Ashquabe v McConnell

Ashquabe v McConnell 2007 NY Slip Op 10294 [46 AD3d 1419] December 21, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

Torrence Ashquabe, Respondent, v Cynthia J. McConnell, Appellant.

—[*1] Barth Sullivan Behr, Buffalo (Pierre A. Vincent of counsel), for defendant-appellant.

Law Office of Kenneth Bernas, Buffalo (Kenneth P. Bernas of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered November 8, 2006 in a personal injury action. The order, among other things, denied defendant's motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained when a motor vehicle driven by defendant rear-ended the vehicle driven by plaintiff. Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Defendant failed to meet her initial burden of establishing that "plaintiff's alleged injuries sustained in the accident were preexisting" (Clark v Perry, 21 AD3d 1373, 1374 [2005]). In support of her motion, defendant submitted the report of a physician who examined plaintiff on behalf of defendant. According to that physician, plaintiff "incurred a cervical muscle strain as a result of the motor vehicle accident." The physician further stated that MRI scans of plaintiff's cervical spine "reveal[ed] degenerative disc disease/spondylosis at [C5-6] and [C6-7, as well as] associated mild disc bulging," and that MRI scans of plaintiff's thoracic spine "reveal[ed] degenerative disc disease at [T4-5] and [T5-6]." The physician failed to address the herniation at C6-7 observed by a radiologist, however, although he indicated that he had reviewed the radiologists' reports accompanying the MRI scans of plaintiff's cervical spine. In addition, the physician noted that plaintiff "denie[d] history of any similar preexistent pain conditions predating the motor vehicle accident," but he failed to address the significance of the absence of any prior complaints of similar pain. We thus conclude that the physician's report does not constitute "persuasive evidence that plaintiff's alleged pain and injuries were related to a preexisting condition" (Carrasco v Mendez, 4 NY3d 566, 580 [2005]; see also Gentile v Snook, 20 AD3d 389 [2005]; cf. Clark, 21 AD3d 1373 [2005]). Indeed, we conclude that the physician's analysis was conclusory and therefore "insufficient to establish that plaintiff's pain might be chronic and unrelated to the accident" (Brown v Dunlap, 4 NY3d 566, 577 [2005]). Present—Gorski, J.P., Martoche, Lunn, Fahey and Pine, JJ. [See 14 Misc 3d 211 (2006).]