Pommells v. Perez

• Decision Date: 28 April 2005
• Citation: 830 N.E.2d 278,4 N.Y.3d 566
• Parties: Anthony POMMELLS, Appellant, v. Francisco R. PEREZ et al., Respondents. David G. Brown, Appellant, v. Athena D. Dunlap et al., Respondents. Miguel Carrasco, Appellant, v. Aurora Mendez, Respondent.
• Court: New York Court of Appeals Court of Appeals

830 N.E.2d 278

4 N.Y.3d 566

Anthony POMMELLS, Appellant, v. Francisco R. PEREZ et al., Respondents.

David G. Brown, Appellant, v. Athena D. Dunlap et al., Respondents.

Miguel Carrasco, Appellant, v. Aurora Mendez, Respondent.

Court of Appeals of New York.

April 28, 2005.

Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel) and Ripka, Rotter & King, LLP (Alan S. Ripka of counsel) for appellant in the first above-entitled action.

Norman Volk & Associates, New York City (Michael I. Josephs of counsel), for Francisco R. Perez, respondent in the first above-entitled action.

Galvano & Xanthakis, P.C., New York City (Matthew Kelly of counsel), for Rohit Latchman, respondent in the first above-entitled action.

Barry Siskin, New York City, for appellant in the second above-entitled action.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman, Evan H. Krinick and Stuart M. Bodoff of counsel), for Athena D. Dunlap and another, respondents in the second above-entitled action.

Curtis Vasile Devine & McElhenny, Merrick (Samantha B. Lansky of counsel), for Trucklease Corporation and others, respondents in the second above-entitled action.

Ginsberg & Katsorhis, P.C., Flushing (Nicole D. Katsorhis of counsel), for appellant in third above-entitled action.

Epstein, Grammatico, Frankini & Marotta, Woodbury (Mona Haas of counsel), for respondent in the third above-entitled action.

OPINION OF THE COURT

KAYE, Chief J.

In 1973 the Legislature enacted the "Comprehensive Automobile Insurance Reparations Act" (see L. 1973, ch. 13) — commonly known as the No-Fault Law — with the objective of promoting prompt resolution of injury claims, limiting cost to consumers and alleviating unnecessary burdens on the courts (see Governor's Mem approving L. 1973, ch 13, 1973 McKinney's Session Laws of N.Y., at 2335). Every car owner must carry automobile insurance, which will compensate injured parties for "basic economic loss" occasioned by the use or operation of that vehicle in New York State, irrespective of fault (Insurance Law § 5102[a]; § 5103). Only in the event of "serious injury" as defined in the statute, can a person initiate suit against the car owner or driver for damages caused by the accident (Insurance Law § 5104[a]).¹

No-Fault thus provides a compromise: prompt payment for basic economic loss to injured persons regardless of fault, in exchange for a limitation on litigation to cases involving serious injury (see Montgomery v. Daniels, 38 N.Y.2d 41, 50-51, 378 N.Y.S.2d 1, 340 N.E.2d 444 [1975]). Abuse nonetheless abounds. From 1992 to 2000, reports of No-Fault fraud rose more than 1,700% and constituted 75% of all automobile fraud reports received by the Insurance Department in 2000 (see Matter of Medical Socy. of State of N.Y. v. Serio, 100 N.Y.2d 854, 768 N.Y.S.2d 423, 800 N.E.2d 728 [2003]; see also State Farm Mut. Auto. Ins. Co. v. Mallela, 4 N.Y.3d 313, 794 N.Y.S.2d 700, 827 N.E.2d 758 [2005]). There is, similarly, abuse of the No-Fault Law in failing to separate "serious injury" cases, which may proceed in court, from the mountains of other auto accident claims, which may not. That "basic economic loss" has remained capped at $50,000 since 1973 provides incentive to litigate.

In the context of soft-tissue injuries involving complaints of pain that may be difficult to observe or quantify, deciding what is a "serious injury" can be particularly vexing. Additionally, whether there has been a "significant" limitation of use of a body function or system (the threshold statutory subcategory into which soft-tissue injury claims commonly fall) can itself be a complex, fact-laden determination. Many courts have approached injuries of this sort with a well-deserved skepticism. Indeed, failure to grant summary judgment even where the evidence justifies dismissal, burdens court dockets and impedes the resolution of legitimate claims. As a hint of the dimension of the situation, in less than three years, Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] — addressing similar issues — already has been cited more than 500 times in published decisions of our trial and appellate courts (representing only a small portion of the trial court activity).

