Vaughan-Ware v. Darcy
| Decision Date | 08 March 2012 |
| Docket Number | Motion Seq. No.: 01,Index No.: 24665/09 |
| Parties | KATHLEEN VAUGHAN-WARE and RICHARD WARE, Plaintiffs, v. DREW R. DARCY, Defendant. |
| Court | New York Supreme Court |
Acting Supreme Court Justice
The following papers have been read on this motion:
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¦Notice of Motion. Affirmation and Exhibits ¦1 ¦
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¦Affirmation in Opposition, Affidavit and Exhibits and ¦ ¦
¦Memorandum ¦ ¦
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¦of Law ¦2 ¦
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¦Reply Affirmation ¦3 ¦
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Upon the foregoing papers, it is ordered that the motion is decided as follows:
Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting summary judgment to him on the ground that plaintiffs did not sustain a "serious injury" in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiffs oppose the motion.
The above entitled action stems from personal injuries allegedly sustained by plaintiffs as a result of an automobile accident with defendant which occurred on June 10, 2007, at approximately 3:00 p.m., at the intersection of Merrick Road and East Shore Drive, Massapequa, Nassau County, New York. The accident involved two vehicles, a 2005 Nissan owned and operated by plaintiff Kathleen Vaughan-Ware and a 1994 BMW owned and operatedby defendant.
As a result of the collision, plaintiff Kathleen Vaughan-Ware claims that she sustained the following injuries:
See Defendant's Affirmation in Support Exhibit D \5.
Plaintiff Richard Ware's claims are derivative in nature.
At her sworn Examination Before Trial ("EBT"), plaintiff Kathleen Vaughan-Ware testified that, following this accident, she was confined to her bed for two weeks and to her home for an additional four weeks. See Defendant's Affirmation in Support Exhibit F pp. 75-76. Plaintiff Kathleen Vaughan-Ware testified that she was unemployed at the time of the subject accident. As to activities, she stated that, as a result of this accident, she can no longer play volleyball, tend to her vegetable garden, cook, lift heavy objects, wash dishes or drive for longer than thirty minutes at a time. She did, however, testify that, in September 2010, following the subject accident, she joined a local gym where she uses the recumbent bicycle.
Plaintiff Kathleen Vaughan-Ware, who was forty-three years old at the time of the accident, has failed to identify the specific categories of the serious injury statute into which her injuries fall. Nevertheless, whether she can demonstrate the existence of a compensable serious injury depends upon the quality, quantity and credibility of the admissible evidence. See Manrique v. Warshaw Woolen Associates, Inc., 297 A.D.2d 519, 747 N.Y.S.2d 451 (1st Dept. 2002). Based upon a plain reading of the papers submitted herein, it is obvious that plaintiffs are not claiming that plaintiff Kathleen Vaughan-Ware's injuries fall within the first five categoriesof "serious injury:" to wit, death; dismemberment; significant disfigurement; a fracture or loss of a fetus.
Further, inasmuch as plaintiffs have failed to allege and claim that plaintiff Kathleen Vaughan-Ware has sustained a "total loss of use" of a body organ, member, function or system, it is plain that her injuries do not satisfy the "permanent loss of use" category of Insurance Law. See New York State Insurance Law § 5102(d); Oberly v. Bangs Ambulance, Inc., 96 N.Y.2d 295, 727 N.Y.S.2d (2001).
Similarly, any claims that plaintiff Kathleen Vaughan-Ware's injuries satisfy the 90/180 category of Insurance Law § 5102(d) are also contradicted by her own EBT testimony wherein she states that she was only confined to her bed for two weeks and to her home for a total of six weeks as a result of this accident. Further, no where do plaintiffs claim that, as a result of plaintiff Kathleen Vaughan-Ware's alleged injuries, she was "medically" impaired from performing any of her daily activities (Monk v. Dupuis, 287 A.D.2d 187, 734 N.Y.S.2d 684 (3d Dept. 2001)) or that she was curtailed "to a great extent rather than some slight curtailment." See Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 (1982). See also Sands v. Stark, 299 A.D.2d 642, 749 N.Y.S.2d 334 (3d Dept. 2002). In light of these facts, this Court determines that plaintiffs have effectively abandoned their 90/180 claim for purposes of defendant's initial burden of proof on a threshold motion. See Joseph v. Forman, 16 Misc.3d 743, 838 N.Y.S.2d 902 (Sup. Ct. Nassau County 2007).
