                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 16, 2014                   517668
________________________________

MARY SHELLEY,
                      Appellant,
     v                                      MEMORANDUM AND ORDER

SEAN P. McCUTCHEON,
                    Respondent.
________________________________


Calendar Date:   September 11, 2014

Before:   Peters, P.J., Lahtinen, Stein, Garry and Devine, JJ.

                             __________


      Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel),
for appellant.

      Boeggeman, George & Corde, PC, Albany (Paul A. Hurley of
counsel), for respondent.

                             __________


Stein, J.

      Appeals from an order and an amended order of the Supreme
Court (Zwack, J.), entered February 22, 2013 and March 5, 2013 in
Ulster County, which granted defendant's motion for summary
judgment dismissing the complaint.

      In April 2010, plaintiff was involved in a motor vehicle
accident when her car was rear-ended by defendant's vehicle while
stopped at a traffic light. Plaintiff was taken by ambulance to
the hospital – with complaints of head, back and shoulder pain –
where doctors performed an X ray, diagnosed her with neck strain
and a muscle contraction headache and discharged her with a
prescription for pain medication. Plaintiff later underwent an
MRI after she continued to experience head, neck and back pain
and subsequently made complaints of pain to her left knee.
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Plaintiff was diagnosed as being temporarily totally disabled,
was unable to return to work and was prescribed physical therapy.

      In August 2010, plaintiff commenced this personal injury
action. Following the completion of discovery, defendant moved
for summary judgment dismissing the complaint, arguing that
plaintiff had not sustained a serious injury as defined in
Insurance Law § 5102 (d) as a result of the accident. In an
order and amended order, Supreme Court granted the motion and
dismissed the complaint. Plaintiff now appeals from both the
order and the amended order.

      As the movant, defendant bore the initial burden of
establishing, through competent medical evidence, that plaintiff
did not suffer a serious injury as a result of the accident (see
Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Raucci v
Hester, 119 AD3d 1044, 1044 [2014]; Putnam v Sysco Corp., 101
AD3d 1571, 1572 [2012]; DeHaas v Kathan, 100 AD3d 1057, 1058
[2012]; Cole v Roberts-Bonville, 99 AD3d 1145, 1146 [2012]). In
support of his motion, defendant proffered, among other things,
plaintiff's medical records and deposition testimony, as well as
an orthopedic evaluation from physician John Ioia. In his
report, Ioia noted that plaintiff had sustained a work-related
injury to her right shoulder and back in 2000, had shoulder
surgery in 2003, and had other conditions that caused her to
retire from her previous employment. After a physical
examination of plaintiff, Ioia indicated that plaintiff had
certain diminished ranges of motion to her shoulder area, but
nonetheless opined that these complaints were "strictly somatic,
and degenerative in nature," and related her back complaints to
her weight and advancing age. As to her left knee injury, Ioia
noted that plaintiff did not complain about knee pain until some
time after the accident and opined that this condition was
related to "chronic, ongoing degenerative change, secondary to
age and body weight, rather than a discrete injury from the motor
vehicle accident." Indeed, there is no mention in plaintiff's
medical reports regarding her left knee until approximately six
months following the accident. Thus, defendant met his initial
burden of establishing that the left knee, shoulder and back
injuries were preexisting and/or not causally related to the
accident, shifting the burden to plaintiff to submit objective
                              -3-                517668

medical evidence sufficient to raise a triable issue of fact (see
Pommells v Perez, 4 NY3d 566, 579 [2005]; Russell v Cornell
Univ., 110 AD3d 1236, 1237 [2013]).

      In opposition to defendant's motion, plaintiff proffered,
among other things, the treatment records of Luis Mendoza, one of
her treating physicians, in which Mendoza concluded that
plaintiff was temporarily totally disabled and causally related
her shoulder, back and left knee injuries to the accident.
However, these records make no reference to plaintiff's
preexisting injuries to her shoulder and, although Mendoza
submitted an affirmation in which he concluded that plaintiff's
accident significantly aggravated her previous lower back and
shoulder injuries, he failed to offer objective medical evidence
distinguishing or differentiating plaintiff's preexisting
conditions from those alleged to have been caused by the accident
(see Thomas v Ku, 112 AD3d 1200, 1201 [2013]; Russell v Cornell
Univ., 110 AD3d at 1238; MacMillan v Cleveland, 82 AD3d 1388,
1389 [2011]).

