Farrington v. Go On Time Car Serv.

• Decision Date: 07 September 2010
• Citation: 76 A.D.3d 818,907 N.Y.S.2d 479
• Parties: Elline FARRINGTON, Plaintiff-Respondent, v. GO ON TIME CAR SERVICE, et al., Defendants, Miguel A. Chavez, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

907 N.Y.S.2d 479
76 A.D.3d 818

Elline FARRINGTON, Plaintiff-Respondent,
v.
GO ON TIME CAR SERVICE, et al., Defendants,
Miguel A. Chavez, Defendant-Appellant.

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

Sept. 7, 2010.

907 N.Y.S.2d 480

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Steven N. Feinman of counsel), for appellant.

Silbowitz, Garafola, Silbowitz & Schatz, New York (David M. Kert of counsel), for respondent.

TOM, J.P., MOSKOWITZ, RENWICK, DeGRASSE, MANZANET-DANIELS, JJ.

76 A.D.3d 818

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about September 16, 2009, which denied defendant Chavez's motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against that defendant.

The court properly concluded that defendant, through his medical experts, made a prima facie showing that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d) in her accident on January 13, 2008. Indeed, even where there is objective medical proof of an injury, summary dismissal of a serious injury claim may be appropriate when additional contributory factors, such as preexisting conditions, interrupt the chain of causation between the accident and the claimed injury ( see Pommells v. Perez, 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ). Here, plaintiff claims she suffered degenerative disc herniations and disc bulges in her lower back as a result of the accident, as well as injuries to her head, neck, shoulder and left knee. Chavez supported his motion with the reports of three physicians. Neurologist Michael J. Carciente, who examined plaintiff on March 18, 2009, opined that there were no objective findings such as myotomal weakness, dermatomal sensory deficits, asymmetric reflexes or atrophy supporting the presence of a cervical or lumbosacral radiculopathy. Dr. Carciente concluded that there was no evidence of a causally related neurological injury or disability, or the need for any specific neurological treatment in reference to the accident. Orthopedic surgeon John H. Buckner, who also examined plaintiff 14 months after the accident, concluded that her spinal examination was normal except for degenerative changes common for a person of her age, physique and preexisting scoliosis. In particular, Dr. Buckner noted that the ranges of motion of plaintiff's cervical spine were greater than most standard tables, while those

907 N.Y.S.2d 481

of her thoracic and lumbar spine were lower. He attributed the difference to preexisting idiopathic scoliosis unrelated to any injury. Dr.

76 A.D.3d 819

Buckner also opined that MRI findings with respect to plaintiff's left knee were indicative of a preexisting condition. In this respect, he also noted that the first medical report submitted for his review, which is dated a month after the accident, does not mention complaints of left knee pain or injury. David A. Fisher, a radiologist, reviewed MRIs of plaintiff's cervical and lumbar spine and left knee which were taken two months after the accident. As to the spinal MRIs, Dr. Fisher found degenerative changes consistent with a preexisting condition. He further opined that there was no radiographic evidence of recent traumatic or causally related injury to plaintiff's cervical or lumbar spine, or to the left knee. Hardly conclusory, the reports of all of defendants' examining physicians cite cervical, lumbar and left knee MRIs taken two months after the accident. In addition, the reports of Drs. Carciente and Buckner recite a review of reports prepared by plaintiff's treating physicians.

Notwithstanding Chavez's prima facie showing that plaintiff did not suffer a serious injury, the court denied his motion, finding the reports of plaintiff's physicians sufficient to enable her to survive the motion for summary judgment. This was error because plaintiff's physicians did not address the medical findings of preexisting degenerative conditions ( see e.g. Depena v. Sylla, 63 A.D.3d 504, 505, 880 N.Y.S.2d 641 [2009], lv. denied 13 N.Y.3d 706, 887 N.Y.S.2d 4, 915 N.E.2d 1182 [2009]; Valentin v. Pomilla, 59 A.D.3d 184, 873 N.Y.S.2d 537 [2009]; cf. Linton v. Nawaz, 62 A.D.3d 434, 879 N.Y.S.2d 82 [2009], affd. 14 N.Y.3d 821, 900 N.Y.S.2d 239, 926 N.E.2d 593 [2010] ). In addition, plaintiff's deposition testimony that she stayed home for a few days after the accident and lost no time from work demonstrates prima facie that she did not sustain a 90/180-day injury ( see Cruz v. Aponte, 60 A.D.3d 431, 432, 874 N.Y.S.2d 442 [2009] ), and the medical evidence she submitted in opposition to defendant's motion fails to substantiate any qualifying injury or impairment ( Nelson v. Distant, 308 A.D.2d 338, 339-340, 764 N.Y.S.2d 258 [2003] ).

All concur except MOSKOWITZ and MANZANET-DANIELS, JJ. who dissent in part in a memorandum by MANZANET-DANIELS, J. as follows:

MANZANET-DANIELS, J. (dissenting in part).

I take issue with the majority's conclusion that plaintiff's medical evidence failed to address defendant's alleged expert opinions that her claimed limitations are the result of preexisting conditions and not attributable to the January 13, 2008 accident.

Defendant's experts merely alleged, in entirely conclusory terms, that plaintiff's injuries were attributable to a "pre-existing condition." In this case there is no "persuasive" evidence of a pre-existing injury of the type described in Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005]. Because I believe these conclusory assertions do not satisfy defendant Chavez's burden on a motion

76 A.D.3d 820

to dismiss for lack of serious physical injury, the burden never shifted to plaintiff. Even assuming the burden had shifted to plaintiff, the affirmations of plaintiff's treating physicians and experts more than sufficed to raise a triable issue of fact. Plaintiff's treating physicians and experts, upon examination and after...