Carota v. Wu

• Decision Date: 07 June 2001
• Citation: 284 A.D.2d 614,725 N.Y.S.2d 453
• Parties: DOMINIC P. CAROTA, Appellant,<BR>v.<BR>AMY WU et al., Respondents.
• Court: New York Supreme Court — Appellate Division

284 A.D.2d 614

725 N.Y.S.2d 453

DOMINIC P. CAROTA, Appellant,

v.AMY WU et al., Respondents.

Peters, J.

Decided June 7, 2001.

Cardona, P. J., Crew III, Spain and Lahtinen, JJ., concur.

Peters, J.

As a result of a multicar collision on August 8, 1997, plaintiff commenced this personal injury action seeking compensation for his injuries. Upon completion of discovery, defendants moved for summary judgment seeking dismissal of the complaint contending, inter alia, that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d).^[*] Supreme Court granted the relief and subsequently denied plaintiff's request to renew and/or reargue the determination based upon an additional medical report of his treating physician. Plaintiff appeals from both orders.

As here relevant, plaintiff contends that the injuries he sustained to his neck constitute a permanent loss of use and/or a permanent consequential or significant limitation thereof or an impairment which prevented him from performing substantially all of his daily activities for at least 90 of the 180 days following his injury (see, Insurance Law § 5102 [d]). Defendants, as movants, relied upon both plaintiff's pretrial testimony describing the minimal effect that the accident had on his work schedule, exercise regimen or daily routine, as well as a report by Cyril Shea, an orthopedic surgeon. After conducting an independent medical examination of plaintiff and reviewing all of his medical records, physical therapy notes, X rays of the cervical spine and relevant pleadings, Shea concluded that there were no objective signs of an impairment related to the subject accident, instead noting only a continued limitation of cervical motion which he viewed as disproportionate to the injury sustained. Acknowledging abnormality of the C5 vertebrae, he opined that it was developmental in origin.

With such proffer sufficient (see, Barbagallo v Quackenbush, 271 AD2d 724, 725; Wiley v Bednar, 261 AD2d 679, 680), "the burden * * * shifted to plaintiff to submit competent medical evidence based upon objective medical findings and diagnostic tests to raise an issue of fact" (Barbagallo v Quackenbush, supra, at 725; see, Rath v Shafer, 267 AD2d 565). Plaintiff's showing was comprised of an affidavit by his osteopath and roommate, Stephen Sipperly, who treated him on the date of the accident and referred him to John Whalen, an orthopedic surgeon. Plaintiff did not treat with Sipperly again until November 30, 1999, 20 months after plaintiff's last visit with Whalen. Sipperly opined that plaintiff's neck revealed cervical muscle spasms which radiated into the occipital area down to the shoulder and were tender to the touch. He further noted "several trigger points in the left side, which are very sensitive." His diagnosis was a cervical, thoracic and lumbar spasmstrain secondary to the motor vehicle accident. At his second examination of plaintiff, Sipperly noted that plaintiff's neck was painful and tender to palpation over the vertebrae at the C4-C5 level with markedly diminished range of normal neck extension. Finding "observations of objective signs documenting [plaintiff's] complaints of pain, including paravertelral [sic] muscle spasms, and multiple trigger points observable on palpation," he diagnosed plaintiff with an aggravation of a preexisting compression fracture of his C5 vertebrae and found such injury to be permanent and causally related to the subject motor vehicle accident.

Plaintiff treated with Whalen on six separate occasions. Whalen's diagnosis of cervical and lumbar sprain was made after his review of X rays completed on August 27, 1997, along with his physical examination of plaintiff on September 2, 1997. Whalen noted, however, that the X rays indicated a preexisting compression deformity at C5 with no other significant abnormalities or other objective injuries. The initial cervical spine radiographs performed in Whalen's office, as well as all subsequent radiographs, confirmed this assessment. On the October 21, 1997 visit, Whalen reviewed the report of an MRI completed on October 7, 1997 which failed to reveal a fracture, herniated disc or spiral stenosis; a bone scan performed on the same date confirmed no fracture of the cervical spine. Returning to Whalen on December 9, 1997 with fairly good cervical range of motion, plaintiff was assessed with continued pain and cervical sprain. Whalen reported that the increased flexion at C4-C5 was due to the compression deformity of the vertebrae "which was old and did not light up on the bone scan." At plaintiff's last office visit on February 19, 1998, Whalen noted that plaintiff's flexion was improved and, although he assessed plaintiff with continued pain and cervical sprain, he did...