Franchini v. Palmieri

Rose, J. Appeal from an order of the Supreme Court (Reilly, Jr., J.), entered February 28, 2002 in Schenectady County, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint. Plaintiff Roseanne Franchini (hereinafter plaintiff) and her husband, derivatively, commenced this negligence action to recover for injuries she allegedly sustained in a motor vehicle accident on February 4, 1998. Supreme Court granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined in Insurance Law § 5102 (d). Plaintiffs appeal and, based on their failure to establish a causal relationship between plaintiffs injuries and the accident, we affirm. In support of her summary judgment motion, defendant submitted plaintiffs medical records, which disclose a number of preexisting conditions and injuries that caused, and would [1057] likely continue to cause, the types of symptoms which plaintiff now attributes to the 1998 accident. Specifically, those records reflect that over the seven years preceding the accident, plaintiff suffered from cervical spine arthritis, degenerative disc disease, headaches, spinal tenderness, muscle spasms, and lower back pain. Approximately seven months prior to the accident, plaintiff presented with headaches, swelling over her spine and limited range of motion in her neck as a result of an assault by her husband. Plaintiff’s records also included reports of X rays and MRI scans of her spine taken in February 1998 that appear normal except for confirming her preexisting degenerative disc disease. As a result, plaintiff’s records fail to show that the symptoms she reported after February 4, 1998 were caused by the accident rather than some preexisting condition. Moreover, the lack of a causal link between plaintiff’s injuries and the accident was established by the reports of a physician and a psychologist who examined her in 1999 and opined that her symptoms had other causes (see Best v Bleau, 300 AD2d 858, 859 [2002]; Hassam v Rock, 290 AD2d 625, 625 [2002]; Uber v Heffron, 286 AD2d 729, 730 [2001]). Thus, defendant’s submissions make a prima facie showing of entitlement to summary judgment. It then became incumbent on plaintiffs to present “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” (Blanchard v Wilcox, 283 AD2d 821, 822 [2001]; see Temple v Doherty, 301 AD2d 979, 980 [2003]; Owad v Mayone, 299 AD2d 795, 796 [2002]). To meet this burden, plaintiffs primarily relied upon the January 2002 affidavit of a chiropractor who began treating plaintiff immediately following the 1998 accident and last saw her on November 19, 1998. He diagnosed plaintiff as suffering from “cervicocranial syndrome, cervical intervertebral disc syndrome, lumbar intervertebral disc syndrome, facet syndrome, and lumbago/ low back syndrome.” He also opined that plaintiff sustained limitations of use of her neck and lower back of 100% and that they are “separate and distinct from any pre-existing injuries that [plaintiff] may have had.” Focusing only on the opinion’s causal relationship deficiencies, we find it to be insufficient to raise an issue of fact as to the existence of a serious injury in any category. The chiropractor mentions none of plaintiff’s specific preexisting conditions, and it is not evident that he was aware of what they were. Significantly, plaintiff’s patient histories included in the chiropractor’s records make no reference to any prior accidents, [1058] falls or musculo-skeletal conditions, and, in his affidavit, the chiropractor does not assert that he reviewed plaintiffs earlier medical records or treated her for any preexisting condition (compare Boehm v Estate of Mack, 255 AD2d 749 [1998]). Even if he were aware of them, he failed to explain his opinion that the preexisting conditions had resolved before he began treating plaintiff or to cite any objective evidence to support that opinion (see e.g. Dabiere v Yager, 297 AD2d 831, 832 [2002], lv denied 99 NY2d 503 [2002] [objective evidence is required to distinguish aggravation of a preexisting condition from the preexisting condition itself]). Under these circumstances, his opinion that plaintiffs condition is causally related to the 1998 accident is both speculative and conclusory (see Lorthe v Adeyeye, 306 AD2d 252 [2003]; Pajda v Pedone, 303 AD2d 729, 730 [2003]; Ginty v MacNamara, 300 AD2d 624, 625 [2002]; Kallicharan v Sooknanan, 282 AD2d 573, 574 [2001]). In this regard, we are mindful that “the insufficiency of conclusory assertions of ‘serious injury’ is underscored in cases under the No-Fault Law, where ‘the purpose of enacting an objective verbal definition of serious injury was to “significantly reduce the number of automobile personal injury accident cases litigated in the courts, and thereby help contain the no-fault premium” ’ ” (Lopez v Senatore, 65 NY2d 1017, 1020 [1985], quoting Licari v Elliott, 57 NY2d 230, 236 [1982]; see Scheer v Koubek, 70 NY2d 678, 679 [1987]). The affidavit of a doctor of physiatry who treated plaintiff three times in 2001 is also insufficient for the same reason. Thus, as Supreme Court found, plaintiffs failed to raise a triable issue of fact sufficient to defeat defendant’s motion for summary judgment with respect to any category of serious injury because they did not establish that plaintiffs injuries are causally related to the 1998 accident. Mercure and Crew III, JJ., concur.