      Plaintiff also submitted the records of another treating
physician, Paul Jones, who likewise opined that plaintiff was
disabled and causally related her injuries to the accident.
Again, however, Jones' report makes no mention of plaintiff's
preexisting injuries and fails to otherwise indicate that he was
actually aware of those injuries. Further, neither Jones nor
Mendoza provided any explanation as to the significant delay
between the date of the accident and the time that plaintiff
first made a complaint regarding her left knee. As a result,
plaintiff failed to refute defendant's showing that the shoulder,
back and left knee injuries were preexisting and/or not causally
related to the accident, and Supreme Court properly granted
defendant's summary judgment motion with regard to these injuries
(see Thomas v Ku, 112 AD3d at 1201; Russell v Cornell Univ., 110
AD3d at 1238; compare Raucci v Hester, 119 AD3d at 1046).

      We reach a different conclusion, however, with respect to
plaintiff's claim that, as a result of the accident, she
sustained a neck injury and persistent headaches that prevented
her "from performing substantially all of the material acts which
constitute [her] usual and customary daily activities for not
                              -4-                517668

less than [90] days during the [180] days immediately following
the occurrence of the injury or impairment" (Insurance Law § 5102
[d]). As to plaintiff's neck injury, Ioia acknowledged that
plaintiff had diminished range of motion to the cervical area and
she "demonstrate[d] cervicalgia or generalized neck pain as one
sees after a whiplash," and he also found chronic degenerative
change on the MRI. Although Ioia concluded that plaintiff has
"no ongoing cervical radiculopathy," he failed to confirm that
plaintiff did not suffer an injury to her neck as a result of the
accident that would be deemed a serious injury under the
Insurance Law.1

      In particular, Ioia – who examined plaintiff approximately
16 months after the accident – did not "adequately address
plaintiff's condition or limitations within the first 180 days
following the accident, which was necessary to foreclose the
90/180-day category of serious injury" (Colavito v Steyer, 65
AD3d 735, 736 [2009]). In fact, as Ioia noted, an EMG conducted
within two months of the accident revealed evidence of a right
C6-C7 cervical radiculopathy, and plaintiff's medical records
during the 180 days following the accident established that
plaintiff had restricted range of motion, spasms and trigger
points in her cervical spine, was diagnosed with cervical disc
injuries, cervical radiculopathy and neuropathy and was
prescribed physical therapy. As a result, plaintiff was directed
to avoid activities that would exacerbate her condition and was
unable to return to the job that she had at the time of the
accident. Thus, defendant failed to sustain his initial burden
as to the cervical injury under the 90/180-day category (see id.;
Hildenbrand v Chin, 52 AD3d 1164, 1166 [2008]), without regard to
the sufficiency of plaintiff's opposing papers (see Pezzino v
Woodruff, 103 AD3d 944, 944 [2013]), and was not entitled to




    1
        Ioia expressly declined to make any statement regarding
plaintiff's complaints of headaches which, according to
plaintiff's medical records, deposition testimony and affidavit,
were excruciating and continued for months after the accident.
                                 -5-                  517668

summary judgment dismissing that part of the complaint.2

         Peters, P.J., Lahtinen, Garry and Devine, JJ., concur.



      ORDERED that the order and amended order are modified, on
the law, without costs, by reversing so much thereof as granted
defendant's motion for summary judgment dismissing that part of
the complaint alleging that plaintiff suffered a serious injury
to her neck in the 90/180-day category; motion denied to that
extent; and, as so modified, affirmed.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court




     2
        Notwithstanding her failure to make an appropriate
application before Supreme Court, plaintiff now requests that we
grant summary judgment in her favor on the 90/180-day category of
serious injury. However, after reviewing the record, we decline
plaintiff's request, as we find that she did not demonstrate her
entitlement to such relief as a matter of law.
