French v. Symborski

• Decision Date: 13 June 2014
• Court: New York Supreme Court — Appellate Division
• Parties: James R. FRENCH, Plaintiff–Appellant, v. Daun M. SYMBORSKI and Frank L. Symborski, Defendants–Respondents.

118 A.D.3d 1251

987 N.Y.S.2d 724

2014 N.Y. Slip Op. 04286

James R. FRENCH, Plaintiff–Appellant,

v.Daun M. SYMBORSKI and Frank L. Symborski, Defendants–Respondents.

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

June 13, 2014.

Lynn Law Firm, LLP, Syracuse (Patricia A. Lynn–Ford of Counsel), for Plaintiff–Appellant.

Law Offices of Destin C. Santacrose, Buffalo (Elise Cassar of Counsel), for Defendants–Respondents.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO AND WHALEN, JJ.

MEMORANDUM:

In this personal injury action arising from a motor vehicle accident, plaintiff appeals from an order granting defendants' motion for summary judgment dismissingthe complaint. According to plaintiff, Supreme Court erred in determining that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d). We reject that contention. In support of the motion, defendants established that plaintiff's pain in his neck and shoulders was related to preexisting degenerative conditions and that there was no evidence of an acute traumatic injury arising from the subject accident ( see Spanos v. Fanto, 63 A.D.3d 1665, 1666, 879 N.Y.S.2d 878). Defendants also established that plaintiff sustained “only a mild injury as a result of the accident,” as opposed to a significant or permanent injury ( Gallo v. Rieske, 77 A.D.3d 1343, 1344, 909 N.Y.S.2d 256;see Beaton v. Jones, 50 A.D.3d 1500, 1501, 857 N.Y.S.2d 384). We note that, following the accident, plaintiff was able to walk around and, although he was taken to the hospital, he was released that same day with a prescription for pain medication. An X ray or CT scan taken at the hospital showed no broken bones or other abnormalities. We further note that plaintiff did not miss any work as a result of his injuries, and examinations by his own physicians showed that he regularly had a full range of motion in his neck and back, albeit with a degree of pain.

The burden of proof thus shifted to plaintiff “to come forward with evidence addressing defendant[s'] claimed lack of causation” ( Carrasco v. Mendez, 4 N.Y.3d 566, 580, 797 N.Y.S.2d 380, 830 N.E.2d 278;see Wilson v. Colosimo, 101 A.D.3d 1765, 1766, 959 N.Y.S.2d 301), and plaintiff failed to meet that burden. Contrary to plaintiff's contention, the affidavit of his treating physician was insufficient to raise a triable issue of fact. Although plaintiff's physician stated that plaintiff has a “disability related to his neck ... in the range of 30 to 60 percent,” she did not identify the range of motion tests she conducted upon plaintiff or otherwise explain how she arrived at that conclusion. Moreover, plaintiff's physician, who acknowledged plaintiff's preexisting conditions, “failed to specify how plaintiff's conditions were caused or further exacerbated” by the subject accident ( Hedgecock v. Pedro, 93 A.D.3d 1143, 1144, 940 N.Y.S.2d 394;see Webb v. Bock, 77 A.D.3d 1414, 1415, 909 N.Y.S.2d 241).

It is hereby ORDERED that the order so appealed from is affirmed without costs.

All concur except WHALEN, J., who dissents and votes to modify in accordance with the following Memorandum:

I respectfully dissent because I disagree with the majority's conclusion that defendants met their initial burden with respect to the 90/180–day category of serious injury ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). I would thus modify the order by denying in part defendants' motion for summary judgment and reinstating the complaint with respect to the 90/180–day category of serious injury within the meaning of Insurance Law § 5102(d).

Defendants' submissions failed to establish that plaintiff suffered only some “ ‘slight curtailment’ ” of his usual activities during no less than 90 of the 180 days immediately following the accident, inasmuch as they did not demonstrate what plaintiff's usual and customary daily activities were, much less that plaintiff could not perform substantially all of those activities ( Gaddy v. Eyler, 79 N.Y.2d 955, 958, 582 N.Y.S.2d 990, 591 N.E.2d 1176;see Paolini v. Sienkiewicz, 262 A.D.2d 1020, 1020, 691 N.Y.S.2d 836;Russell v. Knop, 202 A.D.2d 959, 960, 609 N.Y.S.2d 740). Defendants, instead, chose to rely almost exclusively on the fact that plaintiff did not miss any work as a result of his injuries. While plaintiff testified that he continued to work after the accident and took time off from work only to attend appointments with his doctors, plaintiff's duties at work were different after the accident than they were before it ( cf. Gaddy, 79 N.Y.2d at 958;Licari v. Elliott, 57 N.Y.2d 230, 238, 455 N.Y.S.2d 570, 441 N.E.2d 1088). At the time of the accident, plaintiff was a technician at a nuclear power plant and he performed calibrations, testing and repairs on equipment. Subsequent to the accident, he was assigned a supervisory position as an outage coordinator, i.e., a desk job. Plaintiff's daily and customary activities at work had changed and become much more sedentary. I further note that plaintiff's deposition occurred nearly three years after the accident, long after the relevant 180–day time frame ( see generally Lowell v. Peters, 3 A.D.3d 778, 780, 770 N.Y.S.2d 796). This fact is important because defendants' attorney asked plaintiff at the deposition, “Is there anything that you can't do today that you could do prior to the accident, any...