Melino v. Lauster
| Decision Date | 01 July 1993 |
| Citation | 599 N.Y.S.2d 713,195 A.D.2d 653 |
| Parties | Michelle MELINO, Respondent, v. Rhonda L. LAUSTER et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Kris T. Jackstadt (Edward B. Downey, of counsel), Albany, for appellants.
Lewis & Stanzione (Ralph C. Lewis Jr., of counsel), Catskill, for respondent.
Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and HARVEY, JJ.
Appeal from an order of the Supreme Court (Cobb, J.), entered June 10, 1992 in Columbia County, which, inter alia, denied defendants' cross motion for summary judgment dismissing the complaint.
The only issue that need be addressed on this appeal is whether Supreme Court erred in denying defendants' cross motion for summary judgment dismissing the complaint upon the ground that plaintiff failed to sustain a serious injury as defined in Insurance Law § 5102(d). We conclude that Supreme Court erred in denying the cross motion and should, indeed, have dismissed the complaint. We accordingly modify.
The competent evidence submitted on defendants' cross motion showed that plaintiff sustained the injuries forming the basis for this action on July 20, 1987, when the car that she was operating was struck in the rear by a van operated by defendant Rhonda L. Lauster. Plaintiff was wearing a seat belt and shoulder harness and there is no indication that the impact caused her to strike any part of the interior of her car. In the hours following the accident, plaintiff experienced no pain or other problems and sought no medical treatment. Upon arising the following day, however, plaintiff experienced stiffness, a headache and nausea. She went back to bed and "mainly stayed in bed for about two weeks" thereafter.
Plaintiff first saw her treating orthopedist, William Kite, on August 18, 1987 and was examined by him on seven subsequent occasions through January 31, 1989. Plaintiff's initial complaints were of headaches and pain in the lower back, neck and arm; by February 1992 only the lower back pain, sometimes radiating into her legs, persisted. Although the accident took place the month following plaintiff's high school graduation and prevented her from performing her summer job as a secretary for her family's construction business, she was able to go back to school in the fall of 1987 and pursue a full-time course of college study culminating in an Associate's degree in May 1989. At the time of plaintiff's October 1989 examination before trial, she had just commenced employment as a restaurant hostess.
On their motion, defendants submitted affidavits of examining neurologists Dominic Sette-Ducati and Mark Dentinger that refute the claim in plaintiff's bill of particulars that plaintiff sustained "permanent consequential limitation of a body function with herniation of disc at L4-5 and C7-T1" or, if plaintiff's injury or impairment is found to be nonpermanent in nature, that "plaintiff [was prevented] from performing substantially all the material acts which constituted [her] usual and customary daily activities for the period of July 20, 1987 to [January 23, 1989]". Significantly, Sette-Ducati and Dentinger opine that, at the time of their respective examinations of plaintiff on November 4, 1987 and December 29, 1989, there was "no evidence to suggest a cervical or lumbar disc" or of "structural neurologic disease involving the spinal cord, nerve roots or peripheral nerves nor * * * any indication of neurologic deficit or muscle spasm" to substantiate plaintiff's claims of pain. Clearly, this medical opinion, coupled with plaintiff's bill of particulars and the transcript of her deposition testimony, satisfied defendants' initial burden of presenting evidence in admissible form establishing prima facie that plaintiff did not sustain a serious injury; the burden thereby shifted to plaintiff to come forward with evidence that she sustained a serious injury within one or more of the categories claimed in her bill of particulars (see, Lanuto v. Constantine, 192 A.D.2d 989, 990, 596 N.Y.S.2d 944.
In opposition to the motion, plaintiff presented her own affidavit as well as those of Kite and her attorney. The primary theme of plaintiff's affidavit is that she has experienced persistent lower back pain from the time of the accident. In his affidavit, Kite echoes this theme and sets forth some objective findings, including decreased leg-raising ability, hypalgesia, muscle weakness and decreased reflexes, to support it. Acknowledging that neither X rays nor a CAT scan substantiated his initial impression of a herniated disc, Kite ultimately opines that plaintiff suffered a "severe sprain/strain of the cervical and lumbar region of her back".
Notably absent from plaintiff's submission, however, is any competent medical opinion that plaintiff suffered a meaningful impairment or limitation as the result of her pain. As noted, within two months of plaintiff's injury she was engaged in her anticipated college studies, carrying a full course load of 12 to 15 credit hours per semester and attaining an overall grade point average of 3.17. Although plaintiff states in conclusory fashion that she was unable to ski, skate or do aerobics, she acknowledges that she did not try these activities and there is no medical evidence confirming her inability to engage in them (see, Gaddy v. Eyler, 79 N.Y.2d 955, 957-958, 582 N.Y.S.2d 990, 591 N.E.2d 1176; Crane v. Richard, 180 A.D.2d 706, 707, 579 N.Y.S.2d 736). Similarly, Kite's office notes make frequent reference to an unspecified limitation in the range of motion of plaintiff's neck and back, but no effort is made to translate this constraint to plaintiff's daily activities (see, Lanuto v. Constantine, supra, 192 A.D.2d at 991, 596 N.Y.S.2d 944; Hemmes v. Twedt, 180 A.D.2d 925, 580 N.Y.S.2d 510). Even the admonition in September 1987 that plaintiff avoid bending and lifting and indication that plaintiff "remain[ed] disabled for work" in January 1988 are meaningless in view of the fact that plaintiff was at the time a successful full-time college student.
Under the circumstances, we have no alternative but to reject Kite's opinion that plaintiff was disabled from performing her normal and customary daily activities for more...
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