Toure v. Avis Rent A Car Sys.

• Decision Date: 09 July 2002
• Citation: 98 N.Y.2d 345,774 N.E.2d 1197,746 N.Y.S.2d 865
• Parties: AHMED D. TOURE, Appellant, v. AVIS RENT A CAR SYSTEMS, INC., et al., Respondents. LINDA W. MANZANO et al., Appellants, v. SHARON A. O'NEIL, Respondent. BRENDA M. NITTI, Respondent, v. JOSEPHINE CLERRICO et al., Appellants, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

98 N.Y.2d 345

774 N.E.2d 1197

746 N.Y.S.2d 865

AHMED D. TOURE, Appellant, v. AVIS RENT A CAR SYSTEMS, INC., et al., Respondents.

LINDA W. MANZANO et al., Appellants, v. SHARON A. O'NEIL, Respondent.

BRENDA M. NITTI, Respondent, v. JOSEPHINE CLERRICO et al., Appellants, et al., Defendants.

Court of Appeals of the State of New York.

Argued April 25, 2002.

Argued June 5, 2002.

Decided July 9, 2002.

Segal & Lax, New York City (Patrick Daniel Gatti of counsel), for appellant in the first above-entitled action.

Faden & Goldmacher, Westbury (Beth J. Goldmacher of counsel), for respondents in the first above-entitled action. Cote & Limpert, Syracuse (Joseph S. Cote, III, Michael E. Plochocki and Kevin P. Kuehner of counsel), for appellants in the second above-entitled action.

Mackenzie Hughes LLP, Syracuse (David M. Garber of counsel), for respondent in the second above-entitled action. Fiedelman & McGaw, Jericho (Andrew Zajac, Dawn C. DeSimone, Elizabeth Anne Bannon and Kathleen D. Foley of counsel), and Thomas J. Mulligan for Defense Association of New York, Inc., amicus curiae in the second above-entitled action.

Thuillez, Ford, Gold & Johnson, LLP, Albany (Michael J. Hutter of counsel), and Law Offices of Craig P. Niederpruem, Utica, for appellants in the third above-entitled action.

Peter J. DiGiorgio, Jr., Utica, for respondent in the third above-entitled action.

Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

GRAFFEO, J.

These three cases examine the nature and extent of qualitative, objective medical proof necessary for a plaintiff to meet the "serious injury" threshold under the No-Fault Law. We conclude that plaintiffs Toure and Manzano have satisfied their burden under Insurance Law § 5102 (d),¹ but plaintiff Nitti has not.

This Court has long recognized that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 84 NY2d 795, 798 [1995]; see also Licari v Elliott, 57 NY2d 230, 234-235 [1982]

). As such, we have required objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold (see e.g. Dufel, 84 NY2d at 798; Lopez v Senatore, 65 NY2d 1017, 1020 [1985]); subjective complaints alone are not sufficient (see e.g. Gaddy v Eyler, 79 NY2d 955, 957-958 [1992]; Scheer v Koubek, 70 NY2d 678, 679 [1987]).

In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury (see e.g. Dufel, 84 NY2d at 798; Lopez, 65 NY2d at 1020). An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system (see Dufel, 84 NY2d at 798). When supported by objective evidence, an expert's qualitative assessment of the seriousness of a plaintiff's injuries can be tested during cross-examination, challenged by another expert and weighed by the trier of fact. By contrast, an expert's opinion unsupported by an objective basis may be wholly speculative, thereby frustrating the legislative intent of the No-Fault Law to eliminate statutorily-insignificant injuries or frivolous claims. We now apply these principles to three different cases.

Toure v Avis Rent A Car Systems, Inc.

Plaintiff commenced this action to recover damages for neck and back injuries allegedly suffered when the vehicle he was driving was struck by an automobile operated by defendant Susan Duncan and owned by defendant Avis Rent A Car Systems, Inc. Following joinder of issue, plaintiff served a bill of particulars alleging that he suffered a "permanent consequential limitation of use of a body organ or member" and a "significant limitation of use of a body function or system," two of the statutory categories defining "serious injury" under Insurance Law § 5102 (d).² Defendants then moved for summary judgment dismissing the complaint on the ground that plaintiff had not sustained a serious injury within the meaning of the No-Fault Law.³

In support of their motion, defendants submitted various medical records of plaintiff and an affirmation from a neurologist, Dr. Ralph Olson. Dr. Olson conducted a physical examination of plaintiff and reviewed plaintiff's medical records, including reports from plaintiff's chiropractor and reports of x-rays and an MRI of plaintiff's back. He concluded that a "clinical examination of the central and peripheral nervous system, cervical, dorsal and lumbosacral spine fails to reveal any objective abnormalities to indicate any residual disability" and that "[f]rom a neurologic standpoint [plaintiff] has recovered from his various injuries."

