Bruno v Harmony, Inc.
Annotate this CaseDecided on September 13, 2005
Civil Court of the City of New York, Kings County
BARBARA BRUNO, Plaintiff
against
HARMONY, INC. HERBERT KULA, TOYATA MOTOR CREDIT, and GARY SAVARINO, Defendants
1649/01
P's Counsel: Nancy V. Wright
D's Counsel: Matthew K. Finkelstein
Eileen N. Nadelson, J.
This action arose out of an automobile accident in which Plaintiff was a passenger. Both Plaintiff and Defendant Toyota Motor Credit Corporation have moved for summary judgment. The crux of the issue is whether plaintiff has suffered a "serious injury" as defined in section [*2]5102(d) of New York's No-Fault Insurance Law.
Section 5102(d) of the Insurance Law defines a "serious injury" 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 constitute 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.
Initially, the burden is on the defendant in these types of actions to demonstrate that the plaintiff did not suffer a "serious injury" within the meaning of the statute. In support of this proposition, Defendant provided affirmations from two physicians that state, with a relative degree of medical certainty, that Plaintiff did not suffer a serious injury. To oppose this position, Plaintiff must set forth competent medical evidence based upon objective medical findings and diagnostic tests to support her assertion of serious injury. Trotter v. Hart, 285 AD2d 772, 728 N.Y.S.2d 561 (3d Dept. 2001).
Plaintiff in the instant case provided an affirmation of a physician in opposition to Defendant's motion for summary judgment. According to the physician, who was not Plaintiff's treating physician, Plaintiff was first examined by the doctor eight months after the accident and had a follow-up examination three years later which was shortly before the instant motion was filed.
Defendant has argued that the affirmation is three years old and therefore it is automatically insufficient to rebut Defendant's assertion of no serious injury unless a reasonable explanation for the gap is explained. Placencia v. Torres, 2003 NY Slip Op. 50561, 2003 NY M
isc. Lexis 91 (2003). However, the examination and affirmation were made within months of the motion, but the argument on the motion has been stayed for three years. Consequently, the affirmation is timely with respect to the motion it accompanies.
The doctor's findings state that an MRI conducted shortly after the accident indicated a bulging disc at L5/S1 causing a "mild bilateral foraminal stenosis," "tendinitis/tendinopathy in the supraspinatus," and that the cervical spine was within normal limits.
During the examination Plaintiff demonstrated "minimal tenderness over cervical paraspinals," "mild decreased flexion, extension and lateral rotation" of the cervical spine, "minimal tenderness over the anterior aspect of the left shoulder" within functional limits, "moderate decreased flexion and extension' of the lumbar spine, and good muscle power on her [*3]upper and lower extremities.
Included in the affirmation is a chart indicating the range of motion evidenced by the doctor during the examination. This chart indicates the following:
For Plaintiff's cervical spine, her loss in normal range of motion was 20% or less for flexion, extension, right rotation, left rotation, and right lateral flexion. Her loss in range of normal motion for left lateral flexion was approximately 25%. For Plaintiff's lumbar spine, her loss of range of motion was also 20% or less for each function analyzed.
The physician's affirmation concludes by stating that the prognosis is guarded and that permanency is present, but does not state that this conclusion is made with a reasonable degree of medical certainty, nor does the affirmation indicate the objective tests upon which this conclusion and the analysis were based.
The courts have long recognized that the legislative intent underlying the No-Fault law was to weed out frivolous claims and limit recovery to significant injuries. As such, the courts require objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345, 774 N.Y.S.2d 1197 (2002). Therefore, in order for Plaintiff to overcome Defendant's motion, she must evidence that she suffered a serious injury supported by credible medical evidence. See generally Placencia v. Torres, 2003 NY Slip Op. 50561U, 2003 NY Misc. Lexis 91 (2003).
A physician's affirmation has been held to be insufficient to rebut an assertion of no serious injury when the affirmation fails to set forth the objective basis for the conclusion that the patient suffered from a 10% to 15% limitation in her range of motion. Chinnici v. Brown, 295 AD2d 465, 744 N.Y.S.2d 186 (2d Dept. 2002). In the instant case, Plaintiff's physician also does not indicate the objective basis for his conclusions that Plaintiff has suffered a limitation in her range of motion. Further, the affirmation never states that the limitations mentioned are of a significant nature, a failure which has also been held to negate an assertion of serious injury. Ibragimov v. Hutchins, 8 AD3d 235, 777 N.Y.S.2d 663 (2d Dept. 2004).
The physician's affirmation presented by Plaintiff fails to state that any of the limitations noted are related, directly or indirectly, to the accident in question. For this reason also, the affirmation is insufficient to defeat Defendant's summary judgment motion. Montgomery v. Pena, 798 N.Y.S.2d 17, 2005 NY App. Div. Lexis 7159 (1st Dept. 2005).
Courts have held that a conclusion that a plaintiff has sustained a loss of 20% of her cervical spine establishes neither a significant nor consequential injury, Baker v. Donohue, 199 AD2d 661, 604 N.Y.S.2d 981 (3d Dept 1993), and simply using the word "permanent' in describing a plaintiff's condition is insufficient to raise a question of fact. Fountain v. Sullivan, 261 AD2d 795, 690 N.Y.S.2d 341 (3d Dept 1999). [*4]
Based on the foregoing, the court concludes that Plaintiff's physician's affirmation is insufficient to establish a prima facie case of serious injury, and therefore the court grants summary judgment in favor of Defendant Toyota Motor Credit Corporation.
Dated: September 13, 2005
__________________________
EILEEN N. NADELSON, J.C.C.
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