Murray v. Helderberg Ambulance Squad, Inc. , 19 N.Y.S.3d 143 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 12, 2015 520422
________________________________
BRYANDE A. MURRAY,
Appellant,
v MEMORANDUM AND ORDER
HELDERBERG AMBULANCE SQUAD,
INC.,
Respondent.
________________________________
Calendar Date: September 16, 2015
Before: Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.
__________
Feeney, Centi & Mackey, Albany (Dennis A. Feeney of
counsel), for appellant.
Hannigan Law Firm, PLLC, Albany (Timothy C. Hannigan of
counsel), for respondent.
__________
Lahtinen, J.P.
Appeal from an order of the Supreme Court (Walsh, J.),
entered October 14, 2014 in Albany County, which, among other
things, granted defendant's motion for summary judgment
dismissing the complaint.
Plaintiff commenced this action alleging that she sustained
a serious injury within the meaning of Insurance Law § 5102 (d)
when an ambulance owned by defendant, which was operating under a
nonemergency situation, ran into the rear of her vehicle at a low
speed as she attempted to enter a traffic circle in November
2009. She contends that she suffered, among other things, pain
in her left shoulder and neck, which was eventually diagnosed as
thoracic outlet syndrome. Following discovery, defendant moved
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for summary judgment dismissing the complaint and plaintiff
cross-moved for summary judgment on the issue of liability.
Supreme Court granted defendant's motion and denied plaintiff's
cross motion. The court noted, among other things, that
plaintiff did not seek treatment for her purported injuries for
more than 11 months and her expert failed to discuss or
distinguish her relevant preaccident and postaccident incidents
and injuries. Plaintiff appeals.
Defendant met its initial burden of establishing with
competent medical evidence that plaintiff did not suffer a
serious injury as a result of the accident (see Shelley v
McCutcheon, 121 AD3d 1243, 1244-1245 [2014]; Bowen v Saratoga
Springs City School Dist., 88 AD3d 1144, 1145 [2011]). In
support of the motion, defendant offered, among other things,
plaintiff's deposition testimony, many of her medical records and
the affirmation of Daniel Silverman, a neurologist who examined
plaintiff and reviewed her medical history. Plaintiff had sought
treatment about a year before the accident for soreness in her
left shoulder. Following the accident, she continued her normal
active lifestyle for about a year until November 2010, when she
visited a doctor with complaints of pain in her left shoulder,
and such visit occurred shortly after a separate incident in
October 2010 where she injured her left arm attempting to move a
25-pound box. A second postaccident incident occurred in March
2011, when a snowboarder collided with her causing her to fall on
her left side and sustain shoulder pain and numbness. In a
detailed report, Silverman opined that there was no objective
medical evidence indicating that the November 2009 accident
caused plaintiff to develop thoracic outlet syndrome. He
explained that the timing of the October 2010 incident with the
accompanying onset of complaints of pain by November 2010,
together with the exacerbating incident of March 2011, revealed
that such incidents caused the onset of plaintiff's condition.
He further stated that his opinion regarding a lack of causation
was supported by the fact that there was nearly a one-year delay
from the accident to plaintiff seeking treatment for her
subjective complaints of pain.
In opposition to defendant's motion, plaintiff's proof
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included a brief affirmation from Benjamin Chang, a general and
vascular surgeon who began treating her two years after the
accident and who diagnosed thoracic outlet syndrome for which he
later performed two surgeries. Chang opined that plaintiff's
thoracic outlet syndrome resulted from the November 2009 motor
vehicle accident. However, he did not address plaintiff's
preaccident left shoulder problems or the impact of the two
postaccident incidents in which she injured her left shoulder
and/or neck. The November 2009 accident was not distinguished
from or put in medical context with the other relevant injuries,
and Chang's opinion regarding causation rested upon plaintiff's
subjective complaints. Upon this record, we agree with Supreme
Court that plaintiff failed to establish a triable issue of fact
regarding a serious injury caused by the motor vehicle accident
(see Dudley v Imbesi, 121 AD3d 1461, 1462 [2014]; Thomas v Ku,
112 AD3d 1200, 1201 [2013]; Russell v Cornell Univ., 110 AD3d
1236, 1237-1238 [2013]). The remaining arguments are academic or
without merit.
Egan Jr., Devine and Clark, JJ., concur.
ORDERED that the order is affirmed, with costs.
ENTER:
Robert D. Mayberger
Clerk of the Court