        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

352
CA 12-01607
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


MELISSA KWITEK AND ROBERT KWITEK, JR.,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

FRANCES SEIER AND JUNE YOUNG,
DEFENDANTS-APPELLANTS.


HAGELIN KENT LLC, BUFFALO (VICTOR M. WRIGHT OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

ANDREWS, BERNSTEIN & MARANTO, LLP, BUFFALO (KENNETH SZYSZKOWSKI OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered May 11, 2012 in a personal injury action. The
order, insofar as appealed from, denied in part defendants’ motion for
summary judgment.

     It is hereby ORDERED that the order insofar as appealed from is
reversed on the law without costs, the motion is granted in its
entirety and the complaint is dismissed.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by Melissa Kwitek (plaintiff) in a motor
vehicle accident on April 28, 2007, when the vehicle in which she was
a passenger was rear-ended by a vehicle owned by one defendant and
operated by the other. Plaintiffs allege that, as a result of the
motor vehicle accident, plaintiff sustained, inter alia, injuries to
her cervical and lumbar spine under the permanent loss of use,
permanent consequential limitation of use, significant limitation of
use, and 90/180-day categories of serious injury as defined in
Insurance Law § 5102 (d). Defendants moved for summary judgment
seeking dismissal of the complaint on the ground that plaintiff did
not sustain a serious injury within the meaning of those categories,
and Supreme Court granted the motion only with respect to the
permanent loss of use category. We agree with defendants that the
court should have granted the motion in its entirety.

     “[E]ven where there is objective medical proof [of a serious
injury], when additional contributory factors interrupt the chain of
causation between the accident and claimed injury—such as a gap in
treatment, an intervening medical problem or a preexisting
condition—summary dismissal of the complaint may be appropriate”
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                                                        CA 12-01607

(Pommells v Perez, 4 NY3d 566, 572). Here, defendants met their
initial burden on the motion with respect to the permanent
consequential limitation of use, significant limitation of use, and
90/180-day categories by offering “persuasive evidence that
plaintiff’s alleged pain and injuries were related to a preexisting
condition” (Carrasco v Mendez, 4 NY3d 566, 580). Defendants submitted
plaintiff’s deposition testimony which established that plaintiff has
a history of incidents involving her neck and lower back pre-dating
the subject accident, including a 1995 incident in which she injured
her lower back by lifting her then-seven-year-old brother; a 2000
motor vehicle accident; and a 2005 motor vehicle accident. Plaintiff
treated with a chiropractor for those complaints from 1995 until the
date of the accident. Defendants also submitted the affirmed report
of a neurosurgeon who examined plaintiff, reviewed her medical
records, and concluded that the only objective medical findings with
respect to any alleged injury related to a preexisting degenerative
condition of the lumbosacral spine (see Hartman-Jweid v Overbaugh, 70
AD3d 1399, 1400; see also Lauffer v Macey, 74 AD3d 1826, 1827; Clark v
Perry, 21 AD3d 1373, 1374). The neurosurgeon reviewed plaintiff’s
postaccident MRIs and concluded that the MRI of her cervical spine was
“normal” and that, although the MRI of her lumbar spine showed a
“small disc herniation at L5-S1,” the herniation was not related to
the subject accident. Rather, he concluded that plaintiff’s lumbar
spine showed “signs of chronic long standing changes consistent with
her [pre]existing complaints of back pain.” Based upon his physical
examination of plaintiff and review of plaintiff’s medical records,
the neurosurgeon concluded that plaintiff suffered only a “very mild
flare up of myofascial pain, musculoskeletal strain from a well
documented [pre]existing condition.”

