Delaney v. Lewis

• Decision Date: 17 December 1998
• Citation: 682 N.Y.S.2d 270,256 A.D.2d 895
• Parties: 1998 N.Y. Slip Op. 11,266 Blanche L. DELANEY et al., Appellants, v. Alyce L. LEWIS, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 270

682 N.Y.S.2d 270

1998 N.Y. Slip Op. 11,266

Blanche L. DELANEY et al., Appellants, v. Alyce L. LEWIS, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 17, 1998.

Ronald Benjamin (Frederic E. Sober Jr. of counsel), Binghamton, for appellants.

O'Connor, Gacioch, Pope & Tait (Hugh B. Leonard of counsel), Binghamton, for respondent.

Before: MIKOLL, J.P., CREW, YESAWICH, SPAIN and GRAFFEO, JJ.

SPAIN, J.

Appeal from a judgment of the Supreme Court (Rose, J.), entered September 10, 1997 in Tioga County, which, upon reargument, granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff Blanche L. Delaney (hereinafter plaintiff) suffered personal injuries when the vehicle she was operating was rear ended by a car driven by defendant while plaintiff was stopped at an intersection in the Village of Owego, Tioga County. Thereafter, plaintiff and her husband, derivatively, commenced this action against defendant alleging that plaintiff suffered serious injuries, including debilitating headaches and damage to the cervical and thoracic areas of her spine. After issue was joined, defendant moved for summary judgment based on plaintiff not having sustained a serious injury within the meaning of Insurance Law § 5102. Supreme Court initially denied defendant's motion, without prejudice, because defendant's supporting medical statements were not in proper evidentiary form. Thereafter, defendant moved to reargue her motion for summary judgment and submitted a certified report from Sowbhagya Sonthineni, who conducted an independent medical examination (hereinafter IME) of plaintiff. Defendant also submitted certified medical records of plaintiff's treating physicians. In opposition to defendant's motion, plaintiffs submitted an attorney's affidavit with the transcript of plaintiff's deposition testimony and certified records from her physical therapist.

Supreme Court granted defendant's motion to reargue and, upon reargument, granted defendant's motion for summary judgment reasoning that defendant's evidence presented sufficient prima facie proof that plaintiff did not sustain a serious injury under Insurance Law § 5102. Further, Supreme Court determined that plaintiffs failed to meet their burden of submitting proof sufficient to create a question of fact as to whether plaintiff sustained a serious injury. Specifically, Supreme Court concluded that plaintiff's physical limitations due to severe pain were not supported by objective medical findings and diagnostic tests. Supreme Court also determined that "plaintiff's proof of an injury qualifying under the '90-out-of-180-day' category [of Insurance Law § 5102(d) ] [was] unconvincing", reasoning that plaintiff's restrictions on her usual and customary activities were not medically indicated but rather, were self imposed. Plaintiffs appeal.

We affirm. In our view, Supreme Court properly granted summary judgment to defendant. Initially, we reject plaintiffs' contention that defendant failed to make out a prima facie case that plaintiff had not sustained a serious injury within the meaning of Insurance Law § 5102(d). "As the moving party, defendant initially has the burden to establish that plaintiff did not sustain a 'serious injury' within the meaning of [Insurance Law § 5102(d) ]" (Tankersley v. Szesnat, 235 A.D.2d 1010, 1011, 653 N.Y.S.2d 184; see, Richards v. Toomey, 221 A.D.2d 754, 755, 633 N.Y.S.2d 846). A finding of significant limitation requires something more than a minor limitation of use (see, Broderick v. Spaeth, 241 A.D.2d 898, 660 N.Y.S.2d 232, lv. denied 91 N.Y.2d 805, 668 N.Y.S.2d 560, 691 N.E.2d 632; Kimball v. Baker, 174 A.D.2d 925, 926, 571 N.Y.S.2d 621; Gaddy v. Eyler, 167 A.D.2d 67, 72, 570 N.Y.S.2d 853, affd. 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176). Additionally, "subjective complaints of pain unsupported by credible or objective medical evidence or documentation [are] simply not enough to establish the threshold issue of serious injury" (Kimball v. Baker, ...