Schultz v. Von Voight

• Citation: 628 N.Y.S.2d 388,216 A.D.2d 451
• Parties: Robert SCHULTZ, et al., Respondents, v. Kathlyn VON VOIGHT, Appellant.
• Decision Date: 19 June 1995
• Court: New York Supreme Court Appellate Division

Page 388

628 N.Y.S.2d 388

216 A.D.2d 451

Robert SCHULTZ, et al., Respondents, v. Kathlyn VON VOIGHT, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 19, 1995.

Richard J. Inzerillo, P.C., Smithtown (Dennis M. Brown, of counsel), for appellant.

Perry Gary Fish, Brooklyn, for respondents.

Before BRACKEN, J.P., and ROSENBLATT, MILLER, KRAUSMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Werner, J.), dated August 26, 1993, which denied her motion for summary judgment dismissing the complaint. Justice Miller has been substituted for the late Justice Lawrence (see, 22 NYCRR 670.1[c].

ORDERED that the order is reversed, on the law, with costs, the motion for summary judgment is granted, and the complaint is dismissed.

The plaintiff Robert Schultz was in an automobile accident on March 8, 1990. The plaintiffs allege that, as a result of the accident, Mr. Schultz sustained the following injuries:

"Herniated disc at C4-C5; traumatic cervical hyperextension, hyperflexion injury with muscle spasm, radiculitis and paresthesia with cephalgia; cutaneous nerve injury; numbness in arms, restriction of motion of cervical and lumbo-sacral spine."

The plaintiffs allege that these injuries are permanent in nature and that Mr. Schultz has, therefore, suffered a serious injury within the meaning of Insurance Law § 5102(d).

The defendant moved for summary judgment dismissing the plaintiffs' complaint on the ground that the plaintiffs had failed to establish that Mr. Schultz had suffered a serious injury within the meaning of Insurance Law § 5102(d). The Supreme Court denied the motion. We now reverse.

We find that the evidence submitted by the defendant in support of her motion establishes, prima facie, that Mr. Schultz did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The defendant relied upon Mr. Schultz's deposition testimony, which reveals that he refused medical treatment following the accident and that he was not absent from work as a result of his alleged injuries. Complaining of a stiff neck, headaches, and some numbness in one arm, Mr. Schultz visited Dr. Tinari, a chiropractor, approximately one week after the accident. Dr. Tinari gave him rubdowns for his symptoms. Several weeks later, Mr. Schultz visited Dr. Rosen, a neurologist. After several tests, Dr. Rosen told Mr. Schultz that he had a slightly herniated disc. The defendant also relied on an affirmation from Dr. Bloom, who examined Mr. Schultz on May 12, 1992. Based upon his examination, Dr. Bloom concluded that Mr. Schultz "sustained a cervical sprain which had resolved. He also apparently sustained a medical antebrachial cutaneous nerve injury which has resolved."

We also find that the evidence submitted by the plaintiffs in opposition to the defendant's motion is insufficient to defeat the motion. The plaintiffs' evidence consisted solely of an affidavit from Dr. Tinari, Mr. Schultz's chiropractor. Although Dr. Tinari's prognosis was "chronic and guarded," his opinion was based on his examination of Mr. Schultz more than three years earlier and only 12 days after the accident. Moreover, the affidavit does not indicate that Mr. Schultz's alleged injuries were permanent. Thus, there is insufficient proof of the duration of Mr. Schultz's alleged injuries (see, Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102; Philpotts v. Petrovic, 160 A.D.2d 856, 554 N.Y.S.2d 289).

ROSENBLATT, MILLER and KRAUSMAN, JJ., concur.

GOLDSTEIN, Justice, dissents and votes to affirm in accordance with the following memorandum with which BRACKEN, Justice Presiding, concurs.

The present action arises out of an automobile accident that occurred on March 8, 1990. The plaintiff Robert Schultz alleged in his bill of particulars that, as a result of the accident, he suffered, inter alia, a herniated disc at C4-C5, and that his injuries "are believed to be permanent in nature," thereby satisfying the definition of a serious injury found in Insurance Law § 5102(d).

The defendant moved for summary judgment, alleging that Mr. Schultz had not suffered a serious injury within the meaning of Insurance Law § 5102(d). The evidence submitted by the defendant in support of her motion included the testimony of Mr. Schultz at an examination before trial in which he stated that, after the accident, he began to experience a stiff neck and numbness in his right arm. Before the accident, Mr. Schultz had sought treatment for "lower backaches," but he had never sought treatment for his upper back or right arm, and he had never sustained any injury to his right arm.

Twelve days after the accident, Mr. Schultz was examined by Dr. Tinari, a chiropractor, who noted in an unsworn report submitted in support of the defendant's motion for summary judgment that Mr. Schultz's "past medical history is noncontributory. Robert Schultz denies any prior problems or injuries to the neck or back." Dr. Tinari referred Mr. Schultz to Dr. Rosen a neurologist, who noted in an unsworn report submitted in support of the defendant's motion that, as a result of the accident, Mr. Schultz "suffered mild whiplash injury associated with neck pain and headaches lasting approximately three weeks." Dr. Rosen ordered a...