Giandolfo v Howarth
Annotate this CaseDecided on April 29, 2004
District Court Of Nassau County, First District,
BENJAMIN GIANDOLFO, Plaintiff,
against
WILLIAM J. HOWARTH and DEBORAH NICHOLSON, Defendants.
INDEX NO. 005137/03325(d)
Steven M. Jaeger, J.
This motion by defendants for summary judgment in this automobile accident case upon the grounds that the plaintiff did not incur a "serious injury" as defined by Insurance Law §5102(d) is granted.
The accident occurred on February 17, 2001, when the plaintiff's vehicle was hit in the rear near the intersection of Route 25 and Rural Place, in the Town of Huntington, Suffolk County. The plaintiff, 19, claims soft tissue injury to his neck and back. He underwent chiropractic treatment for an unspecified period of time during 2001 and has not sought or received further care since then. He did appear for an examination before his physician on March 31, 2004 evidently as a result of this motion. There is, therefore, an unexplained gap of approximately three years between medical visits.
Defendant's independent examining neurologist and orthopedist conclude in their affirmed reports that plaintiff sustained only sprains as a result of the accident, which are now resolved, and which do not rise to the level of serious injuries.
Plaintiff submits in opposition the affidavit of his consulting orthopedist. He opines, based on examinations indicating tenderness, muscle spasm, and limited range of motion, that plaintiff sustained cervical and lumbar derangement, and that these conditions are a result of the accident and the cause of plaintiff's present complaints of pain, limitations of movement, and inability to function normally. He provides numerical percentages for the clinical "loss of range of motion" but this is unsupported by any objective proof of injury such as an MRI or X-ray.
However, the defendant's examining orthopedist, Dr. Stephen Zolan, states that plaintiff did undergo an MRI for his cervical and lumbar spines. There is no mention of the results nor does the plaintiff provide any MRI reports, X-rays or other objective evidence for his claimed injury. No evidence is provided indicating that the plaintiff either missed time from school or work. He is currently employed as an electrician and there are no claims that he is unable to [*2]perform any of his normal duties.
Under the "no-fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained (Licari v. Elliot, 57 NY2d 230 [1982]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320; Winegrad v. New York Univ. Medical Center, 64 NY2d 851). In the present action, the burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury" (Lowe v. Bennett, 122 AD2d 728, affirmed, 69 NY2d 701). When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury (Licari, supra; Lopez v. Senatore, 65 NY2d 1017).
Thus, a medical affirmation or affidavit which is based on a physician's personal examination and observations of plaintiff, is an acceptable method to provide a doctor's opinion regarding the existence and extent of a plaintiff's serious injury (O'Sullivan v. Atrium Bus Co., 246 AD2d 418). However, in order to be sufficient to establish a prima facie case of serious physical injury the affirmation or affidavit must contain medical findings, which are based on the physician's own examination, tests and observations and review of the record rather than manifesting only the plaintiff's subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the CPLR to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice (see, CPLR 2106; Pichardo v. Blum, 267 AD2d 441, 700 NYS2d 863; Feintuch v. Grella, 209 AD2d 377, 619 NYS2d 593).
Clearly, a physician's affidavit which is premised on little more than plaintiff's subjective complaints is insufficient to establish a prima facie case of serious injury (Sulimanoff v. Ash Trans Corp., 259 AD2d 415; Grossman v. Wright, 268 AD2d 79; Villalta v. Schechter, 273 AD2d 299; Delaney v. Rafferty, 241 AD2d 537; Lincoln v. Johnson, 225 AD2d 593). To prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion is acceptable (Toure v. Avis Rent A Car Systems, Inc., 98 NY2d at 350). An expert's qualitative assessment of a plaintiff's condition is also probative, provided that: (1) the evaluation has an objective basis and, (2) the evaluation compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system (Toure v. Avis Rent A Car Systems, Inc., supra).
The submissions which the plaintiff offered in opposition to the motion failed to raise a triable issue of fact sufficient to rebut defendants' prima facie case.
The affidavits of defendants' independent examining neurologist and orthopedist indicate that examinations revealed no neurological abnormalities or deficits, and no orthopaedic injuries or deficits. The physicians specifically noted that plaintiff's subjective complaints of pain were [*3]unsupported by any objective medical evidence. This evidence amply satisfied defendants' initial burden of demonstrating that plaintiff did not sustain a serious injury.
The probative medical reports of the defendants' experts, including those of an orthopedist and a neurologist, prepared after physical examinations of the plaintiff indicated that (1) as a result of the accident, the plaintiff suffered sprain and "soft tissue injuries," (2) there was no evidence of disability or any permanent type of injuries which could be linked causally to the accident. This established a prima facie case (Koto v. Banal, 255 AD2d 557). A cervical strain is a soft tissue injury, and "mere soft tissue injury, even if persistent or protracted, will not qualify as a serious injury in the absence of competent medical evidence establishing a meaningful impairment or limitation as a result of the pain" (Rath v. Shafer, 267 AD2d 565).
The plaintiff's expert's affirmation does not provide any information concerning the nature of the plaintiff's medical treatment or any explanation for the three-year gap between plaintiff's initial medical treatment and his subsequent visit to the examining physician in March 2004 (Medina v. Zalmen Reis & Assocs., 239 AD2d 394; Behm v Radoccia, 2004 NY Slip Op. 02697 [2d Dept 2004]; Mendoza v Whitmire, 2004 NY Slip Op. 03106 [2d Dept 2004]). Accordingly, the motion is granted.
This constitutes the order and decision of this Court.
So Ordered:
District Court Judge
Dated:April 29, 2004
Decision Date: April 29, 2004
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