Spencer v. Golden Eagle Inc.

• Decision Date: 24 March 2011
• Citation: 82 A.D.3d 589,920 N.Y.S.2d 24,2011 N.Y. Slip Op. 02113
• Parties: Teresa SPENCER, et al., Plaintiffs–Respondents,v.GOLDEN EAGLE, INC., et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 589

920 N.Y.S.2d 24

2011 N.Y. Slip Op. 02113

Teresa SPENCER, et al., Plaintiffs–Respondents,

v.GOLDEN EAGLE, INC., et al., Defendants–Appellants.

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

March 24, 2011.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellants.Spiegel & Barbato, LLP., Bronx (Brian C. Mardon of counsel), for respondents.GONZALEZ, P.J., TOM, CATTERSON, MOSKOWITZ, RICHTER, JJ.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered March 22, 2010, which, in this action seeking damages for personal injuries suffered in a motor vehicle accident, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs Teresa Spencer and Lisa Spencer, her sister, allege that they sustained “serious” injuries pursuant to Insurance Law § 5102(d) when their car was struck in the rear by a vehicle owned and/or operated by defendants. Specifically, they claim “permanent consequential limitation of use of a body organ or member” and/or “significant limitation of use of a body function or system” and/or non-permanent “medically determined injury or impairment ... [preventing them] from performing substantially all of ... [their] usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”

By notice of motion dated February 17, 2009, defendants moved for summary judgment dismissing the complaint against them. By decision and order dated March 11, 2010, the trial court denied defendants' motion on grounds that, inter alia, defendants' orthopedic expert “failed to disclose the testing methods used to determine that plaintiffs' ranges of motion were essentially normal.” We affirm the motion court's denial of summary judgment, although we do so on different grounds.

To prevail on a motion for summary judgment, the defendant has the initial burden to present competent evidence showing that the plaintiff has not suffered a “serious injury” ( see Rodriguez v. Goldstein, 182 A.D.2d 396, 582 N.Y.S.2d 395 [1992] ). Such evidence includes “ ‘affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim’ ” ( Shinn v. Catanzaro, 1 A.D.3d 195, 197, 767 N.Y.S.2d 88 [2003], quoting Grossman v. Wright, 268 A.D.2d 79, 84, 707 N.Y.S.2d 233 [2000] ). Where there is objective proof of injury, the defendant may meet his burden upon the submission of expert affidavits indicating that plaintiff's injury was caused by a pre-existing condition and not the accident ( Farrington v. Go On Time Car Serv., 76 A.D.3d 818, 907 N.Y.S.2d 479 [2010], citing Pommells v. Perez, 4 N.Y.3d 566, 830 N.E.2d 278 [2005] ).

Once the defendant meets his initial burden, the plaintiff must then demonstrate a triable issue of fact as to whether he or she sustained a serious injury ( see Shinn, 1 A.D.3d at 197, 767 N.Y.S.2d 88). A plaintiff's expert may provide a qualitative assessment that has an objective basis and compares plaintiff's limitations with normal function in the context of the limb or body system's use and purpose, or a quantitative assessment that assigns a numeric percentage to plaintiff's loss of range of motion ( Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350–351, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ). Further, where the defendant has established a pre-existing condition, the plaintiff's expert must address causation ( see Valentin v. Pomilla, 59 A.D.3d 184, 873 N.Y.S.2d 537 [2009]; Style v. Joseph, 32 A.D.3d 212, 214, 820 N.Y.S.2d 26 [2006] ).

Here, in support of their motion, defendants submitted the affirmations of their...