Catalano v. Kopmann

• Decision Date: 18 May 2010
• Citation: 73 A.D.3d 963,900 N.Y.S.2d 759
• Parties: Suzanne CATALANO, appellant, v. Madeline KOPMANN, respondent.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 759

73 A.D.3d 963

Suzanne CATALANO, appellant,

v.Madeline KOPMANN, respondent.

Supreme Court, Appellate Division, Second Department, New York.

May 18, 2010.

Levine & Wiss, PLLC, Mineola, N.Y. (Anthony A. Ferrante of counsel), for appellant.

Abamont & Associates (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Kathleen D. Foley], of counsel), for respondent.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lally, J.), entered April 9, 2009, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustaina serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendant met her prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). In opposition, the plaintiff failed to raise a triable issue of fact.

The submissions of Bonnie Corey, one of the plaintiff's treating chiropractors, failed to raise a triable issue of fact. Dr. Corey failed to express any opinion as to whether any injuries or limitations she noted were caused by the subject accident ( see Shaji v. City of New Rochelle, 66 A.D.3d 760, 886 N.Y.S.2d 764; Morris v. Edmond, 48 A.D.3d 432, 850 N.Y.S.2d 641; Itskovich v. Lichenstadter, 2 A.D.3d 406, 407, 767 N.Y.S.2d 859).

The submissions of Jeffrey Rosenberg, another chiropractor for the plaintiff, also failed to raise a triable issue of fact. Those submissions set forth no findings based on objective testing of the plaintiff. At most, those submissions noted the plaintiff's subjective complaints of pain ( see Sham v. B & P Chimney Cleaning & Repair Co., Inc., 71 A.D.3d 978, 900 N.Y.S.2d 72; Ambos v. New York City Tr. Auth., 71 A.D.3d 801, 895 N.Y.S.2d 879; House v. MTA Bus Co., 71 A.D.3d 732, 895 N.Y.S.2d 743).

The submissions of Roman Sorin, the plaintiff's treating physician, also failed to raise a triable issue of fact. Although Dr. Sorin examined the plaintiff seven months after the accident and noted during the examination significant limitations in the range of motion in the cervical and lumbar regions of the plaintiff's spine, and examined the plaintiff again in 2008 noting significant limitations in the cervical region of the plaintiff's spine only, neither he nor the plaintiff proffered competent medical evidence that revealed the existence of significant limitations in either region of the plaintiff's spine that were contemporaneous with the subject accident ( see Bleszcz v. Hiscock, 69 A.D.3d 890, 894 N.Y.S.2d 481; Taylor v. Flaherty, 65 A.D.3d 1328, 887 N.Y.S.2d 144; Fung v. Uddin, 60 A.D.3d 992, 876 N.Y.S.2d 469; Gould v. Ombrellino, 57 A.D.3d 608, 869 N.Y.S.2d 567; Kuchero v. Tabachnikov, 54 A.D.3d 729, 864 N.Y.S.2d 459; Ferraro v. Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408). Thus, the plaintiff did not raise a triable issue of fact as to whether she sustained a serious injury under the permanent loss, permanent consequential limitation of use, or significant limitation of use categories of Insurance Law § 5102(d) ( see Jack v. Acapulco Car Serv., Inc., 72 A.D.3d 646, 897 N.Y.S.2d 648; Bleszcz v. Hiscock, 69 A.D.3d at 891, 894 N.Y.S.2d 481; Taylor v. Flaherty, 65 A.D.3d at 1328-1329, 887 N.Y.S.2d 144; Ferraro v. Ridge Car Serv., 49 A.D.3d at 498, 854 N.Y.S.2d 408).

The evidence submitted by the plaintiff, which revealed the existence of herniated discs at C3-4 and C5-6, and a bulging disc at L4-5, on its own, did not raise a triable issue of fact. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc...