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

294
CA 11-02068
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


MICHEL D. TYSON, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

LAWRENCE NAZARIAN, DEFENDANT-RESPONDENT.


PARISI & BELLAVIA, ROCHESTER (TIMOTHY C. BELLAVIA OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BURGIO, KITA & CURVIN, BUFFALO (HILARY C. BANKER OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (Thomas A. Stander, J.), entered August 15, 2011
in a personal injury action. The order and judgment granted the
motion of defendant for summary judgment, dismissed the complaint and
denied the motion and cross motion of plaintiff for summary judgment.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when a vehicle operated by defendant
collided with her vehicle in March 2008. According to plaintiff, her
prior back and neck injuries were exacerbated by the accident.
Supreme Court properly granted defendant’s 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) and
denied plaintiff’s “motion and cross motion” for summary judgment on
the issues of negligence and serious injury. Defendant met his
initial burden on the motion “by submitting medical records and
reports constituting ‘persuasive evidence that plaintiff’s alleged
pain and injuries were related to . . . preexisting condition[s]’ ”
rather than the 2008 accident (Spanos v Fanto, 63 AD3d 1665, 1666).
Plaintiff’s medical records demonstrated that she sustained injuries
from a March 2002 motor vehicle accident. Plaintiff complained to her
medical providers of severe neck and lower back pain after the 2002
accident and, in May 2006, she underwent a spinal fusion. In November
2006 she obtained Social Security disability benefits for a “ ‘severe’
impairment” consisting of “lumbar back problems and status post
surgery, with chronic pain.” Plaintiff continued to complain of neck
pain and lower back pain until the date of the 2008 accident.

     Defendant also submitted the report of a physician who reviewed
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plaintiff’s medical records and examined her on defendant’s behalf.
The physician opined that “[t]he symptoms that [plaintiff] had before
[and after] March . . . 2008 . . . are essentially one in the same,”
and that there were no new abnormalities or disc problems attributable
to the 2008 accident. Defendant submitted the affirmation of another
physician who reviewed plaintiff’s medical records at defendant’s
request, and he also concluded that plaintiff’s “imaging studies that
were performed prior to and subsequent to the [2008] accident . . .
are essentially the same[, and her] cervical spine and lumbar spine
complaints prior to and subsequent to the [2008] motor vehicle
accident . . . are virtually the same.” In addition, defendant
submitted the affirmation of a third physician who reviewed
plaintiff’s diagnostic films, and he too found no evidence of a
traumatic injury to the spine attributable to the 2008 accident.

     The burden therefore shifted to plaintiff “to come forward with
evidence addressing defendant’s claimed lack of causation” (Carrasco v
Mendez, 4 NY3d 566, 580). Plaintiff submitted the affidavit of her
treating physician, who noted “a significant disc herniation broad
based with foraminal encroachment at L4-L5” on an MRI performed after
the 2008 accident and recommended surgery. In April 2009 he performed
“an acute discectomy at L4-5 with posterior lumbar interbody fusion to
repair the L4-5,” but plaintiff continued to have back pain after the
surgery. Plaintiff’s treating physician opined that the 2008 accident
caused the “large lumbar disc herniation at L4-5” and accounted for a
persistent worsening of her pain symptoms. Although that affirmation
was sufficient to raise a triable issue of fact concerning the
existence of a new injury, plaintiff failed to raise a triable issue
of fact whether she had any new physical symptoms, i.e., worsening of
her pain or limitations, that were attributable to the 2008 accident.
Once defendant met his initial burden, plaintiff’s treating physician
was required “to adequately address plaintiff’s preexisting . . .
condition” (Franchini v Palmieri, 1 NY3d 536, 537). In light of the
evidence submitted by defendant establishing that plaintiff had no new
symptoms or pain complaints after the 2008 accident, plaintiff was
required to offer some explanation with respect to how her current
limitations were caused by that accident rather than the preexisting
condition. In the event that plaintiff’s treating physician was
unable to do so by giving a quantitative comparison of plaintiff’s
limitations before and after the 2008 accident, he was required to
give a qualitative comparison (see Toure v Avis Rent A Car Sys., 98
NY2d 345, 350-351). Here, however, he failed to provide either
comparison. His statement that plaintiff had a “persistent worsening”
of symptoms was conclusory, and he “failed to refute the opinion of
defendant’s expert[s] that plaintiff did not sustain a functional
disability or limitation related to the [2008] accident by, for
example, comparing plaintiff’s pre- and post-accident range of motion
restrictions in her neck or back or assessing her pre- and post-
accident qualitative limitations” (Overhoff v Perfetto, 92 AD3d 1255,
1256).

