MacMillan v. Cleveland

• Decision Date: 10 March 2011
• Citation: 918 N.Y.S.2d 263,82 A.D.3d 1388
• Parties: Elizabeth MacMILLAN et al., Appellants, v. Josie A. CLEVELAND, Respondent.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 263

82 A.D.3d 1388

Elizabeth MacMILLAN et al., Appellants,

v.Josie A. CLEVELAND, Respondent.

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

March 10, 2011.

Roemer, Wallens, Gold & Mineaux, Albany (Matthew J. Kelly of counsel), for appellants.

Kaplan, Hanson, McCarthy, Adams, Finder & Fishbein, Albany (Gerald D. D'Amelia Jr. of counsel), for respondent.

Before: MERCURE, J.P., MALONE JR., KAVANAGH, GARRY and EGAN JR., JJ.

GARRY, J.

Appeal from an order of the Supreme Court(Devine, J.), entered November 6, 2009 in Schoharie County, which granted defendant's motion for summary judgment dismissing the complaint.

In October 2005, plaintiffElizabeth MacMillan(hereinafter plaintiff) was operating a motor vehicle when it was struck by defendant's vehicle.Plaintiffs subsequently commenced this action, claiming serious injury to plaintiff's back and neck within the meaning of Insurance Law § 5102(d).Following joinder of issue, defendant moved for summary judgment dismissing the complaint.Supreme Court granted the motion, prompting this appeal.Finding plaintiffs' evidence sufficient to presenta factual dispute relative to the significant limitation of use and the 90/180-day categories, we modify the order accordingly.¹

Defendant bore the initial burden to establish on a prima facie basis that plaintiff did not suffer a causally-related serious injury ( seeToure v. Avis Rent A Car Sys.,98 N.Y.2d 345, 352, 746 N.Y.S.2d 865, 774 N.E.2d 1197[2002];Wolff v. Schweitzer,56 A.D.3d 859, 860, 866 N.Y.S.2d 833[2008] ).To that end, defendant proffered plaintiff's medical records, which reflect a long history of back pain, including prior injuries in February, April and July 2005.This evidence of a preexisting condition shifted the burden to plaintiffs to " 'set forth competent medical evidence based upon objective medical findings and tests to support [the] claim of serious injury and to connect the condition to the accident' "( Tracy v. Tracy,69 A.D.3d 1218, 1219, 893 N.Y.S.2d 672[2010], quotingBlanchard v. Wilcox,283 A.D.2d 821, 822, 725 N.Y.S.2d 433[2001];seeCoston v. McGray,49 A.D.3d 934, 935, 853 N.Y.S.2d 206[2008] ).Plaintiffs were thus required to provide objective medical proof and quantitative or qualitative evidence establishing plaintiff's claimed condition and distinguishing her preexisting conditions from the claimed injury ( seePommells v. Perez,4 N.Y.3d 566, 571-572, 577-578, 797 N.Y.S.2d 380, 830 N.E.2d 278[2005];Falkner v. Hand,61 A.D.3d 1153, 1154-1155, 876 N.Y.S.2d 747[2009] ).

Plaintiff testified that, at the time of the subject collision, she was employed at an after-school program and volunteered as an emergency medical technician, despite her prior injuries and preexisting physical conditions.She was being treated for these preexisting conditions and injuries by her physician, Ze'ev Weitz.By affidavit, Weitz testified that in the course of his treatment rendered following the collision, he found plaintiff disabled from her work and customary activities for stated periods that ultimately exceeded four months, at which time he released her to return to light duty work.Weitz described specific limitations of use and motion in plaintiff's arm and averred that she"was restricted in all phases of motion in her neck and back."He further compared diagnostic MRI testing obtained before and after the subject collision and opined that this comparison revealed "a marked difference in deterioration and degree of injury of her lower back from L1 to L5."In sum, he concluded that the automobile accident was the cause of plaintiff's disabling condition and that she suffered a significant limitation of use and motion of her neck and lower back, as established by clinical examination and the objective proof of aggravation revealed by the MRI testing.

