Brown v. Achy

OPINION OF THE COURT Marlow, J. This personal injury lawsuit emerges from an automobile accident, and once again presents us with the sometimes frustrating task of deciding when evidence presented on a motion for summary judgment meets the “serious injury” threshold (Insurance Law § 5102 [d]), an elusive standard that all too frequently escapes facile and final resolution. In determining a motion for summary judgment where the issue is whether plaintiff has sustained a serious injury defined by Insurance Law § 5102 (d), the defendant bears the initial burden to present competent evidence that the plaintiff has no cause of action (see Rodriguez v Goldstein, 182 AD2d 396 [1992]). Defendants here met their burden by presenting reports of two doctors who conducted independent medical examinations. These reports— despite acknowledging the report of plaintiff’s MRI which defendants initially submitted in support of their respective motions which revealed a central cervical disc herniation at C3-4— concluded that there were no other objective findings to confirm the disc herniation. However, plaintiffs submissions in response to the respective motions, when viewed in their entirety, constitute objective evidence sufficient to raise a triable issue of fact as to serious injury. Plaintiff, in addition to the MRI report, relies on the results of an EMG/NCV (electromyogram and nerve conduction velocity) study, initially submitted in support of defendants’ motions, with abnormal findings at C5-6 and L5-S1. The results of the NCV test, conducted within six months of the accident, were included in a report prepared by plaintiff’s neurologist dated June 11, 1998, together with his observations that plaintiff suffered from decreased range of motion in her head, neck and lower back. In addition, plaintiffs doctor submitted [32] an affirmation, prepared after a recent examination, that plaintiff has a 25% loss of lateral flexation and rotation in the cervical spine bilaterally; that plaintiff has a 25% loss of forward flexion in the lumbar spine; and that plaintiffs seated straight-leg raising test is positive bilaterally at 60 degrees. Plaintiffs doctor also concluded that plaintiff has a “permanent partial disability.”1 Evidence of range of motion limitations is sufficient to defeat summary judgment (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Eng v New Main Line Trading Corp., 249 AD2d 359 [1998]; Cassagnol v Williamsburg Plaza Taxi, 234 AD2d 208 [1996]). Furthermore, this Court has held that straight-leg raising tests are objective evidence of serious injury (see Aguilar v N.Y.C. Water Works, 298 AD2d 245 [2002]; Adetunji v U-Haul Co. of Wis., 250 AD2d 483 [1998]), especially where, as here, they are coupled with positive MRI and nerve conduction velocity test results. That the MRI report and nerve conduction velocity study results are unsworn “does not avail” defendants (Gonzalez v Vasquez, 301 AD2d 438, 439 [2003], relying on Ayzen v Melendez, 299 AD2d 381 [2002] [results of MRI were referred to by defendant movant’s examining neurologist and therefore were properly before the court]). Since plaintiff has submitted competent objective evidence to confirm the findings of both the MRI and EMG/NCV studies, she has raised a triable issue of fact whether she sustained a serious injury as defined by the Insurance Law (see Aguilar, supra [nerve conduction velocity tests and MRI in conjunction with positive straight-leg raising test objective evidence of serious injury]; see also Puma v Player, 233 AD2d 308 [1996] [positive MRI and doctor’s conclusion that bulge was traumatically induced and cause of plaintiffs pain and restriction of range of motion sufficient to raise triable issue of fact]; Spezia v De Marco, 173 AD2d 462 [1991] [results of NCV tests purported to confirm diagnosis of cervical radiculopathy]). These objective medical findings coupled with plaintiffs chiropractor’s affidavit, which contains a finding of permanency and causally relates her injuries to the underlying accident (see Caraballo v Pearson, 261 [33] AD2d 565 [1999]; cf. Komar v Showers, 227 AD2d 135 [1996] [insufficient evidence to connect plaintiffs injuries to accident]), are sufficient to defeat defendants’ motions. The dissent suggests that under Nitti v Clerrico (98 NY2d 345, 355 [2002]), one of the cases decided with Toure, the Court of Appeals would reject straight-leg raising tests as objective tests of serious injury, because these tests which chiropractors employ to determine a plaintiffs range of motion limitations are in part based on a plaintiffs subjective complaints of pain. The dissent further states, “the existing record does not establish whether the particular tests used by plaintiff’s medical experts were based on subjective complaints of pain, and defendants should not be precluded from exploring this issue at trial.” We emphasize that our conclusion in this case is based not only on straight-leg raising tests, but on positive MRI and EMG/ NCV test results as well. Therefore, in this case, we need not determine whether our dissenting colleague’s interpretation of Nitti v Clerrico is correct, nor reach the issues of whether straight-leg raising tests alone would be sufficient under Toure, and whether our own past decisions (see e.g. Aguilar, supra; Adetunji, supra) are