In opposition, plaintiff submitted his own affidavit and an affirmation from Dr. Joseph Waltz, a neurosurgeon who had treated him for approximately a year and a half prior to defendants' motion. Plaintiff averred that, even three years after the accident, he could lift only "moderate weight objects with significant pain," experienced pain attempting to bend and use his lower back, was unable to sit for more than half an hour without "great discomfort," could not walk moderate distances and had neck pain when turning his head. Plaintiff further claimed that, due to his alleged physical limitations, he hired someone to lift heavy objects when deliveries were made to his business.

Based on his review of medical records from plaintiff's prior health care providers, Dr. Waltz noted that an earlier MRI test of plaintiff's cervical spine—taken one month after the accident—revealed one bulging and two herniated discs. As a consequence, he had plaintiff undergo additional testing—a CT scan of his cervical spine and an MRI of his lumbar spine. According to Dr. Waltz, the CT scan indicated "significantly bulging possibly herniated discs" and the lumbar MRI revealed "significant bulging discs." While conducting a physical examination, Dr. Waltz observed that plaintiff "had paraspinous muscle spasms in the lumbosacral area and a decreased range of motion in his lumbar spine." He opined to a reasonable degree of medical certainty that plaintiff's disc pathology was caused by the motor vehicle accident and that plaintiff's injuries are "permanent and result in restriction of use and activity of the injured areas and permanent limitation of his spine and peripheral nervous system." Moreover, Dr. Waltz related this assessment to plaintiff's complaints of difficulty in sitting, standing and walking for extended periods of time and plaintiff's inability to lift heavy objects at work by concluding that these limitations are "a natural and expected medical consequence of his injuries."

Based on these submissions, Supreme Court granted defendants' motion and dismissed plaintiff's complaint. The Appellate Division affirmed, with two Justices dissenting. Plaintiff appealed to this Court as of right.

Although Dr. Olson's affirmation was sufficient to meet defendants' initial burden to establish a prima facie case that plaintiff's alleged injuries did not meet the serious injury threshold under the No-Fault Law (see e.g. Gaddy, 79 NY2d at 956-957

), plaintiff's proffered evidence raises issues of material fact as to whether he sustained a "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system."

For these two statutory categories, we have held that "[w]hether a limitation of use or function is `significant' or `consequential' (i.e., important * * *) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel, 84 NY2d at 798).⁴ While Dr. Waltz's affirmation does not ascribe a specific percentage to the loss of range of motion in plaintiff's spine, he sufficiently describes the "qualitative nature" of plaintiff's limitations "based on the normal function, purpose and use of the body part" (id.). Dr. Waltz further attributes the limitations in plaintiff's physical activities to the nature of the injuries sustained by opining that plaintiff's "difficulty in sitting, standing or walking for any extended period of time and his inability to lift heavy boxes at work are a natural and expected medical consequence of his injuries" (see Melino v Lauster, 195 AD2d 653, 655

[3d Dept], affd 82 NY2d 828 [1993]).

We cannot say that the alleged limitations of plaintiff's back and neck are so "minor, mild or slight" as to be considered insignificant within the meaning of Insurance Law § 5102 (d) (Licari, 57 NY2d at 236; see also Gaddy, 79 NY2d at 957

; Scheer, 70 NY2d at 679). As our case law further requires, Dr. Waltz's opinion is supported by objective medical evidence, including MRI and CT scan tests and reports, paired with his observations of muscle spasms during his physical examination of plaintiff. Considered in the light most favorable to plaintiff, this evidence was sufficient to defeat defendants' motion for summary judgment (see Lopez, 65 NY2d at 1020). Given this ruling, we need not pass on plaintiff's remaining claim under section 5102 (d).

Manzano v O'Neil

After her vehicle was rear-ended by an automobile operated by defendant, plaintiff and her husband initiated this lawsuit alleging that she sustained a serious injury pursuant to Insurance Law § 5102 (d), specifically, a "permanent consequential limitation of use of a body organ or member." Prior to trial, the parties stipulated to defendant's liability but agreed to litigate the issue of whether plaintiff sustained a serious injury under the No-Fault Law.

Plaintiff testified that after the accident, she was taken to a hospital...