Clark v. Aquino

• Decision Date: 03 January 2014
• Citation: 113 A.D.3d 1076,978 N.Y.S.2d 546,2014 N.Y. Slip Op. 00006
• Parties: Nancy E. CLARK, Plaintiff–Appellant, v. Tiffany AQUINO, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 1076

978 N.Y.S.2d 546

2014 N.Y. Slip Op. 00006

Nancy E. CLARK, Plaintiff–Appellant,

v.Tiffany AQUINO, Defendant–Respondent.

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

Jan. 3, 2014.

Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Appellant.

Mura & Storm, PLLC, Buffalo (Kris E. Lawrence of Counsel), for Defendant–Respondent.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, SCONIERS, and WHALEN, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries she allegedly sustained when the vehicle she was driving was struck by a vehicle operated by defendant. In her bill of particulars, plaintiff alleged that, as a result of the accident, she sustained a serious injury under the permanent consequential limitation of use, significant limitation of use, and 90/180–day categories set forth in Insurance Law § 5102(d). We agree with plaintiff that Supreme Court erred in granting defendant's cross motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a qualifying injury under any of those categories.

With respect to plaintiff's alleged preexisting condition, defendant failed to meet her initial burden by submitting persuasive evidence establishing that plaintiff's “ ‘alleged injuries sustained in the accident were preexisting’ ... or, if they were, that they were not exacerbated by the accident” (Schreiber v. Krehbiel, 64 A.D.3d 1244, 1245, 883 N.Y.S.2d 426; see Pommells v. Perez, 4 N.Y.3d 566, 580, 797 N.Y.S.2d 380, 830 N.E.2d 278). Defendant's own expert physician concluded that plaintiff had sustained a cervical strain as a result of the accident and that she was “free of ongoing neck pain” prior to the accident, and the medical records support those conclusions ( see Fanti v. McLaren, 110 A.D.3d 1493, 1494, 972 N.Y.S.2d 807; Verkey v. Hebard, 99 A.D.3d 1205, 1206, 952 N.Y.S.2d 356; Ashquabe v. McConnell, 46 A.D.3d 1419, 1419, 848 N.Y.S.2d 794).

Defendant also failed to establish that she is entitled to summary judgment on the ground that plaintiff ceased treatment for her injuries, thereby “interrupt[ing] the chain of causation between the accident and claimed injur[ies]” (Pommells, 4 N.Y.3d at 572, 797 N.Y.S.2d 380, 830 N.E.2d 278). Here, plaintiff provided a “reasonable explanation” for the “cessation of all treatment” (id. at 574, 797 N.Y.S.2d 380, 830 N.E.2d 278). She was discharged from two different courses of physical therapy after her treatment providers noted that she had maximized her potential on those courses and recommended that she should continue with home exercises. Plaintiff was also dischargedfrom a course of chiropractic treatment, which had provided her with only temporary relief. Plaintiff also established that further physical therapy would have been palliative and not beneficial absent periodic Botox injections, the risks of which were discussed with her, along with the lack of any guarantee of success ( see id. at 576–577, 797 N.Y.S.2d 380, 830 N.E.2d 278; see Paz v. Wydrzynski, 41 A.D.3d 453, 453–454, 837 N.Y.S.2d 312). “A plaintiff need not incur the additional expense of consultation, treatment or therapy, merely to establish the seriousness or causal relation of his [or her] injury” (Pommells, 4 N.Y.3d at 577, 797 N.Y.S.2d 380, 830 N.E.2d 278).

With respect to the category of permanent consequential limitation of use, we conclude that defendant failed to eliminate all issues of fact whether plaintiff's injuries are permanent ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Indeed, the record establishes that the symptoms of plaintiff's alleged permanent consequential limitation of use have been of lengthy duration and “that no change in her condition [is] expected” (Hawkins v. Foshee, 245 A.D.2d 1091, 1091, 666 N.Y.S.2d 88; see Stearns v. O'Brien, 77 A.D.3d 1383, 1383–1384, 908 N.Y.S.2d 318; Thomas v. Hulslander, 233 A.D.2d 567, 567, 649 N.Y.S.2d 252).

We further conclude that defendant failed to meet her initial burden of establishing that plaintiff did not sustain a significant limitation of use ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197). Specifically, defendant failed to refute the allegation in the bill of particulars that plaintiff suffers from cervical dystonia ( see Bowen v. Dunn, 306 A.D.2d 929, 929, 762 N.Y.S.2d 465; Aleksiejuk v. Pell, 300 A.D.2d 1066, 1066–1067, 752 N.Y.S.2d 504). Furthermore, defendant's own submissions raise an issue of fact with respect to the category of significant limitation of use because they contain “an expert's designation of a numeric percentage” of plaintiff's significant restrictions in her range of motion in her cervical area (Perl v. Meher, 18 N.Y.3d 208, 217, 936 N.Y.S.2d 655, 960 N.E.2d 424), and “recite the tests used to ascertain the degree of plaintiff's loss of range of motion” (Weaver v. Town of Penfield, 68 A.D.3d 1782, 1785, 891 N.Y.S.2d 795). The medical records submitted by defendant also “relate the range of motion losses to ......