          SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
1231
CA 12-00816
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


JOSEPH J. CARFI, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

DAVID C. FORGET AND DAWN M. FORGET,
DEFENDANTS-RESPONDENTS.


LYNCH SCHWAB, PLLC, SYRACUSE (ANDREW J. SCHWAB OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LAW OFFICES OF KAREN L. LAWRENCE, DEWITT (BARNEY F. BILELLO OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County (James
P. Murphy, J.), entered August 1, 2011 in a personal injury action. The
order granted the motion of defendants for summary judgment and
dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when the vehicle in which he was a passenger was
struck by a vehicle owned by defendant Dawn M. Forget and operated by
defendant David C. Forget. We conclude that Supreme Court properly
granted defendants’ motion for summary judgment dismissing the complaint
on the ground that plaintiff did not sustain a serious injury within the
meaning of Insurance Law § 5102 (d). We note at the outset that,
although plaintiff alleged that he sustained several categories of
serious injury in his bill of particulars, his appellate brief alleges
only that he sustained a permanent consequential limitation of use of
his cervical spine. Plaintiff therefore has abandoned his contentions
with respect to the remaining categories of serious injury (see Beaton v
Jones, 50 AD3d 1500, 1501).

     Defendants met their initial burden on the motion of establishing
that plaintiff did not sustain a serious injury under the permanent
consequential limitation of use category, and plaintiff failed to raise
a triable issue of fact to defeat the motion (see Lux v Jakson, 52 AD3d
1253, 1254; McConnell v Freeman, 52 AD3d 1190, 1191, lv denied 55 AD3d
1420). In support of their motion, defendants submitted the affirmed
report of the orthopedic surgeon who examined plaintiff on defendants’
behalf. After examining plaintiff and reviewing his medical records,
the orthopedic surgeon concluded within a reasonable degree of medical
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                                                         CA 12-00816

certainty that there was no objective evidence that plaintiff sustained
a “causally related injury of any significance.” He concluded instead
that plaintiff likely sustained a cervical strain as a result of the
accident. Although plaintiff was diagnosed with a herniated disc three
years after the accident, the orthopedic surgeon concluded that such
injury was unrelated to the accident and was consistent with
degenerative disc disease. Moreover, the orthopedic surgeon concluded
that plaintiff was not impaired or disabled by that condition. He noted
that plaintiff exhibited no palpable spasm, motor deficits, or objective
sensory deficits and that plaintiff’s cervical spine flexion, extension,
lateral deviation, and right-sided rotation were all within normal
limits. Only plaintiff’s left-sided rotation was “mildly decreased,”
i.e., 55 degrees compared with normal rotation of 60 to 90 degrees.
Defendants also submitted excerpts from plaintiff’s deposition, in which
plaintiff testified that he missed only one day of work after the
accident and that he did not see his primary care physician or any other
doctors for pain or stiffness in his neck for approximately two and a
half years after the accident.

     In opposition to defendants’ motion, plaintiff submitted, inter
alia, the affirmation of his treating neurosurgeon, who reviewed
plaintiff’s pre- and post-accident imaging studies and concluded that
plaintiff sustained two herniated discs as a result of the accident.
Plaintiff also submitted MRI and X ray reports reflecting the existence
of two herniated discs in his cervical spine. Even assuming, arguendo,
that plaintiff raised a triable issue of fact as to the causation of the
herniated discs, we conclude that the court properly granted defendants’
motion because plaintiff failed to submit objective medical evidence
establishing plaintiff’s limitations or restrictions of use resulting
from those injuries (see Accurso v Kloc, 77 AD3d 1295, 1297). It is
well settled that “[p]roof of a herniated disc, without additional
objective medical evidence establishing that the accident resulted in
significant physical limitations, is not alone sufficient to establish a
serious injury” (Pommells v Perez, 4 NY3d 566, 574; see Toure v Avis
Rent A Car Sys., 98 NY2d 345, 353 n 4; Caldwell v Grant [appeal No. 2],
31 AD3d 1154, 1155-1156). “Whether a limitation of use or function is .
. . ‘consequential’ (i.e., important . . . ) relates to medical
significance and involves a comparative determination of the degree or
qualitative nature of an injury based on the normal function, purpose
and use of the body part” (Dufel v Green, 84 NY2d 795, 798; see Accurso,
77 AD3d at 1296).

     Here, plaintiff also submitted the letter affirmation from a
nontreating orthopedic surgeon in opposition to defendants’ motion,
which states that upon physical examination plaintiff exhibited normal
flexion, “mild” restrictions in left rotation, “moderate” restrictions
in extension, left lateral bending and right-rotation, and “marked”
restrictions in right lateral bending. That orthopedic surgeon did not,
however, quantify plaintiff’s range of motion restrictions or provide a
qualitative assessment “compar[ing] the plaintiff’s limitations to the
normal function, purpose and use of [the cervical spine]” (Toure, 98
NY2d at 350; see Dann v Yeh, 55 AD3d 1439, 1440; Caldwell, 31 AD3d at
1156). Although the affirmation of plaintiff’s treating neurosurgeon
referenced range of motion losses “documented by [him]self and various
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                                                         CA 12-00816

physicians,” he likewise failed to provide a quantitative or qualitative
assessment thereof (see Toure, 98 NY2d at 350; Caldwell, 31 AD3d at
1156). Moreover, although both surgeons opined that plaintiff sustained
a “permanent consequential loss” of function or use of his cervical
spine as a result of the accident, those conclusory assertions are
insufficient to raise a triable issue of fact (see Anderson v Capital
Dist. Transp. Auth., 74 AD3d 1616, 1617, lv denied 15 NY3d 709; Barry v
Future Cab Corp., 71 AD3d 710, 711; Burridge v Gaines, 294 AD2d 892,
893).

     Finally, we conclude that plaintiff’s submission of an affidavit in
which he described his physical limitations—i.e., that he cannot turn
his head “normally,” operate a lawnmower, or “shovel[ ] [his] driveway”;
that he has to be “careful” with his activities to prevent the onset of
pain; and that prolonged standing triggers headaches and increased neck
pain—is insufficient to establish a permanent consequential limitation
of use inasmuch as plaintiff’s experts “did not address or quantify any
limitations in the activities of plaintiff resulting from [his]
injuries” (Accurso, 77 AD3d at 1297).




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
