Viscusi v Ostrowski
2007 NY Slip Op 52652(U) [25 Misc 3d 1213(A)]
Decided on September 12, 2007
Supreme Court, Schenectady County
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This opinion is uncorrected and will not be
published in the printed Official Reports.
Viscusi v Ostrowski
Decided on September 12, 2007
Supreme Court, Schenectady County
Joseph Viscusi Jr., Plaintiff,
Casimir J. Ostrowski, Defendant.
Taylor & Associates
Columbia Circle Office Park
One Columbia Circle
Albany, NY 12203
Charles R. Harding, Esq.
1343 Balltown Rd.
Niskayuna, NY 12309
Vincent J. Reilly, J.
On February 26, 2004, plaintiff was standing on Kings Road in the Town of Rotterdam directing traffic around a telephone pole that had fallen into the road. As defendant's vehicle approached plaintiff and the fallen telephone pole, plaintiff attempted to signal to defendant by waiving his arms. Nonetheless, defendant's vehicle struck the fallen telephone wires which were still attached to the telephone pole and, as a result, the telephone pole was propelled into plaintiff's leg.Plaintiff was thrown to the ground and sustained a concussion, causing him to lose consciousness for several minutes. Plaintiff thereafter commenced this action against defendant seeking to recover damages for personal injuries to his leg along with certain cognitive losses resulting from post-concussive syndrome and post-traumatic stress disorder. As amplified by his bill of particulars, plaintiff alleges that these injuries constitute serious injuries under the permanent loss of use, permanent consequential limitation of use, and significant limitation of use categories of Insurance Law § 5102 (d). Defendant now moves for summary judgment dismissing the complaint upon the ground that these alleged injuries fail to meet the "serious injury" threshold established by that statute. Plaintiff opposes the motion.
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 [*2]categories alleged (see, Weller v Munson, 309 AD2d 1098, lv dismissed, lv denied 2 NY3d 782; Anderson v Persell, 272 AD2d 733). Initially addressing plaintiff's claim that his leg and cerebral injuries constitute serious injuries under the "permanent loss of use" category of Insurance Law § 5102 (d), it is well established that the loss of use under this category must be total in order to qualify (see, Oberly v Bangs Ambulance, 96 NY2d 295, 299; Paradis v Burlarley, 3 AD3d 718; Best v Bleau, 300 AD2d 858). The proof submitted by defendant establishes that plaintiff has not suffered a total loss of use of his leg nor has he sustained a total loss of cognitive function, thus satisfying defendant's initial burden with respect to the permanent loss of use category (see, Davis v Evan, 304 AD2d 1023). In opposition to the motion, plaintiff relies upon the affidavit of his neuropsychologist who opines that plaintiff's loss of cognitive functioning is permanent but only partial. Moreover, plaintiff offers no proof tending to establish that any limitations resulting from his leg injury are total. Accordingly, plaintiff has failed to create a genuine question of fact as to the permanent loss of use category of serious injury (see, Brandt-Miller v McArdle, 21 AD3d 1152; Palmer v Moulton, 16 AD3d 933).
Turning to the significant limitation of use and permanent consequential limitation of use categories, a significant' or consequential' limitation of use must be demonstrated through objective quantitative evidence of a diminished range of motion or objective 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; Parks v Miclette, 41 AD3d 1107; Gehrer v Eisner, 19 AD3d 851). The medical evidence submitted must be based upon objective tests and findings, and must demonstrate that the limitation of use is more than mild, minor or slight (see, Dabiere v Yager, 297 AD2d 831; Blanchard v Wilcox, 283 AD2d 821).
Initially with regard to plaintiff's claimed leg injury, defendant offers plaintiff's emergency room records and deposition testimony which demonstrate that X rays taken of plaintiff's leg immediately following the accident were unremarkable and that plaintiff sought relatively limited medical treatment thereafter. This proof demonstrates the lack of any objective medical limitations resulting from plaintiff's leg injury and satisfies defendant's initial burden to prove that plaintiff did not sustain a "serious injury" to his leg as a result of the accident (see, Franchini v Palmieri, 1 NY3d 536; Flores v Singh, 13 AD3d 203). The burden thus shifts to plaintiff to produce competent medical evidence in admissible form sufficient to raise a material issue of fact regarding whether he suffers from a significant limitation of use or permanent consequential limitation of use of his leg (see, Rose v Furgersen, 281 AD2d 857, lv denied 97 NY2d 602; Zupan v Hart, 266 AD2d 795, 796). In opposition to defendant's showing, plaintiff merely offers unsworn medical records and his own affidavit describing the limitations imposed by his leg injury. Although a defendant moving for summary judgment may satisfy his initial burden by relying upon plaintiff's unsworn medical records (see, Seymour v Roe, 301 AD2d 991), a plaintiff's failure to furnish competent medical expert proof in opposition to the motion is fatal (see, John v Engel, 2 AD3d 1027). Accordingly, plaintiff has failed to raise a triable issue of fact with regard to his leg injury.