consistent with Toure’s reasoning. As for the dissent’s admonition that the defense be permitted at trial to explore the subjective components of any tests used by experts to form their opinions on the subject of serious injury, that is fair and reasonable and we agree. The more than two-year gap in treatment between plaintiffs visits to the chiropractor—the first visit within 10 days of the accident and regular visits for at least five months thereafter— and the recent examination conducted by her physician, the results of which were submitted in opposition to defendants’ respective motions, go to the weight, not the admissibility, of the evidence.2 Where, as here, plaintiffs chiropractor averred that she “received an adequate course of conservative management [34] and had reached her maximal medical improvement when she stopped treating with me[,]” plaintiff has, with minimal adequacy, explained her treatment gap in this case (see Ramos v Dekhtyar, 301 AD2d 428, 429-430 [2003]; see also Lantigua v Williams, 305 AD2d 286 [2003], citing Ramos with approval; compare Melendez v Feinberg, 306 AD2d 98, 99 [2003], lv denied 1 NY3d 508 [2004]). To find differently at this juncture would, according to precedent (see n 2, supra), invade the jury’s province. We respectfully disagree with our dissenting colleague’s position that plaintiff’s chiropractor’s opinion that plaintiff was treated until she reached her “maximal medical improvement” is insufficient as a matter of law to explain the plaintiffs gap in treatment, because, purportedly, it materially differs from the medical explanation the Court of Appeals found sufficient in Toure, i.e., that plaintiff could derive no “benefit in her continuing to seek medical treatment for this condition” (98 NY2d at 355). We see each of these two statements, respectively given to explain the plaintiffs treatment gaps in each case, as similar for all practical purposes, if not exquisitely identical in meaning. To hold otherwise would, in our view, revere form over substance. The dissent’s other attempts to distinguish the two medical statements, in our view, simply raise additional factual issues to be explored at trial. Accordingly, we find that plaintiff has raised a triable issue of fact as to whether she sustained a serious injury under the Insurance Law, and, consequently, we need not address plaintiffs more specific claim that she sustained an injury which prevented her from performing substantially all of her daily activities for at least 90 out of the 180 days following the accident. Finally, we dismiss plaintiffs purported appeal from the decision, as no appeal lies therefrom (see Matter of Civil Serv. Empls. Assn. v Pilgrim Psychiatric Ctr., 204 AD2d 444 [1994]; Matter of Willoughby Realty & Mgt. Co. [New York State Ind. Union of Bldg. Serv. Empls. & Factory Workers, Local 2], 9 AD2d 889, 890 [1959] [dissenting mem]). [35] Accordingly, the order of the Supreme Court, Bronx County (Howard R. Silver, J.), entered May 6, 2002, which granted the separate motions of defendant Leonor Reynoso and defendants C. Francois Jean Achy and Bamba Idrissa for summary judgment dismissing the complaint for failure to establish a serious injury as defined by Insurance Law § 5102 (d), should be reversed, on the law, without costs, the respective motions denied and the complaint reinstated. The purported appeal from a decision, same court and Justice, entered on or about March 18, 2002, should be dismissed, without costs, as taken from a nonappealable paper. Footnotes [1] While the dissent mentions plaintiffs overweight condition in his description of her, we can only conclude that he does so to imply that her injuries are causally related to her weight and therefore a factor which should deny her the opportunity to make her case on the merits before a jury. While he may be correct, plaintiffs weight is no more than one factor and raises nothing more than an additional issue for the trier of fact. [2] Our dissenting colleague in footnote 1 disagrees that plaintiff’s November 9, 2000 and August 2, 2001 visits to Dr. Hausknecht were for treatment, rather than diagnosis. He seems to assert that these visits were purely made in defense of summary judgment motion practice rather than for medical reasons. However, defendants’ instant motion for summary judgment postdates both visits, which, at worst, presents an issue of fact as to plaintiffs motive for seeing Dr. Hausknecht on those two occasions. Moreover, Dr. Hausknecht concludes under oath, after specifying with numerical detail during the latter exam that the tests he administered confirmed serious injury, that plaintiff “will continue care under my supervision.” While Dr. [34] Hausknecht’s affirmation could have been worded with greater particularity, we are unwilling to resolve factual issues and ambiguities in favor of either side at this juncture. Indeed, it is well-settled that our mission on summary judgment must be “ ‘issue-finding, rather than issue-determination’ ” (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], quoting Esteve v Abad, 271 App Div 725, 727 [1947]; see also Epstein v Scally, 99 AD2d 713, 714 [1984] [summary judgment is a drastic remedy and should not be granted where triable issues of fact are raised and cannot be resolved on conflicting affidavits]).