Hines v. CAPITAL DISTRICT TRANSPORTATION AUTHORITY

• Decision Date: 01 February 2001
• Citation: 719 N.Y.S.2d 777,280 A.D.2d 768
• Parties: MARY A. HINES, Respondent,<BR>v.<BR>CAPITAL DISTRICT TRANSPORTATION AUTHORITY, Appellant.
• Court: New York Supreme Court — Appellate Division

280 A.D.2d 768

719 N.Y.S.2d 777

MARY A. HINES, Respondent,

v.CAPITAL DISTRICT TRANSPORTATION AUTHORITY, Appellant.

Rose, J.

Decided February 1, 2001.

Cardona, P.J., Mercure, Spain and Carpinello, JJ., concur.

Rose, J.

Plaintiff commenced this action to recover money damages for injuries she allegedly sustained on February 10, 1994 when she slipped and fell on the steps of a bus owned and operated by defendant in the City of Albany.^[*]In her bill of particulars, plaintiff alleged that she sustained a qualifying injury under four of the categories of serious injury set forth in Insurance Law § 5102 (d): permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; and a medically determined injury or impairment that prevented her from performing substantially all of her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury.After depositions and an independent medical examination (hereinafter IME), defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury under any of the alleged categories.Supreme Court denied the motion, finding that triable issues of fact precluding summary judgment arose from the conflicting opinions of the parties' medical experts regarding the extent of plaintiff's injuries and her allegedly causally related inability to work for at least 90 of the 180 days following her fall.Defendant appeals.

Defendant contends that Supreme Court erred in denying its motion for summary judgment because plaintiff failed to present adequate proof of a qualifying serious injury."In seeking summary judgment on the issue of whether the serious injury threshold has been satisfied, the burden is initially on a defendant to establish as a matter of law that the plaintiff did not suffer a `serious injury' as that term is defined in Insurance Law § 5102 (d)[citation omitted]"(Anderson v Persell,272 AD2d 733).

In support of its motion, defendant submitted the affidavit and report of Richard Brooks, the board-certified neurologist who conducted an IME of plaintiff on February 12, 1999, together with some of plaintiff's medical records.Brooks concluded that there was no objective evidence of neurologic dysfunction and that plaintiff's subjective complaints of pain did not arise from any significant disease or dysfunction of the nervous system.Although Brooks offered no opinion as to whether plaintiff suffered from any orthopedic injury or limitation, the medical records of six different physicians who treated or examined her in 1994 and 1995, including two orthopedic surgeons, report back and neck pain in an overly histrionic patient, and diagnose chronic cervical strain, without relating any objective evidence of a permanent or consequential impairment causally connected to the accident in 1994.Thus, we find that defendant's moving papers were sufficient to meet its initial burden of proof (see, id., at 734) and shifted to plaintiff the burden of raising a triable issue of fact through competent medical evidence based upon objective medical findings and diagnostic tests (see, Barbagallo v Quackenbush,271 AD2d 724).

To meet this burden, plaintiff submitted a terse affidavit and the office notes of George Forrest, a physician who is board certified in physical rehabilitation medicine and had regularly treated plaintiff since May 11, 1994.Forrest averred that "a CT scan of [plaintiff's] cervical spine showed borderline stenosis at C3-4 and degenerative disc disease of L5-S1, which I am of the opinion were aggravated by this accident."Forrest also reported observing marked muscle spasms and very limited motion of plaintiff's cervical and lumbosacral spine approximately three months after the accident.However, at no time did Forrest quantify her limited range of motion.Forrest further opined that plaintiff sustained a chronic sprain of the cervical and lumbosacral spine, myofibrisitis and...