Owens v. Nolan

• Decision Date: 16 February 2000
• Citation: 702 N.Y.S.2d 481,269 A.D.2d 794
• Parties: JAMES L. OWENS, Respondent,<BR>v.<BR>WILLIAM F. NOLAN et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

269 A.D.2d 794

702 N.Y.S.2d 481

JAMES L. OWENS, Respondent,

v.WILLIAM F. NOLAN et al., Appellants, et al., Defendant.

Decided February 16, 2000.

Present — Pine, J. P., Wisner, Hurlbutt and Balio, JJ.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying the motion of William F. Nolan and Monica R. Meger and the cross motion of David M. Green and Galson Corporation (defendants) for summary judgment dismissing the first cause of action. Plaintiff commenced the present action seeking damages for injuries sustained in motor vehicle accidents that occurred in March 1994 and March 1995. Defendants are the owners and operators of the vehicles involved in the March 1994 accident, the subject of the first cause of action.

Defendants made "a prima facie showing of entitlement to judgment as a matter of law by coming forward with competent proof refuting the allegations of the complaint as amplified by the bill of particulars" (Balnys v Town of Baltimore, 160 AD2d 1136). With respect to the allegation that plaintiff sustained an injury that prevented him from performing substantially all of his usual and customary daily activities for 90 days during the 180 days immediately following the accident, defendants submitted testimony by plaintiff that his usual activities were not curtailed during the statutory period (see, Licari v Elliott, 57 NY2d 230, 236). With respect to the allegation that plaintiff sustained a permanent disability and significant limitation of use of the back and shoulder, defendants submitted the medical records of plaintiff's treatment following the accident (see, Vignola v Varrichio, 243 AD2d 464; Tankersley v Szesnat, 235 AD2d 1010, 1012, n 3; Torres v Micheletti, 208 AD2d 519), establishing that the claimed disability and restriction are "based upon subjective complaints of pain without objective medical findings" (McKnight v LaValle, 147 AD2d 902, 903, lv denied 74 NY2d 605).

In response, plaintiff failed to demonstrate the existence of a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956). Plaintiff's expert began treating plaintiff in March 1996, a year after the second accident. Although that expert diagnosed impingement syndrome of the left shoulder, a disc herniation at C6-7 and a lumbar strain, plaintiff failed to produce competent evidence that those injuries were sustained in the first accident (see, Stowe v Simmons, 253 AD2d 422, 423). Defendants are not liable for injuries sustained in the second accident that are distinguishable from the injuries sustained in the first accident (see, PJI 2:307).

The claimed shoulder impingement was detected after the second accident. Medical records show that in January 1995...