Blanchard v. Wilcox

• Decision Date: 17 May 2001
• Citation: Blanchard v. Wilcox, 283 AD2d 821, 725 NYS2d 433 (N.Y. App. Div. 2001)
• Parties: WILLIAM H. BLANCHARD, Respondent,<BR>v.<BR>SAM WILCOX, Defendant, and JOHN F. GONYO, Appellant.
• Court: New York Supreme Court — Appellate Division

283 A.D.2d 821

725 N.Y.S.2d 433

WILLIAM H. BLANCHARD, Respondent,

v.SAM WILCOX, Defendant, and JOHN F. GONYO, Appellant.

Spain, J.

Decided May 17, 2001.

Mercure, J. P., Crew III, Carpinello and Mugglin, JJ., concur.

Spain, J.

Plaintiff alleges that he was injured on December 12, 1996 when the vehicle he was driving was struck by a vehicle owned by defendantJohn F. Gonyo(hereinafter defendant) and driven by defendant's daughter in the Town of Plattsburgh, Clinton County.Plaintiff commenced this negligence action in 1998, and later alleged in his bill of particulars that he sustained serious physical injuries within the meaning of Insurance Law § 5102 (d), including "neck and upper back pain, migraines daily, tenderness to palpation in the C3 to T10 region bilaterally along the spine, [and] tenderness in palpation over plaintiff's bilateral scapula in the region of his mid trapezius musculature."Defendant thereafter moved for summary judgment dismissing the complaint against him in its entirety on the ground that plaintiff failed to establish that he sustained a serious injury as defined in Insurance Law § 5102 (d).

Supreme Court held that defendant—on the motion—had met his initial burden of establishing that plaintiff did not sustain a statutory serious injury and granted the motion to the limited extent of dismissing plaintiff's claim of a "permanent consequential limitation of use of a body organ or member"(Insurance Law § 5102 [d]).Supreme Court concluded, however, that plaintiff had produced sufficient evidence to raise triable issues of fact as to whether he sustained a "significant limitation of use of a body function or system"(Insurance Law § 5102 [d]), as well as a "medically determined injury or impairment of a nonpermanent nature which prevents [plaintiff] from performing substantially all of the material acts which constitute [plaintiff's] usual and customary daily activities for not less than [90] days during the [180] days immediately following the [accident]"(Insurance Law § 5102 [d]).Defendant alone appeals.Because we conclude that plaintiff failed to establish that he sustained a "serious injury" as defined by any of the section 5102 (d) categories, defendant is entitled to summary judgment dismissing the complaint against him in its entirety.

It is undisputed that defendant sustained his initial evidentiary burden of presenting evidence in admissible form warranting a finding, as a matter of law, that plaintiff did not sustain an Insurance Law § 5102 (d) serious injury (see, Gaddy v Eyler,79 NY2d 955;La Rue v Tucker,247 AD2d 702).Defendant presented evidence that chest, cervical spine and lumbosacral spine X rays and a head CAT scan taken at the emergency room immediately after the accident were all negative, and an examination revealed no neurological deficits.A January 1998 MRI of plaintiff's neck and February 1998 electrophysiologic studies including EMG's and nerve conduction studies produced normal results.The affidavit memorializing a December 1998 independent medical examination by a Board-certified neurologist revealed no head or cranial nerve abnormalities or neurological deficits, noting only plaintiff's subjective complaints of extreme pain.This evidence amply satisfied defendant's initial burden of demonstrating that plaintiff did not sustain a serious injury.

In contrast, plaintiff's evidentiary showing in opposition to the foregoing was deficient in that it failed to set forth competent medical evidence based upon objective medical findings and tests to support his claim of serious injury and to connect the condition to the accident (see, Licari v Elliott,57 NY2d 230, 235, 239;Rose v Furgerson,281 AD2d 857, 859;cf., Evans v Hahn,255 AD2d 751).Other than his own EBT testimony regarding his treatment, injuries and limitations, plaintiff relied solely on the January 2000 affidavit of his treating physician, Honorio Dispo, who first examined him in September 1997, diagnosing a "musculoligamentous injury to the neck and interscapular area and post-traumatic bilateral carpel tunnel syndrome."Dispo opined in his affidavit, without explanation, that the injuries were causally related to the December 1996 motor vehicle accident and left plaintiff"temporarily totally disabled."Dispo's affidavit reflects that he treated plaintiff until March 1998, noted plaintiff's ongoing complaints of severe pain and reported at the follow-up visits continuing palpable spasms, multiple areas of painful trigger points, tightness on palpation, numbness on pin-prick of both arms and hands and limited range of motion, and continued his temporary total disability assessment.There is no indication that Dispo ever examined plaintiff after the last follow-up visit in March 1998 and before he prepared his January 2000 affidavit.Dispo concluded his 2½-page affidavit by reciting the entire statutory definition of "serious injury" found in Insurance Law § 5102 (d) and opining in conclusory fashion that plaintiff sustained an unspecified serious injury within that definition.

Plaintiff's submissions are insufficient to establish that he suffered a significant limitation of use of a body function or system or an injury in the 90/180-day category.Although Dispo's affidavit referred to limited range of motion, spasms, tightness and trigger points, it failed to provide any quantification or detail as to how these findings were objectively ascertained or to identify any diagnostic tests relied upon, merely observing that plaintiff"was able to move his neck only minimally"(see, Pantalone v Goodman,281 AD2d 790;Rose v Furgerson, supra;Hines v Capital Dist. Transp. Auth.,280 AD2d 768, 770;Gillick v Knightes,279 AD2d 752, 752-753;Evans v Beebe,267 AD2d 828, 829, lv denied94 NY2d 762;see also, Licari v Elliott, supra, at 239;cf., McCarthy v Perault,277 AD2d 664, 665-666;Barbagallo v Quackenbush,271...