Parks v Miclette

[*1] Parks v Miclette 2005 NY Slip Op 52374(U) [21 Misc 3d 1107(A)] Decided on May 3, 2005 Supreme Court, Schenectady County Reilly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2005
Supreme Court, Schenectady County

Paul S. Parks, Plaintiff,

against

Robert R. Miclette JR., and PEGGY L. SENECAL, Defendants. ANTHONY L. BARRONE, Plaintiff, PEGGY L. SENECAL and ROBERT R. MILLETTE JR., Defendants. NEW YORK STATE THRUWAY AUTHORITY, Plaintiff, PEGGY L. SENECAL and ROBERT R. MILLETTE JR., Defendants.



ANTHONY L. BARRONE, Plaintiff,

against

PEGGY L. SENECAL and ROBERT R. MILLETTE JR., Defendants.



NEW YORK STATE THRUWAY AUTHORITY, Plaintiff,

against

PEGGY L. SENECAL and ROBERT R. MILLETTE JR., Defendants.



2003-0980



APPEARANCES:

Lafave Law Firm PLLC

For Plaintiff in Action # 1

822 Delaware Avenue

Delmar, NY 12054

Fitzgerald, Morris, Baker Firth PC

For Defendants in Action # 1

One Broad Street Plaza

Glens Falls, NY 12801

Vincent J. Reilly, J.

These actions arise from a multi-vehicle collision that occurred on the New York State Thruway at approximately 4:55 a.m. on March 18, 2002 in Onondaga County. As best can be discerned from the police accident reports, defendant Robert Miclette was operating a vehicle owned by defendant Peggy L. Senecal on the New York State Thruway when a tractor trailer allegedly entered his lane, forcing his vehicle to strike the center guard rail and rebound into the lane of travel. The disabled vehicle came to rest in the center of the roadway, where it was struck by the vehicle operated by plaintiff Paul Parks. After the occupants were able to exit the disabled vehicle, a vehicle operated by plaintiff Anthony Barone struck the disabled vehicle and propelled it into the adjacent lane of travel, striking the vehicle operated by James Fredette. Via separate actions commenced against Miclette and Senecal in different counties, Parks and Barone seek to recover damages for personal injuries while the New York State Thruway Authority seeks to recover for property damage to the guardrail. By decision and order of this Court, the actions were joined in Schenectady County for trial which is scheduled to commence on June 5, 2006. Defendants Miclette and Senecal now move for summary judgment dismissing the complaint in action #

1 upon the ground that plaintiff Paul Parks (hereinafter plaintiff) did not sustain a serious injury as that phrase is defined in Insurance Law § 5102 (d). Plaintiff opposes the motion.

As alleged in the complaint and bill of particulars, plaintiff claims that he suffers from vertigo as well as neck and back injuries that constitute serious injuries within three categories of Insurance Law § 5102 (d): (1) permanent consequential limitation of use of a body organ or member; (2) significant limitation of use of a body function or system; and (3) a medically determined injury or impairment of a non permanent nature which significantly curtailed the performance of customary and daily activities for a period of 90 out of the first 180 days following the accident.[FN1] As amplified by the bill of particulars, plaintiff claims that he sustained a head injury in the accident which in turn caused neck and back limitations, post-concussive vertigo, balance problems and syncopal episodes. According to plaintiff, the post-concussive vertigo causes dizziness which prevents him from returning to his employment demonstrating airplane safety net equipment while standing on the elevated surface of airplane wings.

As the proponent of summary judgment, defendant has the initial burden to submit admissible evidence demonstrating that plaintiff did not sustain a serious injury within any of the alleged categories (see, Weller v Munson, 309 AD2d 1098, lv dismissed, lv denied 2 NY3d 782 ; Anderson v Persell, 272 AD2d 733). Under the significant limitation of use and permanent consequential limitation of use categories, a significant' or consequential' limitation of use must be demonstrated through either objective quantitative evidence of a diminished range of motion or qualitative evidence comparing plaintiff's present degree of functioning to the normal function and purpose of the affected body part (see, Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351; Dufel v Green, 84 NY2d 795, 798; Gehrer v Eisner, 19 AD3d 851). Moreover, the medical evidence must be based upon objective tests and findings, and must demonstrate that the limitation is more than mild, minor or slight (see, Simpson v Feyrer, ___ AD3d ___, 811 NYS2d 788 [March 9, 2006]; Smith v Genardo, ___ AD3d ___, 811 NYS2d 173 [March 2, 2006]; Dabiere v Yager, 297 AD2d 831; [*2]Blanchard v Wilcox, 283 AD2d 821). To prevail under the 90/180-day category, plaintiff must establish through objective medical proof that the accident caused a medically determined injury or impairment of a non permanent nature which would have caused a great curtailment of his customary daily activities during the relevant time period (see, Calafiore v Kiley, 303 AD2d 816). Plaintiff's subjective complaints of pain, without objective medical evidence of injury, are insufficient to support a finding of serious injury under any category (see, Pianka v Pereira, 24 AD3d 1084; Fountain v Sullivan, 261 AD2d 795).

In support of the motion, defendants made a prima facie showing that plaintiff did not sustain a serious injury within the permanent consequential limitation, significant limitation and 90/180-day categories of Insurance Law § 5102 (d). Defendants rely almost exclusively upon plaintiff's medical records, which although unsworn are admissible in support of a summary judgment motion (see, 16 AD3d 26). These records reveal that on March 18, 2002, the day of the accident, plaintiff was treated at the emergency room and was about to be discharged when he had a syncopal episode, fell off the examination table and struck his head. When plaintiff regained consciousness, he presented new complaints of intermittent dizziness and neck and back pain. Plaintiff was admitted to the hospital for monitoring and thereafter suffered another syncopal episode. Numerous X rays and CT scans were thereafter performed and determined to be normal, with no evidence of neurological abnormality. Plaintiff was fitted with a soft cervical collar ultimately discharged from the hospital on March 20, 2002 with clearance to return to light duty work. The orthopedist who saw plaintiff on April 12, 2002 indicated that plaintiff's diagnostic films showed full range of motion and no evidence of neurological injury. He authorized plaintiff to remove his cervical collar and made a diagnosis of cervical sprain/strain, although he failed to refer to any objective medical tests or other evidence to support this diagnosis. On April 17, 2002, plaintiff presented to an internist complaining of dizziness, headaches and neck/back pain. The internist examined plaintiff and concluded - - without explanation - - that plaintiff suffered from "post-concussion syndrome".

Plaintiff sought further medical treatment from neurologist David Hart on May 1, 2002. At that time, plaintiff complained of vertigo occurring while he was seated and lying down, constant headaches, limited cervical range of motion and lower back pain. Upon physical examination Hart reportedly observed a cervical spasms and limited cervical range of motion varying from one-third to two-thirds of normal. Hart further observed that the limited neck extension was due in part to plaintiff's fear of triggering his vertigo. Although Hart had not reviewed any of plaintiff's prior medical records, he concluded that plaintiff "has post concussive vertigo" - - possibly caused by a perilymph fistula - - and directed that he returned for a follow-up visit in six weeks.

During the follow-up visit on June 21, 2002, plaintiff reported to Hart that he was feeling "better and better", suffered only from minor headaches and experienced dizziness only when he was lying down. Plaintiff indicated that his neck range of motion was improving, and that he was able to resume physical activity such as walking, running and lifting light weights. However, plaintiff reported that his vertigo prevented him from returning to work due to his exposure to elevation-related risks while demonstrating safety equipment on airplane wings. In Hart's opinion, plaintiff was doing "considerably better" and could return to sedentary work immediately, with the expectation that he could resume his full work duties in the near future. Significantly, the affidavit of plaintiff's employer indicates that plaintiff's job duties were almost 100% sedentary, involving little to no work standing on airplane wings, and that plaintiff was in the process of being terminated from his employment at the time of his accident.

Based upon these submissions, defendants' moving papers satisfy their initial burden of proof [*3]and demonstrate their entitlement to summary judgment dismissing the complaint. Although plaintiff's alleged injuries evidently reduced his ability to work and exercise, there is insufficient objective medical evidence to establish that such injuries qualified as "serious injuries". Hart's description of the reduced range of motion in plaintiff's neck is insufficient to support a finding of serious injury because such an observation is based upon subjective complaints of pain without corroboration by objective medical evidence (see, Durham v New York East Travel, 2 AD3d 1113; McCreesh v Hoehn, 307 AD2d 638). While the presence of a cervical spasm may be consistent with a loss of range of motion, Hart failed to explain any objective tests he used to determine spasm (see, John v Engel, 2 AD3d 1027) or how the claimed loss of range of motion is supported by the finding of spasms (see, McCreesh v Hoehn, 307 AD2d 638, supra ). Moreover, the record is completely devoid of any objective medical evidence to support the conclusory diagnosis of post-concussive vertigo. The diagnostic tests performed on plaintiff showed no neurological or other abnormalities which could account for his claimed vertigo symptoms or causally relate them to the accident.

