Dabiere v. Yager

• Decision Date: 05 September 2002
• Citation: 297 A.D.2d 831,748 N.Y.S.2d 38
• Parties: CLEMENT DABIERE et al., Appellants,<BR>v.<BR>MARK YAGER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

297 A.D.2d 831

748 N.Y.S.2d 38

CLEMENT DABIERE et al., Appellants,

v.MARK YAGER et al., Respondents.

Carpinello, J.

Decided September 5, 2002.

Crew III, J.P., Mugglin and Rose, JJ., concur.

Carpinello, J.

Plaintiffs commenced this action to recover for personal injuries sustained in an August 1999 automobile accident. After joinder of issue and discovery, defendants moved for partial summary judgment dismissing the complaint insofar as it asserted claims based upon personal injuries allegedly sustained by plaintiff Clement Dabiere (hereinafter plaintiff). Concluding that the evidence regarding the cervical injuries claimed by plaintiff established that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), Supreme Court granted the motion. Plaintiffs appeal.

In support of their motion, defendants submitted the affidavit and report of an orthopedic surgeon who conducted an independent medical examination of plaintiff. The examination revealed the existence of extensive degenerative arthritic changes in plaintiff's neck and back and that plaintiff had sustained several neck or back injuries prior to the accident, including a broken neck in 1995. Defendants' expert opined that although plaintiff may have suffered minimal soft tissue injury in the accident, the injury had healed and had no lasting effect on the underlying degenerative arthritic process. We agree with Supreme Court that the evidence is sufficient to meet defendants' burden as the proponent of the motion and, therefore, plaintiff was required to support his claim of serious injury by competent medical evidence based on objective medical findings and diagnostic tests (see Hines v Capital Dist. Transp. Auth., 280 AD2d 768; Tankersley v Szesnat, 235 AD2d 1010).

Plaintiff's treating physician opined that the accident exacerbated plaintiff's preexisting degenerative condition, resulting in permanent pain which was unlikely to improve. However, the opinion is not based on an observed condition which the expert causally related to the accident. Instead, the expert based his opinion on the conclusion that, despite plaintiff's preexisting cervical and lumbar condition, "he was actually doing reasonably well" prior to the accident. Although an expert's qualitative assessment of a plaintiff's condition may suffice to demonstrate the extent or degree of physical limitation, that assessment must be supported by objective proof of the injury in order to satisfy the statutory threshold (see Toure v Avis Rent A Car Sys., 98 NY2d 345). Without such proof, the opinion "may be wholly speculative" (id. at 351). Thus, in the absence of objective evidence establishing the aggravation as opposed to the underlying condition, plaintiffs' submission is insufficient to demonstrate serious injury under the permanent loss of use, consequential limitation of use or significant limitation of use categories (see Hines v Capital Dist. Transp. Auth., supra at 770).

We reach the same conclusion with regard to the 90/180 category of serious injury. To prevail on this category, plaintiff was required not only to show that his usual activities were curtailed "to a great extent rather than some slight curtailment" (Licari v Elliott, 57 NY2d 230, 236), but also to submit medical evidence based on objective medical findings of a medically determined injury or impairment of a nonpermanent nature which caused the alleged limitations on his daily activities (see Monk v Dupuis, 287 AD2d 187, 191). Plaintiffs' medical evidence does not satisfy the latter requirement, particularly in the absence of evidence that the restrictions on plaintiff's activities were medically indicated and causally related to the accident (see Blanchard v Wilcox, 283 AD2d 821, 824). Instead of correlating the curtailment in plaintiff's activities to an injury sustained in the accident, plaintiffs' expert relied on that curtailment to conclude that the accident must have exacerbated the preexisting degenerative condition. Accordingly, we agree with Supreme Court that the expert's conclusory opinion is insufficient to defeat defendants' motion.

Lahtinen, J. (dissenting).

I respectfully dissent. Viewing the evidence in the light most favorable to plaintiffs, I believe that sufficient factual issues exist to avoid summary judgment. Plaintiff Clement Dabiere (hereinafter plaintiff) was examined in the emergency room on the date of...