Achnitz v Lochren

[*1] Achnitz v Lochren 2005 NY Slip Op 51511(U) [9 Misc 3d 1112(A)] Decided on July 1, 2005 Supreme Court, Suffolk County Jones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 1, 2005
Supreme Court, Suffolk County

ALICE M. ACHNITZ, Plaintiff,

against

ROBERT A. LOCHREN, Defendant.



005273/2003



ESCHEN & FRENKEL, LLP

Attys. for Plaintiff

93 East Main Street

Bay Shore, NY 11706

JOHN T. RYAN & ASSOCIATES

By: David M. Reilly, Esq.

Attys. for Defendant

128 East Main Street, P.O. Drawer 569

Riverhead, NY 11901

John J. J. Jones, J.

ORDERED that this motion by defendant, Robert A. Lochren, for an order granting summary judgment dismissing the complaint on the ground that the plaintiff, Alice M. Achnitz, did not sustain a "serious injury" within the meaning of NY Insurance Law § 5102(d) is granted, and the complaint is hereby dismissed.

Plaintiff commenced this action to recover damages for personal injuries allegedly sustained on February 24, 2002 as the result of a motor vehicle accident. It is alleged in the bill of particulars that the plaintiff sustained a small joint effusion of the right knee, a disc bulge at C4-5 and C5-6, exacerbation of pre-existing Arnold Chiari's disease, which causes severe headaches, and other related injuries. She claims to have been confined to bed for 2 days following the accident, and confined to home for approximately 2 weeks. She returned to work as a nurse approximately 2½ weeks after the accident and has missed no other time from work as a result of the accident. The plaintiff testified at her deposition that in September 1999 she experienced numbness and tingling down both arms, headaches, neck pain and other symptoms and was diagnosed with Chiari's Malformation. In December 1999, she underwent surgery to relieve symptoms, including a C2-3 fusion.

In order to effectuate the purpose of no-fault legislation to reduce litigation, a court is required to decide, in the first instant, whether a plaintiff has made out a prima facie case of "serious injury" sufficient to satisfy the statutory requirements (Licari v Elliott, 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088 [1982]; Brown v Stark, 205 AD2d 725, 613 NYS2d 705 [2d Dept 1994]). If it is found that the injury sustained does not fit within the definition of "serious injury" under Insurance Law § 5102(d), then the plaintiff has no judicial remedy and the action must be dismissed (Licari v Elliott, supra , at 57 NY2d 238; Velez v Cohan, 203 AD2d 156, 610 NYS2d 257 [1st Dept [*2]1994]). A "serious injury" is defined as a personal injury which "results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitutes such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102 [d]).

In support of the motion, defendant submitted copies of certain medical records of plaintiff's treating physicians which document, among other things, the existence of small disc herniations at C4-5, C5-6 and C6-7, and post-surgical headaches and tingling in her hands. Defendant also submitted the affirmed medical report of a neurologist who examined plaintiff on March 8, 2004, and found that she enjoyed full visual fields with pupils that were equal, round and reactive to light, symmetrical movement of the face, and normal sensation. Deep tendon reflexes were 2+ and the straight leg raising test was negative. While neck flexion and extension were reportedly diminished, specific range-of-motion findings were not given. Left and right lateral rotation, however, were reportedly normal. There was also decreased pinprick sensation in left and right hands. Phalen's test was negative and Tinel's sign was negative. The plaintiff could walk on her heels and toes. The neurologist reviewed radiologic reports of MRI studies taken of the plaintiff's cervical spine in 1997, 1998, 1999 and 2002, and studies of the brain taken in February 2000 and May 2002, as well as various clinical notes. He noted that plaintiff's subjective complaints of headaches and diminished sensation in the hands were reported in 1999, and he opined that plaintiff's complaints were attributable to pre-existing conditions and were not causally related to the underlying accident.

Under the circumstances, the defendant met his initial burden of establishing, as a matter of law, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see McCauley v Ross, 298 AD2d 506, 748 NYS2d 409 [2d Dept 2002]; see also McKinney v Lane, 288 AD2d 274, 733 NYS2d 456 [2d Dept 2001], citing Gaddy v Eyler, 79 NY2d 955, 591 NE2d 1176, 582 NYS2d 990; Licari v Elliott, 57 NY2d 230, 441 NE2d 1088, 455 NYS2d 570). The burden then shifts to plaintiff to come forward with sufficient evidence to overcome defendant's motion by demonstrating that she sustained a serious injury (Gaddy v Eyler, 79 NY2d 955, 591 NE2d 1176, 582 NYS2d 990 [1992]).

In opposition to the motion, plaintiff submitted copies of the MRI reports relating to studies taken in 2002 of the cervical spine and right knee which, though unsworn, were referred to by the defendant's examining neurologist and, therefore, are properly before the Court (see Ayzen v Melendez, 299 AD2d 381, 749 NYS2d 445 [2d Dept 2002]). Plaintiff also submitted an affidavit outlining her medical history and symptoms, and claims that she has been rendered disabled as a result of the accident. In light of her admission that she missed only 2½ weeks of work, however, her unsubstantiated claim of disability is insufficient to raise a triable issue of fact (see Thompson v Abbasi, 15 AD3d 95, 788 NYS2d 48 [1st Dept 2005]). While plaintiff also submitted the affirmed medical report of an examining physician whom she saw on July 2, 2004, the report fails to identify [*3]any records that were reviewed. Moreover, there is no foundation set forth for the doctor's statements that plaintiff's "symptoms improved after her surgery" but they "shifted on the left side after a recent motor vehicle accident." Furthermore, the doctor does not set forth any medical findings to substantiate his conclusory assertion that the plaintiff's subjective complaints of headaches and numbness are causally related to the underlying accident, or that they are "permanently disabling" (see Kivlan v Acevedo, ___ AD3d ___. 792 NYS2d 573 [2d Dept 2005]). Moreover, there is no competent medical evidence indicating that the plaintiff was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days as a result of the accident (see Young v Gonzalez, ___ AD3d ___, 2005 NY App Div LEXIS 5998 [2d Dept 2005]).

In view of the failure of plaintiff's expert to sufficiently set forth the medical foundation supporting his opinion, this Court is constrained to conclude that plaintiff has failed to successfully oppose defendant's motion by demonstrating that she suffered a "serious injury" as defined in Insurance Law § 5102 (d) (see Claude v Clements, 301 AD2d 554, 756 NYS2d 57 [2d Dept 2003]; see also Weaver v Derr, 242 AD2d 823, 661 NYS2d 684 [3d Dept 1997]; Napoli v Cunningham, 273 AD2d 366, 710 NYS2d 919 [2d Dept 2000]; Vitale v Carson, 258 AD2d 647, 685 NYS2d 788 [2d Dept 1999]). Accordingly, the motion must be granted and the complaint dismissed.

HON. JOHN J.J. JONES, JR.

J.S.C.