The Court will next address plaintiff's claim that the residual effects from his cerebral injury
constitute a serious injury under the significant limitation of use and permanent consequential
limitation of use categories of Insurance Law § 5102 (d). Specifically, plaintiff contends
that he suffers from
post-concussive syndrome and diminished cerebral functioning in the form of impaired visual [*3]perception, diminished expressive and receptive language skills, difficulties with visual attention and concentration, and loss of recent memory. In support of defendant's motion for summary judgment dismissing this aspect of plaintiff's claim, defendant offers the sworn report and affidavit of Robert J. McCaffrey, a neuropsychologist who reviewed plaintiff's medical records and performed an independent neuropsychological examination of plaintiff. After administering a battery of tests and concluding that the results were inconsistent, McCaffrey opines that plaintiff is exaggerating his neurological status and that in reality plaintiff is not experiencing any clinically significant neuropsychological or cognitive sequelae as a result of the accident. McCaffrey's report and affidavit sufficiently identify and explain the objective neurological tests he performed and his reason for concluding that plaintiff's inconsistent test results were suggestive of symptom exaggeration. In the Court's view, the evidence presented by defendant is sufficient to establish that plaintiff did not sustain a cognitive, psychological or nueropsychological serious injury under the significant limitation of use and permanent consequential limitation categories of Insurance Law 5102 (see, Simpson v Feyrer, 27 AD3d 881; Armstrong v Morris, 301 AD2d 931).
In an effort to raise a triable issue of fact in opposition to the motion, plaintiff submits various non-medical factual affidavits, copies of his medical records and the affidavit of his treating nueropsychologist. Plaintiff's medical records and the non-medical affidavits do not constitute competent medical evidence and are insufficient to raise a triable issue of fact in that regard (see, Nociforo v Penna, 42 AD3d 514; Callas v Malone, 135 AD2d 1016). However, plaintiff also submits the sworn affidavit of his neuropsychologist, Maria Lifrak, who evaluated and treated plaintiff on five occassions during the year following the accident. Lifrak explains in her affidavit that plaintiff's loss of consciousness following the accident constitutes objective evidence of cerebral trauma and that the symptoms described by plaintiff, namely loss of short-term memory, visual impairments and difficulty in processing information, are the classic pattern of symptoms of a traumatic brain injury and post-concussive syndrome. During her evaluation, Lifrak performed a series of neuropsychological tests in order to objectively measure numerous area of cognitive functioning and substantiate plaintiff's claimed symptoms. Based upon this battery of tests, which she explains in detail, Lifrak concludes that plaintiff suffers from post-concussive syndrome and post-traumatic stress disorder as evidenced by mild impairments in basic visual perception skills, mild impairments in expressive and receptive language function, mild impairments in basic memory skills, mild impairments in attention and concentration, and mild depression and anxiety.
Lifrak further opines that while each of these impairments may be characterized as "mild", the combination of these mild deficiencies has a significant effect on plaintiff's ability to function. She explains that several mild impairments in brain function can be debilitating to an individual such as plaintiff whose employment requires complex decision making and multi-tasking. Specifically, the evidence demonstrates that plaintiff operates his own business in which he simultaneously performed multiple tasks and complex managerial functions. Plaintiff avers that prior to the accident he was able to perform these tasks with ease for eight hours a day, five days a week. However, due to the various cognitive losses described by Lifrak, plaintiff states that he has been unable to return to full-time work since the accident, cannot perform the tasks he once did, and has difficulty operating his business. According to Lifrak, plaintiff's symptoms persisted throughout the year of her treatment and that cognitive impairments of such duration are almost always permenant. The foregoing forms the basis of Lifrak's opinion that plaintiff's post-concussive syndrome and post-[*4]traumatic stress disorder constitute a significant limitation of use and permanent consequential limitation of use within the meaning of Insurance Law 5102 (d).
Although typically a medical expert's characterization of an injury as "mild" is fatal to a claim under the significant limitation of use or permanent consequential limitation of use categories of serious injuries, Lifrack's mere use of the word "mild" in describing plaintiff's various cognitive impairments should not automatically preclude a finding of serious injury under the circumstances of this case. Here, the medical evidence offered by plaintiff demonstrates the existence of multiple mild impairments that are permanent in nature and have a combined impact that significantly limits plaintiff's ability to function on a daily basis. In the Court's view, this proof is sufficient to create a material issue of fact regarding whether plaintiff's injuries qualify as serious injuries under the significant limitation of use and permanent consequential limitation of use categories of Insurance Law § 5102 (d) (see generally, Marks v Brown, 3 AD3d 648; Mrozinski v St. John, 304 AD2d 950).Finally, contrary to defendant's contention, plaintiff's cessation of treatment with Lifrak approximately two years prior to the execution of her affidavit does not render her opinion deficient as a matter of law. Lifrak's averment that plaintiff's injuries are permanent and that any further examination was unnecessary is sufficient to explain the lack of a recent examination (see, Dooley v Davey, 21 AD2d 1242). Under the circumstances, the absence of a recent examination impacts the weight to be given Lifrak's opinion by the jury and is not appropriately considered within this summary judgment motion.
For the foregoing reasons, it is
ORDERED that the motion is denied in part, without costs.
THIS DECISION SHALL CONSTITUTE THE ORDER OF THE COURT. THE ATTORNEY FOR THE PLAINTIFF SHALL ENTER THIS ORIGINAL DECISION/ORDER AND SERVE A COPY OF IT UPON THE OPPOSING ATTORNEYS OR PRO SE LITIGANTS AS THE CASE MAY BE.
Hon. Vincent J. Reilly, Jr.
Supreme Court Justice