     Plaintiffs’ submissions in opposition to the motion with respect
to those three categories did “not ‘adequately address how plaintiff’s
current medical problems, in light of [plaintiff’s] past medical
history, are causally related to the subject accident’ ” (Anania v
Verdgeline, 45 AD3d 1473, 1474; see Overhoff v Perfetto, 92 AD3d 1255,
1256, lv denied 19 NY3d 804). Plaintiffs submitted the affidavit of
plaintiff’s treating chiropractor, who acknowledged that “there is
some degeneration present on [plaintiff]’s lumbar spine MRI film,” but
concluded that “the disc herniation . . . is an acute finding and is
causally related to her motor vehicle accident of April 28, 2007.”
The chiropractor, however, did not begin treating plaintiff until
approximately seven months after the accident and did not review
plaintiff’s pre-accident medical records. Rather, the chiropractor’s
opinion appears to be based, at least in part, on plaintiff’s self-
reported history that her neck and lower back complaints leading up to
the subject accident were “very mild in nature,” and that she had
“fully recovered” prior to the accident. That characterization of
plaintiff’s preexisting condition, however, is belied by the record,
which establishes that plaintiff complained of neck and lower back
pain less than two weeks prior to the subject accident. Inasmuch as
the chiropractor did not review plaintiff’s pre-accident medical
records relative to her neck and lower back complaints, we conclude
that his opinion that the subject motor vehicle accident was the
competent producing cause of plaintiff’s condition is purely
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                                                           CA 12-01607

speculative and thus insufficient to raise an issue of   fact as to
causation (see McCarthy v Bellamy, 39 AD3d 1166, 1167;   see also
Carrasco, 4 NY3d at 579-580; Hartman-Jweid, 70 AD3d at   1400; Spanos v
Fanto, 63 AD3d 1665; see generally Zuckerman v City of   New York, 49
NY2d 557, 562).

     All concur except WHALEN, J., who dissents and votes to affirm in
the following Memorandum: I respectfully disagree with the majority’s
conclusion that Supreme Court should have granted defendants’ motion
for summary judgment in its entirety, and I therefore dissent. “The
proponent of a summary judgment motion must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient
evidence to eliminate any material issues of fact from the case”
(Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; see Zuckerman
v City of New York, 49 NY2d 557, 562). “Once [that] showing has been
made . . . , the burden shifts to the party opposing the motion for
summary judgment to produce evidentiary proof in admissible form
sufficient to establish the existence of material issues of fact which
require a trial of the action” (Alvarez v Prospect Hosp., 68 NY2d 320,
324). Contrary to the view of the majority, I conclude that
defendants did not meet their burden of establishing on their motion
that Melissa Kwitek (plaintiff) was able to perform “substantially
all” of her usual activities during no less than 90 days of the 180
days immediately following the accident, inasmuch as they failed to
establish what plaintiff’s “usual and customary daily activities” were
before and after the accident, and thus failed to shift the burden to
plaintiffs with respect to that category of serious injury (Paolini v
Sienkiewicz, 262 AD2d 1020, 1020; see Insurance Law § 5102 [d]).
Defendants established that plaintiff had been able to return to work
during the relevant time frame but that, by itself, does not
constitute all of her usual and customary daily activities.
Consequently, defendants were not entitled to summary judgment with
respect to the 90/180-day category.

     I further disagree with the majority’s conclusion that
plaintiffs’ submissions in opposition to the motion with respect to
the categories of permanent consequential limitation of use and
significant limitation of use did not adequately address how
plaintiff’s current medical problems, in light of her past medical
history, are causally related to the subject accident. In my view,
the majority’s reliance on Anania v Verdgeline (45 AD3d 1473, 1474)
and Overhoff v Perfetto (92 AD3d 1255, 1256, lv denied 19 NY3d 804) is
misplaced. In both of those cases, pre-accident imaging studies
revealed preexisting injuries, and those imaging studies were
available to medical providers as a basis for comparison to
postaccident imaging studies. In the case before us, there are no
pre-accident imaging studies, nor is there a specific pre-accident
diagnosis of a preexisting injury apart from plaintiff’s general
complaints of neck and lower back pain prior to the subject accident.
Plaintiffs’ expert averred that he was informed of plaintiff’s pre-
accident injuries and that he had reviewed and specifically disagreed
with the opinion of defendants’ expert that plaintiff’s disc pathology
is degenerative. In my view, the conflicting expert opinions on that
issue are sufficient to raise a question of fact with respect to the
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                                                         CA 12-01607

categories of permanent consequential limitation of use and
significant limitation of use (see Verkey v Hebard, 99 AD3d 1205,
1206). I would therefore affirm the order.




Entered:   April 26, 2013                      Frances E. Cafarell
                                               Clerk of the Court