Notably, Weitz's opinion was based on his treatment and clinical observations made both before and after the subject collision.Nonetheless, his affidavit is insufficient, standing alone, to meet the applicable legal standards, as he failed to specify the percentage of the restrictions in motion or to set forth the underlying clinical tests supporting his stated observations ( seeToure v. Avis Rent A Car Sys.,98 N.Y.2d at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Tuna v. Babendererde,32 A.D.3d 574, 577, 819 N.Y.S.2d 613[2006] ).Plaintiffs made further submissions, however, which we find adequate to cure these deficiencies.A chiropractor who treated plaintiff for her preexisting condition prior to the collision and continuing thereafter stated by affidavit that plaintiff's symptoms "were substantially aggravated by the motor vehicle accident," and provided a recent assessment of plaintiff's cervical and lumbar limitations by specified degree, opining that the limitations were significant.Further, plaintiff's no-fault carrier had a medical evaluation performed by orthopedic surgeon Lawrence Schulman.Schulman performed a detailed analysis of plaintiff's prior history and opined that the subject collision "aggravated and contributed to her condition."An additional orthopedic evaluation was performed by Shashi Patel, upon request of the workers' compensation carrier relative to one of plaintiff's prior injuries.Among other stated findings, Patel noted that his examination revealed "moderate muscle spasm" in plaintiff's paravertebral musculature ( seeWeaver v. Howard,206 A.D.2d 793, 793, 615 N.Y.S.2d 122[1994] ).²Patel opined that plaintiff's preexisting degenerative condition was aggravated by a prior work-related injury, and then re-aggravated by the subject collision.He apportioned 50% of her continuing "moderate to marked disability referable to the lumbar spine" to each of these two occurrences.

Schulman and Patel each prepared detailed reports setting forth the findings of their respective evaluations, and each attributed disability to the collision after specifically considering the effects of plaintiff's preexisting condition.Notably, these physicians were retained for this very purpose by their respective insurance carriers, as the carriers would not be responsible for payment without a finding of causal relationship following analysis of the various relevant factors affecting plaintiff's physical condition.Further, defendant did not present any medical expert opinion refuting the evaluators' conclusions, but established her prima facie case solely by introducing the records of plaintiff's prior injuries and conditions.While evidence of this nature is sufficient to meet a party's initial burden of proof ( seeFranchini v. Palmieri,1 N.Y.3d 536, 537, 775 N.Y.S.2d 232, 807 N.E.2d 282[2003];Tuna v. Babendererde,32 A.D.3d at 575, 819 N.Y.S.2d 613), the opinions of Schulman and Patel regarding causation thus stand unrefuted by medical testimony in this record.Viewing this evidence in the light most favorable to plaintiffs( seeHildenbrand v. Chin,52 A.D.3d 1164, 1166, 861 N.Y.S.2d 438[2008] ), we find the proof sufficient to meet their burden to demonstrate the existence of triable issues of fact as to the significant limitation of use category of serious injury.

As to the 90/180-day category, plaintiffs were required to submit objective evidence of a "medically determined injury or impairment of a non-permanent nature which prevent[ed][plaintiff] from performing substantially all of the material acts which constitute [her] usual and customary daily activities" during at least 90 of the 180 days immediately after the accident (Insurance Law § 5102[d];seeNowak v. Breen,55 A.D.3d 1186, 1188, 866 N.Y.S.2d 423[2008] ).Triable issues of fact as tothis category are established by the previously-discussed medical evidence, as well as Weitz's affidavit testimony that plaintiff was not capable of performing her normal and customary activities for four months after the October 2005 accident, and plaintiff's affidavit describing her ongoing inability to drive and engage in her previous household activities ( seeSecore v. Allen,27 A.D.3d 825, 828, 811 N.Y.S.2d 170[2006];Monk v. Dupuis,287 A.D.2d 187, 191-192, 734 N.Y.S.2d 684[2001] ).

KAVANAGH and EGAN JR., JJ., concur.

MERCURE, J.P. (dissenting).

We respectfully dissent.The majority properly acknowledges that to satisfy the statutory serious injury threshold—under either the significant limitation of use or 90/180-day category—a plaintiff must submit objective medical evidence of injury ( see e.g.Toure v. Avis Rent A Car Sys.,98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197[2002] ).The majority fails to recognize, however, that "an expert's opinion unsupported by an objective basis [is] wholly speculative" and, thus, "frustrat[es]the legislative intent of the No-Fault Law to eliminate statutorily-insignificant injuries or frivolous claims"( id. at 351, 746 N.Y.S.2d 865, 774 N.E.2d 1197;seePommells v. Perez,4 N.Y.3d 566, 571-572, 797 N.Y.S.2d 380, 830 N.E.2d 278[2005] ).The undated affidavit of plaintiffElizabeth MacMillan's (hereinafter plaintiff) treating physician, Ze'ev Weitz, does not meet the required standard.

Weitz did not identify any diagnostic techniques that he used in making his determination regarding plaintiff's arm that were not dependent on her subjective complaints of pain ( seeTuna v. Babendererde,32 A.D.3d 574, 577, 819 N.Y.S.2d 613[2006];Burford v. Fabrizio,8 A.D.3d 784, 785, 777 N.Y.S.2d 810[2004] ).Nor did Weitz's affidavit specify the nature of the soft-tissue injury—a herniated disc—that plaintiffs now claim to have been shown by objective evidence, i.e., a...