Spitz v Lavo

[*1] Spitz v Lavo 2008 NY Slip Op 50333(U) [18 Misc 3d 1137(A)] Decided on February 12, 2008 Supreme Court, Broome County Lebous, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 12, 2008
Supreme Court, Broome County

Ann Spitz, Plaintiff,

against

John Lavo and Joseph Lavo, Defendants.



2007-0731



Counsel for Plaintiff:

STEVEN GENACK, ESQ.

32 Broadway - Suite 1710

New York, NY 10004

Counsel for Defendants:

Hickey, Sheehan & Gates, P.C.

By: Gregory A. Gates, Esq., of Counsel

160 Hawley Street

P.O. Box 2124

Binghamton, NY 13902

Ferris D. Lebous, J.

Plaintiff Ann Spitz commenced this action against defendants John Lavo and Joseph Lavo seeking money damages for personal injuries suffered in an automobile accident. By way of this motion, defendants move for summary judgment dismissing the complaint based upon plaintiff's alleged failure to establish a serious injury pursuant to Insurance Law § 5102. Plaintiff opposes the motion. The court heard oral argument from counsel on January 18, 2008.

BACKGROUND

On October 7, 2006, at approximately 4:00 p.m., defendant Joseph Lavo, then age 18, was driving his father's vehicle with permission and pulled into Manley's Gas Station located at 431 East Main Street in the Village of Endicott, Broome County, New York. At the same time, plaintiff Ann Spitz, then age 61, was a passenger in another vehicle that was parked in the Manley's parking lot. Joseph Lavo exited his vehicle to go into the convenience store, but left the vehicle in gear. The Lavo vehicle slowly rolled forward striking the rear of plaintiff's vehicle which then rolled slightly forward before stopping.

Plaintiff did not receive any medical treatment at the scene nor did she go to an emergency room. It is undisputed that the only medical treatment plaintiff has ever received following this accident were chiropractic treatments with Samuel Cooper, D.C., with whom she was already treating for pre-existing problems which will be discussed below. Plaintiff was also examined by another chiropractor, Daniel Fluegel, to whom she was referred for an independent evaluation by her no-fault carrier.

A brief discussion of plaintiff's previous accidents is warranted. According to plaintiff's medical history as reported to Dr. Fluegel, plaintiff suffered from a pre-existing disability and injuries resulting from prior accidents and mishaps. On March 13, 2006, plaintiff was operating a vehicle and leaned over to get her purse when the plastic covering of the seatbelt mechanism "stabbed her in the right ribs" (Defendants' Ex 5). Also in March 2006, plaintiff fell when furniture gave out and she struck a portable heater and fractured two ribs (Def Ex 5). Lastly, on April 13, 2006, plaintiff was parked in a Wal-Mart parking lot when a vehicle that was backing up at 20 m.p.h. struck her vehicle (Def Ex 5).

With respect to this accident of October 7, 2006, plaintiff alleges she suffered soft tissue injuries to her cervical, lumbar and thoracic spine. Plaintiff further alleges these injuries qualify as a serious injury pursuant to Insurance Law § 5102 under two of the statutory categories, namely: (1) significant limitation of use of a body function or system; and (2) the so-called 90/180 day category (Plaintiff's Verified Bill of Particulars, ¶ 11). By way of this motion, defendants contend that plaintiff has failed to establish a serious injury under either category as a matter of law.

DISCUSSION

On a defense motion seeking summary judgment relative to the serious injury threshold, it is well-settled that the defendant "[b]ears the initial burden of establishing the absence of a serious injury as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]" (McElroy v Sivasubramaniam, 305 AD2d 944, 945 [*2][2003]). If a defendant meets this initial burden, the burden then shifts "[t]o plaintiff to demonstrate the existence of a triable issue of fact, through competent medical evidence based on objective findings and diagnostic tests [citations omitted]" (Armstrong v Morris, 301 AD2d 931, 932 [2003]).

1.Significant limitation of use of a body function or system

The Court of Appeals has explained that the "limitation of use" may be established in one of two ways, namely by medical proof of a quantitative percentage (e.g., a numeric percentage of a loss of range of motion) or, in the alternative, medical proof of a functional impairment (excluding loss of range of motion) by way of a medical expert's qualitative assessment of plaintiff's current condition as compared to her normal function (Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Moreover, it is well-settled that the term "significant" means the "limitation" must be shown to be more than minor, mild or slight as established by expert medical proof (Licari v Elliott, 57 NY2d 230, 236 [1982]). The durational and causation elements of this category must be demonstrated by competent medical proof as well (Albanese v Stevens, 148 AD2d 805, 806 [1989]). Proof of permanency is not a required element of this category (Miller v Miller, 100 AD2d 577 [1984], rvd on other grounds 68 NY2d 871 [1986]).

In support of their motion, defendants submit plaintiff's medical records from Dr. Cooper, as well as the no-fault report from Dr. Fluegel. In the first instance, the court notes that defendants are entitled to rely upon plaintiff's own medical records in support of their motion for summary judgment (Tuna v Babenderede, 32 AD3d 574 [2006]). With respect to Dr. Cooper's records, defendants argue that the treatment rendered to plaintiff by Dr. Cooper after this accident was virtually the same as had been rendered prior to this accident. Furthermore, defendants point to two sets of plaintiff's X-rays, one taken before this accident on March 1, 2006 compared to the second set taken on October 10, 2006 after this accident. Dr. Fluegel compared the pre-accident X-ray to the post-accident X-ray and found as follows:

I compared the two x-rays and they look identical as far as the sets from March and October and what I found was a slight straightening of the cervical lordosis and degeneration at multiple levels at the cervical spine with spurring which I consider preexisting on the cervical spine films and thoracic films were unremarkable. The lumbar films showed a grade II spondylolisthesis of L5 anterior to S1 with some advanced DJD at L5-S1 which I feel is preexisting and slight dextrorotatory scoliosis of the lumbar spine.