In all three cases we decide today, as in Toure, plaintiffs claim to have suffered soft-tissue injuries — herniated discs — caused by car accidents, challenging us once again to articulate criteria that will enable serious injury claims to proceed yet prevent abuses that clog the courts and harm the public. We conclude that, even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury — such as a gap in treatment, an intervening medical problem or a preexisting condition — summary dismissal of the complaint may be appropriate.

Pommells v. Perez

Plaintiff Anthony Pommells was in a three-car accident on March 15, 1998. Days later, on his lawyer's referral, plaintiff visited the North Bronx Medical Center where he had a neurological exam and began a course of daily physical therapy, which he continued for six months, while he remained out of work. Plaintiff initiated suit on June 24, 1998, alleging that he suffered serious injury under Insurance Law § 5102(d).² Plaintiff sought no further medical treatment or review of his alleged accident-related injury for more than three years, when, on January 11, 2002, he consulted with the physician who furnished a report in this case.

In the course of his deposition, plaintiff revealed that in July 2000 — more than two years after the accident — he experienced severe pain in his back and side, sending him to a hospital emergency room where doctors inserted a stent in his kidney. After four weeks, doctors determined that surgery was necessary. Plaintiff's kidney was removed on August 18, 2000, and he again was out of work for six months.

Defendants sought summary judgment dismissing plaintiff's claim for failing to raise a triable issue of fact as to the existence of serious injury. In support of their motion, defendants submitted three doctors' reports. Neurologist Michael J. Carciente, based on an October 22, 2001 examination of plaintiff and plaintiff's medical records (including the unsworn MRI report and consideration of plaintiff's kidney problem), opined that there was "no evidence of a cervical or a lumbosacral spine radiculopathy" and "no evidence of a causally related neurologic disability." Radiologist Steven Brownstein, after also reviewing plaintiff's MRI, reported that plaintiff suffered "[n]o diffuse bulge or focal disc protrusion" and stated that he could detect only a muscle spasm in plaintiff. Radiologist Richard Rafal reported plaintiff suffered "[n]o gross acute pathology."

In response, plaintiff submitted an unsworn report by Dr. Leonid Slutsky³ from the March 1998 examination, which, based on a stated series of range of motion tests, revealed limitations in mobility and recommended a course of follow-up medical treatment, including physical therapy, chiropractic treatment, painkilling medication and neurological examinations. Plaintiff also offered a May 11, 1998 unsworn report by Dr. Robert Kronenberg relying on somatosensory evoked potentials (or SSEPs), and which, based on nerve stimulations and recorded limitations in movement, recommended physical therapy, but did not opine as to injury or causation.

Finally, plaintiff submitted the sworn report of orthopedist Louis C. Rose, based on the range of motion tests he performed on January 11, 2002 (detailed in the report), opining that plaintiff had "MRI documented evidence of a herniated lumbar disk with clinical evidence of radiculopathy" and was at risk of "development of osteoarthritic changes in an advanced fashion" due to "the destabilization and micromotion of the cervical and lumbar spine." Dr. Rose noted that plaintiff's symptoms were "causally related to the history as stated," which included both the 1998 car accident and plaintiff's past medical history, notably "[s]ignificant for right-sided nephrectomy which was undertaken on 8/18/00."

The trial court granted defendants' motion for summary dismissal and the Appellate Division affirmed, two Justices dissenting, bringing this appeal before us as a matter of right (CPLR 5601[a]). We now affirm.

Proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury. Defendants initially made a prima facie showing that plaintiff's alleged injuries did not satisfy No-Fault's serious injury threshold, leaving for plaintiff the burden to present objective medical proof of a serious injury causally related to the accident in order to survive summary dismissal. While plaintiff submitted objective evidence regarding physical limitations, his history revealed two interrupting factors: cessation of treatment six months after the accident and a kidney condition.

We first address the "gap in treatment" noted by the trial court and Appellate Division — the period of time between the end of plaintiff's physical therapy in 1998 and his visit to Dr. Rose to obtain an expert medical report in 2002.⁴ Defendants argue that the "gap" both renders the medical expert's later opinion on causation speculative and places into question the seriousness of the injuries themselves.

In the present case, the so-called gap in treatment was, in reality, a cessation of all treatment. Plaintiff ended his physical therapy six months after the accident and sought no other treatment until years later, when he visited Dr. Rose in connection with this case. While a cessation of treatment is not dispositive — the law surely does not require a record of needless treatment in order to survive summary judgment — a plaintiff who terminates therapeutic measures...