     In light of our determination, we do not address plaintiff’s
contention that she is entitled to summary judgment on the issue of
defendant’s negligence.
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     All concur except SCONIERS and MARTOCHE, JJ., who dissent and vote
to modify in accordance with the following Memorandum: We
respectfully dissent because we conclude that there are issues of fact
with respect to whether plaintiff sustained a serious injury under the
categories for “permanent consequential limitation of use of a body
organ or member” and “significant limitation of use of a body function
or system” within the meaning of Insurance Law § 5102 (d) as a result
of the subject March 2008 accident (hereafter, 2008 accident). While
plaintiff clearly suffered a serious injury to her back in 2002 that
resulted in surgery in 2006, as well as significant ongoing pain and
limitations, the evidence submitted by plaintiff in opposition to
defendant’s motion for summary judgment dismissing the complaint was
sufficient to raise issues of fact with respect to whether plaintiff
also sustained a serious injury in the 2008 accident.

     In his affidavit, plaintiff’s treating surgeon determined that an
MRI taken after the 2008 accident “revealed a significant disc
herniation broad based with foraminal encroachment at L4-[]5,” which
did not appear on several pre-accident lumbar spine MRIs. He opined
“to a reasonable degree of medical certainty that the [2008] accident
[caused that] large lumbar disc herniation at L4-5[ and] account[ed]
for a persistent worsening of [plaintiff’s] pain symptoms.” The
treating surgeon further concluded that plaintiff’s “pain symptoms,
physical limitations and limitations with respect to activities of
daily life caused by her lumbar large disc herniation at L4-5 should
be considered both permanent and the direct result of the [2008]
accident . . . .” He stated that the “traumatic injury to
[plaintiff’s] lumbar spine at L4-[]5 . . . necessitated surgery,
[i.e.,] an acute discectomy at L4-5 with posterior lumbar interbody
fusion.”

     Another of plaintiff’s treating physicians compared her 2006 and
2008 MRIs, noting that the 2008 MRI “revealed a new disc herniation at
L4-5.” That physician opined that the 2008 accident resulted in both
the L4-5 herniation and “an exacerbation of [plaintiff’s]
pre[]existing condition at L5-S1,” which caused “increased symptoms
and new symptoms . . . from which [plaintiff now] suffers.” The
physician further stated that those symptoms affected “any activities
of daily life which require standing, sitting or walking for more than
a brief period of time.” In addition, in her reply papers, plaintiff
submitted the report of a physician who examined plaintiff on behalf
of her insurance company and found that plaintiff’s “conditions are
causally related to the [2008] accident” and that, if she was
employed, her restrictions would include no prolonged positioning of
the neck, overhead reaching, repetitive reaching, bending, twisting,
stooping or lifting of greater than 15 to 20 pounds. Moreover, one of
the physicians who examined plaintiff on behalf of defendant’s
insurance company opined, after his first examination of plaintiff,
“that 75% of [plaintiff’s] current disability with respect to the neck
and back is due to the injury [resulting from the 2008 accident] and
25% [is] due to the prior injury and the documented disc abnormalities
that were noted after the injury of 2002.” While that physician later
asserted that such opinion was expressed before he was fully and
accurately informed of the extent of plaintiff’s physical condition
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                                                         CA 11-02068

prior to the 2008 accident, the physician’s repudiation of his prior
opinion presents an issue for the finder of fact.

