Franchini v. Palmieri , 763 N.Y.S.2d 381 ( 2003 )

Lahtinen, J.

(dissenting). We respectfully dissent. The proponent of summary judgment faces the “high threshold” of establishing that “there must be only one conclusion that can be drawn from the undisputed facts” (Sanchez v State of New York, 99 NY2d 247, 254 [2002]; see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). “The court’s role on a motion for summary judgment is to determine whether there is a material factual issue to be tried, not to resolve it” (Sommer v Federal Signal Corp., 79 NY2d 540, 554 [1992] [citation omitted]). The affidavit of Claude Guerra, the treating chiropractor of plaintiff Roseanne Franchini (hereinafter plaintiff), addresses his treatment of plaintiff, the nature of her injuries, the objective evidence of her injuries, causation and her prior injuries. The majority focuses on the issue of causation and, in particular, finds that Guerra did not adequately address plaintiffs preexisting injuries.

Where there is a preexisting injury that a defendant has established as being relevant to the injury in litigation, the failure of a plaintiffs expert “to indicate an awareness of the condition” can lead to the conclusion that the expert’s opinion on causation is fatally flawed even within the context of a motion for summary judgment (Kallicharan v Sooknanan, 282 AD2d 573, 574 [2001]; see Pajda v Pedone, 303 AD2d 729, 730 [2003]; Ginty v MacNamara, 300 AD2d 624, 625 [2002]). Here, however, the record reveals that plaintiffs’ expert was aware of plaintiffs preexisting problems when he formed his opinion. Guerra relates the history of the accident given by plaintiff, opines that plaintiffs injury was “a direct result of the accident of February 4, 1998,” and then adds that her injury “is separate and distinct from any pre-existing injuries that the patient may have had, * * * any pre-existing injuries had resolved prior to the February 9, 1998 exam, and were not responsible for the symptoms the patient exhibited during my treatment.” While Guerra’s opinions are necessarily based upon plaintiff providing a correct factual history, and both Guerra’s opinions and plaintiffs history will, no doubt, be challenged in a probing cross-examination at trial, we believe that the evidence in the record regarding the cause of plaintiffs purported physical problems following the accident is sufficient to avoid summary judgment (see Boehm v Mack, 255 AD2d 749, 750 [1998]). We would thus reverse that part of the order that granted defendant summary judgment dismissing the complaint.

Cardona, P.J., concurs. Ordered that the order is affirmed, with costs.