Haack v Kriss

[*1] Haack v Kriss 2006 NY Slip Op 52630(U) [21 Misc 3d 1113(A)] Decided on October 19, 2006 Supreme Court, Albany County Stein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2006
Supreme Court, Albany County

Robert E. Haack and Mary Haack, Plaintiffs,

against

Charles T. Kriss and Marilyn J. Kriss, Defendants.



6081-03



APPEARANCES:

ANDERSON, MOSCHETTI & TAFFANY, PLLC

Attorneys for Plaintiffs

(Jeffrey K. Anderson, Esq., Of Counsel)

26 Century Hill Drive, Suite 206

Latham, NY 12110

PENNOCK, BREEDLOVE & NOLL, LLP

Attorneys for Defendants

(William C. Firth, Esq., Of Counsel)

1407 Route 9, Nine North

Building Four, 2nd Floor

Clifton Park, New York 12065

Leslie E. Stein, J.

Plaintiff commenced the present action to recover damages allegedly resulting from injuries sustained in an automobile accident.[FN1] Plaintiff asserts that he suffered a serious injury as defined by Insurance Law §5102(d). In his Bill of Particulars, plaintiff indicates that his injuries prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for at least ninety days during the one hundred eighty days following the accident (hereinafter 90/180) and that he suffered a significant limitation of use of [*2]his cervical and/or lumbar spine as a result of the accident. Defendant now moves for summary judgment; plaintiff opposes the motion with regard to his 90/180 claim, but has not addressed the significant limitation claim.

In order to prevail in a motion for summary judgment, the movant "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has established a right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish the existence of a genuine issue of material fact with admissible proof (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). In making the determination of whether there is an issue of triable fact, the Court will view the evidence in the light most favorable to the party opposing the motion, affording that party the benefit of every reasonable inference (see Boyce v Vazquez, 249 AD2d 724, 726 [1998]; Simpson v Simpson, 222 AD2d 984, 986 [1995]).

The Court of Appeals has held that a Court should find that a prima facie case has not been established only if plaintiff "suffered no serious injury" as a matter of law and there is "no line of reasoning by which the jury could []conclude[] that plaintiff suffered a [serious injury]" (Licari v Elliot, 57 NY2d 237, 238, 240, supra [emphasis added]). Pursuant to these requirements, defendant must provide admissible evidence sufficient to establish that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102[d] in order to establish his entitlement to summary judgment (see Santos v Marcellino, 297 AD2d 440, 441 [2002]; quoting Blanchard v Wilcox, 283 AD2d 821, 822 [2001]; Kristel v Mitchell, 270 AD2d 598, 598 [2000]; Weaver v Derr, 242 AD2d 823, 824 [1997]). Once such a showing has been made, the burden shifts to plaintiff to provide competent medical evidence based upon objective medical findings and diagnostic tests to support his claim (see Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Weller v Munson, 309 AD2d 1098, 1098 [2003]; Jordan v Baine, 241 AD2d 894, 895 [1997]; Tankersley v Szesnat, 235 AD2d 1010, 1012 [1997]; Eisen v Walter & Samuels, Inc., 215 AD2d 149, 150 [1995]).

Mere conclusory allegations of a physician, without more, are insufficient as a matter of law to establish a prima facie case of "serious injury" (Lopez v Senatore, 65 NY2d 1017, 1019 [1985]). Thus, an expert's qualitative evaluation of plaintiff's condition may be sufficient if the "evaluation has an objective basis and compares the plaintiff's limitation to the normal function, purpose and use of the affected body organ, member, function or system" (Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345, 350-351 [2002]). Further, "it is required that an expert affidavit identify the specific objective findings that serve as a predicate for the opinion rendered and also that an explanation be provided establishing a sufficient causal relationship between that objective finding and the injury, condition or limitation giving rise to the claim of serious injury, as well as between the injury and the accident itself" (Serrano v Canton, 299 AD2d 703, 705 [2002]).