     Based on that evidence and other evidence in the record, we
conclude that plaintiff presented objective proof in evidentiary form
that she sustained a new injury in the 2008 accident and, in addition
to the pain and limitations caused by that new injury, plaintiff lost
all movement of her spine at L4-5 as a result of surgery in 2009 and
suffered residual pain and limitations resulting from that surgery.
While “an expert’s designation of a numeric percentage of a
plaintiff’s loss of range of motion can be used to substantiate a
claim of serious injury . . . [, an] expert’s qualitative assessment
of a plaintiff’s condition also may suffice, provided that the
evaluation has an objective basis and compares the plaintiff’s
limitations to the normal function, purpose and use of the affected
body organ, member, function or system” (Toure v Avis Rent A Car Sys.,
98 NY2d 345, 350). We conclude that the evidence submitted by
plaintiff in opposition to defendant’s motion was sufficient to raise
issues of fact based on that standard. Moreover, we fear that the
majority’s conclusion to the contrary sets an almost impossible
standard for persons with preexisting injuries and conditions to have
their cases heard by a jury when those persons are injured in
subsequent motor vehicle accidents.

     In Perl v Meher (18 NY3d 208, 214), the Court of Appeals, quoting
its decision in Pommells v Perez (4 NY3d 566, 571), noted that “[n]o-
fault abuse still abounds today” and “that many courts, including
ours, approach claims that soft-tissue injuries are ‘serious’ with a
‘well-deserved skepticism.’ ” Nevertheless, in two of the three cases
decided under Perl, the Court concluded that “the evidence [the]
plaintiffs . . . put forward [was] legally sufficient” and that “the
role of skeptic is properly reserved for the finder of fact” (18 NY3d
at 215). Specifically, the Court held that the “plaintiffs’ evidence
of serious injury in [those two cases was] legally sufficient, [even
though] both cases have troubling features” (id. at 219), which in one
case included the sworn assertion by a defense physician accusing the
plaintiff of malingering. Nevertheless, “[t]he issue presented by
[such] evidence, of course, is one of credibility, which is not for
this Court to decide” (id.). Moreover, the Court in Perl determined
that “a rule requiring ‘contemporaneous’ numerical measurements of
range of motion could have perverse results[ because p]otential
plaintiffs should not be penalized for failing to seek out,
immediately after being injured, a doctor who knows how to create the
right kind of record for litigation” (id. at 218). The Court
“therefore reject[ed] a rule that would make contemporaneous
quantitative measurements a prerequisite to recovery” (id.). The
extraordinary burden the majority appears to be placing on automobile
accident plaintiffs who have preexisting injuries or conditions “could
have [even more] perverse results” by penalizing plaintiffs for not
being prepared at all times with “ ‘contemporaneous’ numerical
measurements of [their] range of motion” (id.), inasmuch as no one can
ever know if or when an automobile accident is going to occur. While
the majority is understandably skeptical of the plaintiff’s serious
injury claims, as well as her credibility, this is one case where “the
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role of skeptic is properly reserved for the finder of fact” (id. at
215).

     Given the result reached by our colleagues in the majority, they
understandably did not address the merits of plaintiff’s contention
that she is entitled to partial summary judgment on the issue of
defendant’s negligence. However, given that defendant turned left in
front of plaintiff, who had the right-of-way, there can be no doubt
that the evidence establishes as a matter of law that defendant was
negligent and that his negligence was the sole proximate cause of the
2008 accident (see Rogers v Edelman, 79 AD3d 1803, 1804; Guadagno v
Norward, 43 AD3d 1432, 1433). We would therefore modify the order and
judgment by denying those parts of defendant’s motion for summary
judgment dismissing plaintiff’s claims under the permanent
consequential limitation of use and significant limitation of use
categories of serious injury and granting that part of plaintiff’s
“motion and cross motion” for partial summary judgment on the issue of
defendant’s negligence.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