Thus, the Court will restrict its analysis to the remaining two categories as it pertains to plaintiff Kathleen Vaughan-Ware; to wit, a permanent consequential limitation of use of a body organ or member (Category 7) and a significant limitation of use of a body function or system (Category 8).
Under the no-fault statute, to meet the threshold significant limitation of use of a bodyfunction or system or permanent consequential limitation, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. See Licari v. Elliot, supra; Gaddy v. Eyler,19 N.Y.2d 955, 582 N.Y.S.2d 990 (1992); Scheer v. Koubeck, 70 N.Y.2d 678, 518 N.Y.S.2d 788 (1987). A minor, mild or slight limitation shall be deemed "insignificant" within the meaning of the statute. See Licari v. Elliot, supra; Grossman v. Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 (2d Dept. 2000).
When, as in this case, a claim is raised under the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories, then, in order to prove the extent or degree of the physical limitation, an expert's designation of a numeric percentage of plaintiff's loss of range of motion is acceptable. See Toure v. Avis Rent-a-Car Systems, 98 N.Y.2d 345; 746 N.Y.S.2d 865 (2002). In addition, an expert's qualitative assessment of a plaintiff's condition is also probative, provided that: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system. See id.
That being said, recently the Court of Appeals, in Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 (2011), held that a quantitative assessment of a plaintiff's injuries does not have to be made during an initial examination and may instead be conducted much later, in connection with litigation. See id.
With these guidelines in mind, this Court will now turn to the merits of defendant's motion.
In support of his motion, defendant relies upon plaintiff Kathleen Vaughan-Ware's unsworn hospital records, the sworn report of Dr. Isaac Cohen, MD, FAAOS, an orthopedist who performed an independent orthopedic examination of plaintiff Kathleen Vaughan-Ware on February 16, 2011, the sworn report of Dr. Melissa Sapan Cohn, M.D., a radiologist whoreviewed the MRI scans of plaintiff Kathleen Vaughan-Ware's lumbosacral spine and the sworn report of Dr. Frank D. Oliveto, M.D., an orthopedic surgeon who performed an independent orthopedic examination of the plaintiff Kathleen Vaughan-Ware on September 4, 2007.
Initially, it is noted that, while the affirmed report of Dr. Oliveto constitutes admissible medical evidence, it is nonetheless insufficient and incompetent. That is, Dr. Oliveto claims to have performed range of motion testing of plaintiff Kathleen Vaughan-Ware's lumbosacral spine. However, he clearly states, in pertinent part, that "range of motion is subjectively limited to 30% of normal, with subjective paralumbar spinal musculature discomfort with motion." See Defendant's Affirmation in Support Exhibit I. This is wholly insufficient. Not only does Dr. Oliveto fail to set forth the objective medical testing he performed to support his conclusions ( instead upon the subjective complaints of the patient) (see Vasquez v. Basso, 27 A.D.3d 728, 815 N.Y.S.2d 626 (2d Dept. 2006); Walters v. Papanastassiou,31 A.D.3d 439, 819 N.Y,S.2d 48 (2d Dept. 2006)), but he also fails to quantify and compare the findings of his range of motion testing to a normal range of motion. See Abraham v. Bello, 29 A.D.3d 497, 816 N.Y.S.2d 118 (2d Dept. 2006); Forlong v. Faulton, 29 A.D.3d 856, 814 N.Y.S.2d 530 (2d Dept. 2006). This is clearly insufficient.
Notably, the recent Court of Appeals decision of Perl v. Meher, supra, does not help the defendant in saving the affirmed report of Dr. Oliveto. In Perl, the Court of Appeals reconciled the need to require both quantitative proof of a "serious injury" and "contemporaneous" evidence of a "serious injury." See id. It stated, in pertinent part, as follows:
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