Furthermore, plaintiff's treating physicians fail to explain how any other objective medical test was used to arrive at the vertigo diagnosis but instead appear to rely largely upon plaintiff's repeated subjective complaints of dizziness and balance problems. Although plaintiff reportedly experienced two syncopal episodes immediately following the accident, there is no objective medical proof to demonstrate that these episodes were caused by the accident or continued to occur after plaintiff's discharge from the hospital. Even assuming that plaintiff's injuries were supported by objective medical evidence, the evidence demonstrates that they fail to qualify as anything other than mild or slight limitations that were improving when he ceased treatment nearly four years ago (see, Daus v Cassavaugh, 17 AD3d 837; Davis v Evan, 304 AD2d 1023; Rose v Furgerson, 281 AD2d 857, lv denied 97 NY2d 602).

Defendants having satisfied their initial burden, plaintiff must now satisfy his shifted burden to "produce competent medical evidence, based upon objective medical findings and diagnostic tests, proving the existence of triable issues of fact" (Dongelewic v Marcus, 6 AD3d 943, 943; see, Brandt-Miller v McArdle, 21 AD3d 1152; Franchini v Palmieri, 307 AD2d 1056, affd 1 NY3d 536). This plaintiff failed to do. Plaintiff submits Hart's sworn affidavit in which he indicates that after a 3½-year cessation of treatment he again treated plaintiff for vertigo symptoms on January 18, 2006. This unexplained cessation of treatment at a time when plaintiff's condition was improving, followed by the resumption of treatment 3½ years later soon after this summary judgment motion was filed is fatal to plaintiff's claim of serious injury under the permanent consequential limitation or significant limitation categories (see, Pommells v Perez, 4 NY3d 566; Karabchievsky v Crowder, 24 AD3d 614; Ketz v Harder, 16 AD3d 930).

Moreover, even though Hart's affidavit elaborates as to the objective medical basis for his initial diagnosis of vertigo, the affidavit fails to remedy any of the other evidentiary deficiencies in plaintiff's case. Hart's opinion that the alleged vertigo occurs only "occasionally" with "certain movements" confirms that the vertigo constitutes no more than a mild or slight limitation. Hart fails to provide any objective medical basis or explanation for the conclusory statement that his January 2006 examination of plaintiff's neck revealed a continued "abnormal" range of motion. Nor does he offer any medical basis for his diagnosis that plaintiff still suffers from "chronic headache and neck pain with occasional migraines as a result of the motor vehicle accident". On the issue of causation, Hart asserts in a conclusory fashion that plaintiff's alleged vertigo is causally related to the accident without adequately explaining the departure from his previous conclusion in May 2002 that the vertigo was possibly caused by a perilymph fistula. Finally, Hart also fails to explain the contradictions [*4]between his June 2002 opinion that plaintiff was "considerably better" and was expected to "continue to improve", and his present opinion that plaintiff is permanently disabled by vertigo.

Under these circumstances, plaintiff has failed to raise a material issue of fact warranting the denial of defendants' summary judgment motion (see, Grange v Keeter, 23 AD3d 886; Mack v Goodrich, 11 AD3d 846; Adams v Pagano, 1 AD3d 779; Buster v Parker, 1 AD3d 659; Temple v Doherty, 301 AD2d 979; Drexler v Melanson, 301 AD2d 916; Serrano v Canton, 299 AD2d 703).Accordingly, for the foregoing reasons, it is

ORDERED that the motion is granted, without costs, and the complaint in Action #

1 is dismissed.

THIS DECISION SHALL CONSTITUTE THE ORDER OF THE COURT. THE ATTORNEY FOR THE DEFENDANTS IN ACTION #

1 SHALL ENTER THIS ORIGINAL DECISION/ORDER WITHIN 20 DAYS OF ITS DATE AND PROVIDE A COPY WITH PROOF OF ITS ENTRY ON THE OPPOSING ATTORNEY(S) OR THE PRO SE LITIGANT(S), AS THE CASE MAY BE.

Dated:

_______________________________

HON. VINCENT J. REILLY JR.

Supreme Court Justice Footnotes

Footnote 1: Plaintiff has evidently abandoned his claim under the significant disfigurement category of serious injury.