PAVELJACK, AMELIA L. v. CIRINO, DAVID P. , 941 N.Y.S.2d 407 ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
214
CA 11-02105
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
AMELIA L. PAVELJACK,
PLAINTIFF-RESPONDENT-APPELLANT,
V MEMORANDUM AND ORDER
DAVID P. CIRINO,
DEFENDANT-APPELLANT-RESPONDENT.
BURGIO, KITA & CURVIN, BUFFALO (WILLIAM J. KITA OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.
HOGAN WILLIG, GETZVILLE (JOHN B. LICATA OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.
Appeal and cross appeal from an order of the Supreme Court,
Niagara County (Richard C. Kloch, Sr., A.J.), entered March 23, 2011
in a personal injury action. The order granted in part and denied in
part the motion of defendant for summary judgment and denied the cross
motion of plaintiff for partial summary judgment.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in its entirety
and dismissing the complaint and as modified the order is affirmed
without costs.
Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when a vehicle driven by defendant
ran a red light and struck the front driver’s side of a vehicle driven
by plaintiff. According to plaintiff, she sustained a serious injury
under four categories set forth in Insurance Law § 5102 (d), i.e.,
permanent loss of use, permanent consequential limitation of use,
significant limitation of use and the 90/180-day category. Defendant
moved for summary judgment dismissing the complaint on the ground that
plaintiff did not sustain a serious injury under any of those
categories, and plaintiff cross-moved for partial summary judgment on
liability and on the ground that she sustained a serious injury to her
cervical spine. Supreme Court granted that part of defendant’s motion
for summary judgment with respect to the permanent loss of use and
90/180-day categories, but determined that there were triable issues
of fact with respect to the permanent consequential limitation of use
and significant limitation of use categories. The court denied
plaintiff’s cross motion in its entirety. Defendant appeals, and
plaintiff cross-appeals.
-2- 214
CA 11-02105
We agree with the court that defendant met his initial burden of
demonstrating that plaintiff did not sustain a serious physical injury
under the four categories set forth in Insurance Law § 5102 (d) and
that plaintiff failed to raise an issue of fact with respect to the
permanent loss of use and 90/180-day categories. We further conclude,
however, that plaintiff also failed to submit the requisite objective
proof of injury to raise an issue of fact with respect to the two
remaining categories, and we therefore modify the order by granting
defendant’s motion in its entirety. The records of plaintiff’s own
treating physician and physical therapist establish that any
complaints that plaintiff had immediately following the accident had
fully resolved within approximately 1½ months. Although an MRI later
showed a slight disc herniation in plaintiff’s neck, that MRI was not
performed until six months after the accident.
Similarly, while plaintiff had renewed complaints of pain with
accompanying loss of range of motion in her cervical spine
approximately four months after the accident, she offered no
explanation for the cessation of her symptoms and absence of treatment
therefor with respect to the gap of approximately 2½ months following
the initial full resolution of her complaints (see generally Pommells
v Perez, 4 NY3d 566, 572; McCarthy v Bellamy, 39 AD3d 1166,
1166-1167). Moreover, although evidence of a disc herniation combined
with objective proof of limitation of range of motion may be
sufficient to raise an issue of fact with respect to serious injury
(see e.g. Ellithorpe v Marion [appeal No. 2], 34 AD3d 1195, 1196-1197;
Ejzerman v Cruz, 309 AD2d 893), the records upon which plaintiff
relies fail to “recite the tests used to ascertain the degree of
plaintiff’s loss of range of motion” (Weaver v Town of Penfield, 68
AD3d 1782, 1785).
Entered: March 23, 2012 Frances E. Cafarell
Clerk of the Court