained of back pain. She was discharged and advised to see her family doctor. Two days later she sought treatment for her discomfort at the emergency room of St. Mary's Hospital in the City of Troy, Rensselaer County. X rays revealed "minimal reversal of the normal [cervical] lordotic curve without evidence of fracture or subluxation". Approximately three months after the accident, on August 8, 1979, plaintiff visited an orthopedist, Dr. Agit Khanuja, who noted a "slight straightening of the normal cervical lordosis". A second examination of plaintiff in January 1980 by Khanuja revealed no objective evidence of injury and plaintiff was advised to do back-strengthening exercises.

Plaintiff commenced this action against, among others, defendants Motor Express and Wolfe (hereinafter defendants) in May 1982. In March 1986, defendants moved for summary judgment upon the ground that plaintiff had not suffered a "serious injury". At that time, plaintiff, who apparently had not sought medical advice regarding her alleged back pain in over six years, returned to Khanuja. The examination revealed "no [neurological] deficit in the upper or lower extremities" and X rays taken at this visit were "essentially negative". Ostensibly based on her complaints of continued pain, plaintiff was diagnosed as having a chronic back strain. She was advised to lose weight and do back-strengthening exercises. Defendants' motion for summary judgment was ultimately denied by Supreme Court. The court found a factual issue presented by plaintiff's allegations of continuing pain. This appeal followed.

We reverse. It is, of course, for the courts to decide in the first instance whether a plaintiff has made a prima facie showing of "serious injury" (see, e.g., Licari v. Elliott, 57 N.Y.2d 230, 237, 455 N.Y.S.2d 570, 441 N.E.2d 1088; Jones v. Sharpe, 99 A.D.2d 859, 472 N.Y.S.2d 779, affd. 63 N.Y.2d 645, 479 N.Y.S.2d 520, 468 N.E.2d 702). When a defendant's motion for summary judgment properly raises an issue as to whether a "serious injury" has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations (see, Kordana v. Pomellito, 121 A.D.2d 783, 784, 503 N.Y.S.2d 198, appeal dismissed 68 N.Y.2d 848, 508 N.Y.S.2d 425, 501 N.E.2d 33; cf., Vermette v. Kenworth Truck Co., 68 N.Y.2d 714, 717, 506 N.Y.S.2d 313, 497 N.E.2d 680; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Subjective complaints of pain which are unsupported by credible medical evidence are insufficient (Kordana v. Pomellito, supra, 121 A.D.2d at 784, 503 N.Y.S.2d 198; Dwyer v. Tracey, 105 A.D.2d 476, 480 N.Y.S.2d 781).

Here, defendants submitted in support of their motion for summary judgment, inter alia, a sworn affidavit from Dr. Nicholas Teresi, a physician who had also examined plaintiff. Teresi's examination revealed "normal curvature of the back and neck, no muscle spasm...