The proof shows that, on November 22, 2000, defendant lost control of his van due to inclement weather and collided with plaintiff's truck. Plaintiff was admitted to the emergency room of Albany Medical Center Hospital immediately following the accident, where he was treated and released. Plaintiff returned to the hospital intermittently in the weeks following the accident and received further treatment from several doctors throughout the next few months. [*3]With the approval of plaintiff's personal physician, plaintiff did not report to work for approximately six months after the accident. Plaintiff alleges he continued to suffer severe pain and discomfort during these six months.

Defendant has submitted a copy of the pleadings and the affirmation of Bryan Bilfield, M.D., who, after reviewing plaintiff's records and conducting a physical examination, concluded that plaintiff's injuries are merely an exacerbation of pre-existing medical problems. Defendant did not submit copies of plaintiff's medical records in support of the motion.

It is well settled that, in a no-fault action, the affidavit of a medical doctor may be sufficient to satisfy the initial burden of proof on a motion for summary judgment (see Gaddy v Eyler, 79 NY2D 955 [1992]). However, the Court notes that defendant herein has failed to provide copies of any medical records or other medical evidence relied upon by Dr. Bilfield (see Monk v Dupois, 287 AD2d 187 [2001]; see also Fitzmaurice v Chase, 288 AD2d 651, 652 [2001]). Furthermore, although Dr. Bilfield apparently reviewed some records containing plaintiff's medical history, his report does not clearly indicate which medical records were reviewed or that he reviewed all relevant medical records. Notably, there is no mention by Dr. Bilfield of any records of Dr. Drew, the physician who treated plaintiff on an ongoing basis prior to and immediately following the accident. Moreover, Dr. Bilfield alleges that certain medical records relating to plaintiff's left shoulder injuries were not provided to him and that he possessed "no x-rays or MRI studies for [plaintiff's] other complaints".

If all relevant records were reviewed, Dr. Bilfield's report would be minimally sufficient to meet defendant's initial burden of proof because he refers to objective medical evidence and, based on that evidence, opines that the accident would have only caused an exacerbation of the previous injury and would have prevented plaintiff from performing his usual and customary activities for only six to eight weeks. However, even if the burden then shifted to plaintiff, plaintiff has come forward with his medical records and Dr. Drew's affirmation, which set forth objective evidence that plaintiff was prevented from performing his usual and customary activities for 90 out of the first 180 days following the accident (see Santos v Marcellino, 297 AD2d 440, 442 [2002][palpable trigger points and spasms may constitute objective medical evidence of a serious injury]; Clements v Lasher, 15 AD3d 712 [2005]; Barbagallo v Quackenbush, 271 AD2d 724, 725; McGuirk v Vedder, 271 AD2d 731, 732; see also, Toure v Avis Rent A Car Sys., 98 NY2d 345, 357). While the weight of Dr. Drew's opinion and credibility may be subject to question, it is clearly sufficient to create a question of fact. In addition, plaintiff has submitted an affidavit alleging that he was prevented from performing his usual and customary activities for the required period of time.

Upon reviewing the papers submitted and in the absence of any opposition, summary judgment shall be granted dismissing the claim that plaintiff suffered a significant limitation of use of his cervical and/or lumbar spine as a result of the accident.

Accordingly, it is hereby

ORDERED, that defendant's motion for summary judgment dismissing plaintiff's claim that he suffered a significant limitation of use of his cervical and/or lumbar spine as a result of the accident is granted; and it is further

ORDERED, that defendants' motion for summary judgment dismissing plaintiff's claim that he has sustained a serious injury in that his injuries prevented him from performing [*4]substantially all of the material acts which constituted his usual and customary daily activities for at least ninety days during the one hundred eighty days following the accident is denied.

This shall constitute the Decision and Order of the Court. All papers are returned to plaintiffs' attorneys, who are directed to enter this Decision and Order without notice, and to serve defendants with a copy of the Decision and Order with notice of entry.

So Ordered.

Dated: October 19, 2006

at Albany, New York_____________________________

Leslie E. Stein, J.S.C.

Footnotes

Footnote 1: "Plaintiff" shall refer to Robert A. Haack and "defendant" shall refer to Charles T. Kriss. The spouses of both parties are included in this action solely due to the fact that they are the legal owners of the automobiles involved in the accident.