Womack v. Wilhelm

• Decision Date: 28 June 2012
• Citation: 948 N.Y.S.2d 163,2012 N.Y. Slip Op. 05214,96 A.D.3d 1308
• Parties: Sharon D. WOMACK, Appellant, v. Benjamin C. WILHELM et al., Respondents.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1308
948 N.Y.S.2d 163
2012 N.Y. Slip Op. 05214

Sharon D. WOMACK, Appellant,
v.
Benjamin C. WILHELM et al., Respondents.

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

June 28, 2012.

[948 N.Y.S.2d 164]

The Delorenzo Law Firm, L.L.P., Schenectady (Cory Ross Dalmata of counsel), for appellant.

Thuillez, Ford, Gold, Butler & Young, L.L.P., Albany (Daisy Ford Paglia of counsel), for respondents.

Before: MERCURE, J.P., ROSE, STEIN, GARRY and EGAN JR., JJ.

STEIN, J.

[96 A.D.3d 1308]Appeal from an order of the Supreme Court (Kramer, J.), entered March 25, 2011 in Schenectady County, which granted defendants' motion for summary judgment dismissing the complaint.

Plaintiff commenced this action, alleging that, as a result of a [96 A.D.3d 1309]motor vehicle accident on October 5, 2007, she suffered a serious injury to her cervical, thoracic and lumbar spine under the significant limitation of use and 90/180–day categories of Insurance Law § 5102(d).¹ in her bill of particulars, plaintiff alleged thaT HER INJURIES included bulging discs and disc protrusions, as well as numbness and swelling of her hands and sprains of her neck, back and left wrist. She further alleged that her symptoms worsened after she was involved in a second, unrelated motor vehicle accident in October 2009. Following joinder of issue and discovery, defendants

[948 N.Y.S.2d 165]

moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury. Supreme Court granted defendants' motion in its entirety. On plaintiff's appeal, we affirm.

As the proponent of the summary judgment motion, defendants had the threshold burden to establish, by competent medical evidence, that plaintiff did not suffer a serious injury causally related to the 2007 accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 352, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002];Peterson v. Cellery, 93 A.D.3d 911, 912, 940 N.Y.S.2d 194 [2012] ). To that end, defendants submitted plaintiff's deposition testimony and the affirmed report of Joseph Elfenbein, an orthopedic surgeon who reviewed plaintiff's medical records and performed an independent medical examination of plaintiff in April 2010. Defendants also submitted various unsworn records of plaintiff's treating and consulting physicians and her emergency room records, all of which are “documents upon which defendant[s] may properly rely to make [a] prima facie showing of entitlement to judgment as a matter of law” ( Tuna v. Babendererde, 32 A.D.3d 574, 575, 819 N.Y.S.2d 613 [2006];see McElroy v. Sivasubramaniam, 305 A.D.2d 944, 945, 761 N.Y.S.2d 688 [2003];Seymour v. Roe, 301 A.D.2d 991, 991–992, 755 N.Y.S.2d 452 [2003] ).

Defendants' proof established that, six days after the 2007 accident, plaintiff sought medical care at an emergency room complaining of pain in her wrist, neck and lower back. An X ray of plaintiff's wrist revealed no fracture, and she was diagnosed with a neck and back strain and a sprained wrist, prescribed Flexeril and Motrin, and released with the instruction that she follow up with her doctor. Based upon his review of plaintiff's medical records and his physical examination of plaintiff—which indicated a full range of motion of her cervical and lumbar spine—Elfenbein concluded that, while plaintiff may have suffered[96 A.D.3d 1310]strains of the cervical and lumbar spine and a sprained wrist, they were resolved and there was no objective medical evidence demonstrating that plaintiff's injuries caused a significant limitation of the use of her spine or of any orthopedic disability. Thus, defendants submitted sufficient evidence to satisfy their initial burden...