(Def Ex 5, p 3).[FN1]

Dr. Fluegel concluded that plaintiff suffered from "[a] preexisting cervical spondylosis and lumbar spondylolisthesis at L5-S1 which were aggravated by the rear end incident, 10/7/06" [*3](Def Ex 5, p 3).

The court finds that defendants have met their initial burden of establishing that plaintiff's injuries are only minor, mild or slight, thus shifting the burden to plaintiff to come forward with objective medical proof of a significant limitation of use of a body function or system.

In opposition, plaintiff has come forward with an affidavit from her treating chiropractor, Samuel Cooper, D.C. (Cooper Affidavit, attached as Exhibit 2 to Genack Affirmation). Dr. Cooper outlines various positive orthopedic tests he conducted and avers, among other things, that plaintiff has a 20 degree lumbar range of motion extension (or a 10 degree reduction) and is permanently disabled "to a level of 75%" (Cooper Affidavit, ¶¶ 2, 5 & 9). Plaintiff's counsel argues that Dr. Cooper's delineation of a percentage of a reduction in plaintiff's range of motion and overall disability level create questions of fact with respect to this category (Genack Affirmation, ¶ 9).

The court finds Dr. Cooper's affidavit inadequate on the merits.[FN2] It is undisputed here that plaintiff was involved in at least three prior accidents and had been treating with Dr. Cooper prior to this accident. In short, plaintiff had a symptomatic preexisting condition. As such, it was plaintiff's burden to submit objective medical evidence to distinguish the aggravation of her preexisting condition from the preexisting condition itself (Dabiere v Yager, 297 AD2d 831, 832 [2002], lv denied 99 NY2d 503 [2002]).

A review of plaintiff's medicals reveals that she has failed to meet her burden by failing to submit any objective evidence, expert or otherwise, "[b]y which the claimed aggravation of [her] injuries can be measured [citation omitted]" (Pinkowski v All-States Sawing & Trenching, Inc., 1 AD3d 874, 876 [2003]). Dr. Cooper does make a reference to plaintiff's neck curve reversal and anterolisthesis being "made worse" (Cooper Affidavit, ¶ 6), but does not otherwise explain that statement in medical terms. Additionally, Dr. Cooper does not provide any objective evidence by which to establish whether plaintiff's 75% disability relates to her underlying preexisting condition, the subject accident, an aggravation, or some combination thereof (Hines v Capital Dist. Transp. Auth., 280 AD2d 768 [2001]). Finally, the court notes that Dr. Cooper's opinion as to the permanency, if any, of plaintiff's injuries are without probative value given the fact that permanency is not a necessary element of this category.

Consequently, the court finds that plaintiff has not met her burden of demonstrating the existence of a triable issue of fact, through competent medical evidence based on objective medical findings and diagnostic tests, of a significant limitation of use of a body function or system in relation this accident. [*4]

2.90/180 day category

The 90/180 day serious injury category requires proof of a "[m]edically 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" (Insurance Law § 5102 [d]). To satisfy this category, plaintiff must establish that her usual and customary activities were curtailed "to a great extent rather than some slight curtailment" based upon objective medical findings (Licari, 57 NY2d at 235; Monk v Dupuis, 287 AD2d 187, 191 [2001]). Proof of permanency is not a required element of this category (Clements v Lasher, 15 AD3d 712, 713 [2005]).

For the same reasons as stated above, the court finds defendants have met their burden on this category. With respect to plaintiff's burden, Dr. Cooper's affidavit does not specifically address plaintiff's condition during the 180 days immediately following this accident or whether he issued any restrictions on plaintiff's activities during this time. Nor is plaintiff's own affidavit sufficiently specific with respect to the curtailment, if any, of her usual and customary daily activities during the relevant time period (Plaintiff's Affidavit, attached as Exhibit 1 to Genack Affirmation). Thus, plaintiff failed to meet her burden of submitting competent medical evidence from the first 180 days indicating that she was medically prevented from performing substantially all of her usual and customary daily activities during that time frame (Monk, 287 AD2d 187).

Parenthetically, the court notes that plaintiff's memorandum of law makes reference to the separate category of "permanent loss of use" (Plaintiff's memorandum of law, p 5). However, plaintiff did not plead this category in either her complaint or verified bill of particulars. In any event, even if the permanent loss of use category had been pled, plaintiff's proof would fail for the same reasons as stated above.

CONCLUSION

In view of the foregoing, the court finds that defendants' motion for summary judgment dismissing plaintiff's complaint should be GRANTED and the complaint is hereby DISMISSED.

The foregoing constitutes an order of the court upon which judgment may be entered according to its terms.

It is so ordered.

February 12, 2008

Binghamton, New York

s/ Ferris D. Lebous [*5]

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1:The court finds the date on which the X-rays were interpreted versus the date some months later on which they were formally transcribed to be without consequence for purposes of this motion.

Footnote 2:The court finds that defendants have failed to support their alternative argument that Dr. Cooper's opinions in this case exceeded the scope of his authority as a chiropractor under Education Law section 6551.