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

105
CA 13-00928
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


JAMES R. FRENCH, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DAUN M. SYMBORSKI AND FRANK L. SYMBORSKI,
DEFENDANTS-RESPONDENTS.


LYNN LAW FIRM, LLP, SYRACUSE (PATRICIA A. LYNN-FORD OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LAW OFFICES OF DESTIN C. SANTACROSE, BUFFALO (ELISE CASSAR OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County (Brian
F. DeJoseph, J.), entered March 4, 2013. The order, insofar as
appealed from, granted the motion of defendants for summary judgment
dismissing the complaint.

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

     Memorandum: In this personal injury action arising from a motor
vehicle accident, plaintiff appeals from an order granting defendants’
motion for summary judgment dismissing the complaint. According to
plaintiff, Supreme Court erred in determining that he did not sustain
a serious injury within the meaning of Insurance Law § 5102 (d). We
reject that contention. In support of the motion, defendants
established that plaintiff’s pain in his neck and shoulders was
related to preexisting degenerative conditions and that there was no
evidence of an acute traumatic injury arising from the subject
accident (see Spanos v Fanto, 63 AD3d 1665, 1666). Defendants also
established that plaintiff sustained “only a mild injury as a result
of the accident,” as opposed to a significant or permanent injury
(Gallo v Rieske, 77 AD3d 1343, 1344; see Beaton v Jones, 50 AD3d 1500,
1501). We note that, following the accident, plaintiff was able to
walk around and, although he was taken to the hospital, he was
released that same day with a prescription for pain medication. An X
ray or CT scan taken at the hospital showed no broken bones or other
abnormalities. We further note that plaintiff did not miss any work
as a result of his injuries, and examinations by his own physicians
showed that he regularly had a full range of motion in his neck and
back, albeit with a degree of pain.

     The burden of proof thus shifted to plaintiff “to come forward
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                                                         CA 13-00928

with evidence addressing defendant[s’] claimed lack of causation”
(Carrasco v Mendez, 4 NY3d 566, 580; see Wilson v Colosimo, 101 AD3d
1765, 1766), and plaintiff failed to meet that burden. Contrary to
plaintiff’s contention, the affidavit of his treating physician was
insufficient to raise a triable issue of fact. Although plaintiff’s
physician stated that plaintiff has a “disability related to his neck
. . . in the range of 30 to 60 percent,” she did not identify the
range of motion tests she conducted upon plaintiff or otherwise
explain how she arrived at that conclusion. Moreover, plaintiff’s
physician, who acknowledged plaintiff’s preexisting conditions,
“failed to specify how plaintiff’s conditions were caused or further
exacerbated” by the subject accident (Hedgecock v Pedro, 93 AD3d 1143,
1144; see Webb v Bock, 77 AD3d 1414, 1415).

     All concur except WHALEN, J., who dissents and votes to modify in
accordance with the following Memorandum: I respectfully dissent
because I disagree with the majority’s conclusion that defendants met
their initial burden with respect to the 90/180-day category of
serious injury (see generally Alvarez v Prospect Hosp., 68 NY2d 320,
324). I would thus modify the order by denying in part defendants’
motion for summary judgment and reinstating the complaint with respect
to the 90/180-day category of serious injury within the meaning of
Insurance Law § 5102 (d).

     Defendants’ submissions failed to establish that plaintiff
suffered only some “ ‘slight curtailment’ ” of his usual activities
during no less than 90 of the 180 days immediately following the
accident, inasmuch as they did not demonstrate what plaintiff’s usual
and customary daily activities were, much less that plaintiff could
not perform substantially all of those activities (Gaddy v Eyler, 79
NY2d 955, 958; see Paolini v Sienkiewicz, 262 AD2d 1020, 1020; Russell
v Knop, 202 AD2d 959, 960). Defendants, instead, chose to rely almost
exclusively on the fact that plaintiff did not miss any work as a
result of his injuries. While plaintiff testified that he continued
to work after the accident and took time off from work only to attend
appointments with his doctors, plaintiff’s duties at work were
different after the accident than they were before it (cf. Gaddy, 79
NY2d at 958; Licari v Elliott, 57 NY2d 230, 238). At the time of the
accident, plaintiff was a technician at a nuclear power plant and he
performed calibrations, testing and repairs on equipment. Subsequent
to the accident, he was assigned a supervisory position as an outage
coordinator, i.e., a desk job. Plaintiff’s daily and customary
activities at work had changed and become much more sedentary. I
further note that plaintiff’s deposition occurred nearly three years
after the accident, long after the relevant 180-day time frame (see
generally Lowell v Peters, 3 AD3d 778, 780). This fact is important
because defendants’ attorney asked plaintiff at the deposition, “Is
there anything that you can’t do today that you could do prior to the
accident, any activities at all?” What plaintiff could do as of the
date of the deposition is irrelevant; the relevant inquiry concerns
what he could or could not do in the 180 days immediately following
the accident. Therefore, any information gleaned about plaintiff’s
daily activities as a result of that question is irrelevant to the
analysis of whether he sustained a serious injury under the 90/180-day
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                                                         CA 13-00928

category. Without establishing a baseline of plaintiff’s activities
during the relevant time frame, defendants did not meet their initial
burden (see Ames v Paquin, 40 AD3d 1379, 1380).

     Additionally, when viewing the evidence in the light most
favorable to plaintiff, the nonmoving party (see Nichols v Xerox
Corp., 72 AD3d 1501, 1502), I note that there was evidence that
plaintiff’s work duties had changed significantly and, thus, a
question of fact exists regarding whether plaintiff was able to
perform his usual daily activities for 90 of the 180 days immediately
following the accident.

     I also note my concern with the majority’s apparent reliance upon
the affirmed report of defendants’ medical expert, who opined that
plaintiff suffers from a “multilevel degenerative” condition “with no
indication of any acute traumatic injury” and “is obviously not
disabled” in determining that defendants met their initial burden,
while at the same time concluding that the affidavit of plaintiff’s
treating physician is insufficient to raise an issue of fact with
respect to causation. Defendants’ expert based his opinion on the
findings contained in what may be an unsworn MRI report, not included
in the record, interpreting an MRI film that he did not review and
that is also not included in the record. Plaintiff’s treating
physician, on the other hand, disagreed with the assessment of
defendants’ expert that there was no evidence of traumatic injury,
based on her review of plaintiff’s MRI films and medical records and
the fact that plaintiff was asymptomatic prior to the accident, as
demonstrated by plaintiff’s “medical history” and the fact that his
“pre-existing degenerative changes” did not “prompt him to seek any
medical attention” (see generally Fanti v McLaren, 110 AD3d 1493,
1494; Verkey v Hebard, 99 AD3d 1205, 1206; Austin v Rent A Ctr. E.,
Inc., 90 AD3d 1542, 1543-1544; Terwilliger v Knickerbocker, 81 AD3d
1350, 1351; Mack v Pullum, 37 AD3d 1063, 1063). Only plaintiff’s
treating physician appears to have reviewed plaintiff’s medical
records prior to the accident, there are no pre-accident MRIs for
comparison, and, contrary to the majority’s conclusion, plaintiff’s
“submissions in opposition to the motion did . . . adequately address
how [the neck injury], in light of [his] past medical history, [is]
causally related to the subject accident” (Webb v Bock, 77 AD3d 1414,
1415 [internal quotation marks omitted]).




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
