MacMillan v. Cleveland

Garry, J. In October 2005, plaintiff Elizabeth MacMillan (hereinafter plaintiff) was operating a motor vehicle when it was struck by defendant’s vehicle. Plaintiffs subsequently commenced this action, claiming serious injury to plaintiffs back and neck within the meaning of Insurance Law § 5102 (d). Following joinder of issue, defendant moved for summary judgment dismissing the complaint. Supreme Court granted the motion, prompting this appeal. Finding plaintiffs’ evidence sufficient to present a factual dispute relative to the significant limitation of use and the 90/180-day categories, we modify the order accordingly.1 Defendant bore the initial burden to establish on a prima facie basis that plaintiff did not suffer a causally-related serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Wolff v Schweitzer, 56 AD3d 859, 860 [2008]). To that end, defendant proffered plaintiff’s medical records, which reflect a long history of back pain, including prior injuries in February, April and July 2005. This evidence of a preexisting condition shifted the burden to plaintiffs to “ ‘set forth competent medical evidence based upon objective medical findings and tests to support [the] claim of serious injury and to connect the condition to the accident’ ” (Tracy v Tracy, 69 AD3d 1218, 1219 [2010], quoting Blanchard v Wilcox, 283 AD2d 821, 822 [2001]; see Coston v McGray, 49 AD3d 934, 935 [2008]). [1389] Plaintiffs were thus required to provide objective medical proof and quantitative or qualitative evidence establishing plaintiff s claimed condition and distinguishing her preexisting conditions from the claimed injury (see Pommells v Perez, 4 NY3d 566, 571-572, 577-578 [2005]; Falkner v Hand, 61 AD3d 1153, 1154-1155 [2009]). Plaintiff testified that, at the time of the subject collision, she was employed at an after-school program and volunteered as an emergency medical technician, despite her prior injuries and preexisting physical conditions. She was being treated for these preexisting conditions and injuries by her physician, Ze’ev Weitz. By affidavit, Weitz testified that in the course of his treatment rendered following the collision, he found plaintiff disabled from her work and customary activities for stated periods that ultimately exceeded four months, at which time he released her to return to light duty work. Weitz described specific limitations of use and motion in plaintiffs arm and averred that she “was restricted in all phases of motion in her neck and back.” He further compared diagnostic MRI testing obtained before and after the subject collision and opined that this comparison revealed “a marked difference in deterioration and degree of injury of her lower back from LI to L5.” In sum, he concluded that the automobile accident was the cause of plaintiffs disabling condition and that she suffered a significant limitation of use and motion of her neck and lower back, as established by clinical examination and the objective proof of aggravation revealed by the MRI testing. Notably, Weitz’s opinion was based on his treatment and clinical observations made both before and after the subject collision. Nonetheless, his affidavit is insufficient, standing alone, to meet the applicable legal standards, as he failed to specify the percentage of the restrictions in motion or to set forth the underlying clinical tests supporting his stated observations (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Tuna v Babendererde, 32 AD3d 574, 577 [2006]). Plaintiffs made further submissions, however, which we find adequate to cure these deficiencies. A chiropractor who treated plaintiff for her preexisting condition prior to the collision and continuing thereafter stated by affidavit that plaintiffs symptoms “were substantially aggravated by the motor vehicle accident,” and provided a recent assessment of plaintiffs cervical and lumbar limitations by specified degree, opining that the limitations were significant. Further, plaintiffs no-fault carrier had a medical evaluation performed by orthopedic surgeon Lawrence Schulman. Schulman performed a detailed analysis of plaintiffs [1390] prior history and opined that the subject collision “aggravated and contributed to her condition.” An additional orthopedic evaluation was performed by Shashi Patel, upon request of the workers’ compensation carrier relative to one of plaintiffs prior injuries. Among other stated findings, Patel noted that his examination revealed “moderate muscle spasm” in plaintiff’s paravertebral musculature (see Weaver v Howard, 206 AD2d 793, 793 [1994]).2 Patel opined that plaintiff’s preexisting degenerative condition was aggravated by a prior work-related injury, and then reaggravated by the subject collision. He apportioned 50% of her continuing “moderate to marked disability referable to the lumbar spine” to each of these two occurrences. Schulman and Patel each prepared detailed reports setting forth the findings of their respective evaluations, and each attributed disability to the collision after specifically considering the effects of plaintiffs preexisting condition. Notably, these physicians were retained for this very purpose by their respective insurance carriers, as the carriers would not be responsible for payment without a finding of causal relationship following analysis of the various relevant factors affecting plaintiffs physical condition. Further, defendant did not present any medical expert opinion refuting the evaluators’ conclusions, but established her prima facie case solely by introducing the records of plaintiffs prior injuries and conditions. While evidence of this nature is sufficient to meet a party’s initial burden of proof (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Tuna v Babendererde, 32 AD3d at 575), the opinions of Schulman and Patel regarding causation thus stand unrefuted by medical testimony in this record. Viewing this evidence in the light most favorable to plaintiffs (see Hildenbrand v Chin, 52 AD3d 1164, 1166 [2008]), we find the proof sufficient to meet their burden to demonstrate the existence of triable issues of fact as to the significant limitation of use category of serious injury. As to the 90/180-day category, plaintiffs were required to submit objective evidence of a “medically determined injury or impairment of a non-permanent nature which prevent [ed] [plaintiff] from performing substantially all of the material acts which constitute [her] usual and customary daily activities” during at least 90 of the 180 days immediately after the ac [1391] cident (Insurance Law § 5102 [d]; see Nowak v Breen, 55 AD3d 1186, 1188 [2008]). Triable issues of fact as to this category are established by the previously-discussed medical evidence, as well as Weitz’s affidavit testimony that plaintiff was not capable of performing her normal and customary activities for four months after the October 2005 accident, and plaintiffs affidavit describing her ongoing inability to drive and engage in her previous household activities (see Secore v Allen, 27 AD3d 825, 828 [2006]; Monk v Dupuis, 287 AD2d 187, 191-192 [2001]). Kavanagh and Egan Jr., JJ., concur. Footnotes [1] Plaintiffs’ evidence did not reveal a total loss of use, as required to establish a claim under the permanent loss of use category (see Oberly v Bangs Ambulance, 96 NY2d 295, 297 [2001]; Tracy v Tracy, 69 AD3d 1218, 1219 [2010]), and the claim of permanent consequential loss of use was not presented in the complaint or bill of particulars (see Hall v Barth, 36 AD3d 1050, 1051 n [2007]). [2] This finding was stated in the portion of the report describing the particulars of the clinical physical examination. In contrast to the dissent, we perceive no basis for a negative inference arising from the failure of this physician to present greater detail describing his precise clinical methodology; whether this finding was made upon palpation or visual observation, it was within the realm of his expertise, and does not require further development at the summary judgment stage (see Hall v Barth, 36 AD3d 1050, 1051 [2007]).