Cook v. Peterson

• Decision Date: 18 March 2016
• Citation: 137 A.D.3d 1594,28 N.Y.S.3d 501
• Parties: Curtis COOK, Plaintiff–Appellant, v. Alyssa S. PETERSON and Thomas M. Mike, Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1594
28 N.Y.S.3d 501

Curtis COOK, Plaintiff–Appellant,
v.
Alyssa S. PETERSON and Thomas M. Mike, Defendants–Respondents.

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

March 18, 2016.

28 N.Y.S.3d 503

Law Office of Jacob P. Welch, Corning (Anna Czarples of Counsel), for Plaintiff–Appellant.

Barth Sullivan Behr, Buffalo (Daniel K. Cartwright of Counsel), for Defendant–Respondent Alyssa S. Peterson.

Law Office of John Trop, Rochester (Tiffany L. D'Angelo of Counsel), for Defendant–Respondent Thomas M. Mike.

PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

In June 2009, plaintiff was a passenger in a vehicle operated by defendant Alyssa S. Peterson. The vehicle was struck by a vehicle operated by defendant Thomas M. Mike, who was proceeding straight

28 N.Y.S.3d 504

through an intersection when Peterson turned left in front of him. Plaintiff went directly to the hospital from the scene of the accident, complaining of pain in his head, neck, lower back and right shoulder. In the two weeks following the accident, plaintiff treated with an orthopedist for right shoulder pain and "occipital type headaches." The orthopedist diagnosed plaintiff with a "[c]ervical strain sprain and occipital headaches-posttraumatic," "[b]ilateral paracervical strainspost [ ] traumatic," and right shoulder tendonitis. Plaintiff was prescribed various medications, and the orthopedist "recommend [ed] postural improvements which [plaintiff could] do in a self managed fashion and [the] specific exercise was reviewed/demonstrated in the office" on July 8, 2009. Plaintiff did not see any physician again for complaints related to the accident until September 2010, when he sought treatment for back pain. It was not until March 2011 that plaintiff presented to his primary care physician for complaints of debilitating headaches. From that point forward, plaintiff was diagnosed with occipital neuralgia, underwent numerous occipital nerve block injections and ultimately, in July 2013, underwent surgery to have a permanent occipital nerve stimulator implanted, resulting in five scars measuring 2.5 to 3 inches each along the line of plaintiff's spine.

Plaintiff commenced this action in April 2012, i.e., before the stimulator surgery, alleging that he had sustained serious physical injuries in the motor vehicle accident and that he had sustained an economic loss greater than the basic economic loss. In his initial bill of particulars, plaintiff alleged serious injuries under the categories of "permanent loss of use and/or permanent consequential limitations of use and/or significant limitation of use of his neck and hip," and he further alleged that he sustained a serious injury under the 90/180–day category (see generally Insurance Law § 5102[d] ).

On February 17, 2014, Mike moved for summary judgment dismissing the complaint and any cross claims against him on the ground that Peterson's negligence was the sole proximate cause of the accident. On May 19, 2014, Peterson cross-moved for summary judgment dismissing the complaint against her on the ground that plaintiff did not sustain a qualifying serious injury. On June 3, 2014, Mike cross-moved for summary judgment dismissing the complaint and cross claims based on plaintiff's failure to meet the serious injury threshold, joining in Peterson's cross motion and incorporating all of the arguments and exhibits she submitted in support of her cross motion.

By amended verified bills of particulars dated May 30, 2014, i.e., before Mike's cross motion for summary judgment, plaintiff claimed that he had sustained a serious injury under the significant disfigurement category. He based that new claim on the scars that resulted from his stimulator surgery. Plaintiff opposed the motion and cross motions, but in his opposing papers he expressly withdrew his claim under the permanent loss of use category of serious injury.

Supreme Court granted the cross motions, awarding defendants summary judgment dismissing the complaint, and implicitly the cross claims, on the ground that plaintiff did not sustain a serious injury. The court found that defendants met their initial burden of establishing that plaintiff did not sustain a serious injury and that, even though there were conflicting medical opinions on the issue of serious injury, the gaps in plaintiff's treatment interrupted the chain of causation. Based on its determination, the court found that there was no reason to rule on Mike's motion, in

28 N.Y.S.3d 505

which he asserted that Peterson's negligence was the sole proximate cause of the accident. We now reverse.

With respect to the category of permanent consequential limitation of use, defendants met their initial burden on the cross motions by submitting, inter alia, the report of a medical expert concluding that the only injuries sustained by plaintiff in the accident were "[c]ervical and lumbar sprain /strain[s]," which would have "resolve[d] in weeks to months, but not years after the accident." We conclude, however, that plaintiff raised triable issues of fact by submitting the report of a medical expert who opined that plaintiff's occipital neuralgia was causally related to the accident and limited plaintiff "from being functional or basically doing anything." Plaintiff's expert contended that the permanent stimulator required to alleviate the pain caused from the occipital neuralgia resulted in a permanent consequential limitation of use of plaintiff's musculoskeletal system and limited all of plaintiff's activities. Those conflicting expert opinions create triable issues of fact requiring a trial (see DeAngelis v. Martens Farms, LLC, 104 A.D.3d 1125, 1126, 961 N.Y.S.2d 643 ; Pagels v. P.V.S. Chems., 266 A.D.2d 819, 819, 698 N.Y.S.2d 368 ). Indeed, "[i]t is well established that ‘conflicting expert opinions may not be resolved on a motion for summary judgment’ " (Corbett v. County of Onondaga, 291 A.D.2d 886, 887, 738 N.Y.S.2d 621 ).

Although Mike correctly contends that many of the medical reports and records submitted by plaintiff in opposition to the cross motions were unsworn and uncertified, we may consider...