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

199
CA 13-01511
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


DANIELLE DOWNIE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SHAWN T. MCDONOUGH, DEFENDANT-APPELLANT.


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (CORY J.
WEBER OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM K. MATTAR, P.C., WILLIAMSVILLE (ASHLEY FASSO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Catherine R. Nugent Panepinto, J.), entered February 6, 2013.   The
order, insofar as appealed from, denied in part the motion of
defendant 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: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when the vehicle she was driving
collided with a vehicle operated by defendant. In her bill of
particulars, plaintiff alleged that, as a result of the accident, she
sustained a serious injury under the permanent consequential
limitation of use, significant limitation of use, and 90/180-day
categories set forth in Insurance Law § 5102 (d). Defendant moved for
summary judgment dismissing 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 90/180-day category. We agree with defendant that the court
should have granted the motion in its entirety.

     Defendant met his initial burden of establishing that plaintiff
did not sustain a serious injury under the permanent consequential
limitation of use and significant limitation of use categories, and
plaintiff failed to raise a triable issue of fact (see Heller v
Jansma, 103 AD3d 1160, 1161; Carfi v Forget, 101 AD3d 1616, 1617). In
support of his motion, defendant submitted the affirmed report of an
orthopedic surgeon who examined plaintiff less than three months after
the accident, reviewed her medical records, and concluded that there
was no objective evidence to substantiate plaintiff’s subjective
complaints of pain or to warrant further orthopedic treatment. He
                                 -2-                           199
                                                         CA 13-01511

concluded instead that plaintiff sustained only a cervical spine
sprain or strain as a result of the accident, which had resolved by
the time of the examination (see Herbst v Marshall [appeal No. 2], 49
AD3d 1194, 1195). The orthopedic surgeon noted that plaintiff
exhibited no palpable spasm, motor deficits, or objective sensory
deficits, and had full range of motion in her cervical spine.
Defendant also submitted copies of plaintiff’s medical records,
including an X ray report from the date of the accident. The X rays
revealed no fractures, disc herniations, subluxations, soft tissue
swelling, or any other abnormalities in her cervical, thoracic, or
lumbosacral spine. In addition, defendant submitted excerpts from
plaintiff’s deposition, in which plaintiff testified that she returned
to her physically demanding job as a full-time house cleaner less than
two months after the accident, and that she performed the same duties
both before and after the accident. Plaintiff further testified that
there are no activities in which she is unable to participate because
of the accident, although she is somewhat limited in “[r]ock climbing
[and] some physical sports.”

     In opposition to the motion, plaintiff submitted, inter alia, the
certified records of her treating chiropractor, which included an MRI
report reflecting the existence of bulging discs in plaintiff’s
cervical spine. Even assuming, arguendo, that the report is in
admissible form, we conclude that it is insufficient to raise an issue
of fact as to serious injury. It is well settled that “[p]roof of a
herniated [or bulging] 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; Carfi, 101 AD3d at 1618). “Whether a
limitation of use or function is ‘significant’ or ‘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 v Kloc, 77 AD3d 1295,
1296).

     Here, plaintiff relies on mild to moderate range of motion
limitations in her cervical spine exhibited the day after the
accident. “[W]hile a significant limitation of use of a body function
or member need not be permanent in order to constitute a serious
injury, . . . any assessment of the significance of a bodily
limitation necessarily requires consideration not only of the extent
or degree of the limitation, but of its duration as well” (Lively v
Fernandez, 85 AD3d 981, 982 [internal quotation marks omitted]; see
Griffiths v Munoz, 98 AD3d 997, 998). The records of plaintiff’s own
chiropractor reflect that, less than four months after the accident,
plaintiff exhibited normal flexion, extension, and right lateral
bending, with restrictions of approximately 10% to 11% in left lateral
bending and bilateral rotation. Those limitations are “minor, mild or
slight” and thus are properly characterized as “insignificant” or
inconsequential within the meaning of the statute (Licari v Elliott,
57 NY2d 230, 236; see e.g. Il Chung Lim v Chrabaszcz, 95 AD3d 950,
951; Canelo v Genolg Tr., Inc., 82 AD3d 584, 585; Sarkis v Gandy, 15
                                 -3-                           199
                                                         CA 13-01511

AD3d 942, 943).

     Finally, we agree with defendant that the court erred in
concluding that plaintiff raised an issue of fact based upon her
complaints of headaches. Although plaintiff submitted excerpts from
her deposition in which she testified that “basically every day I
would have some type of headache,” it is well settled that “subjective
complaints of pain or headaches are insufficient to establish ‘serious
injury’ ” (Kivlan v Acevedo, 17 AD3d 321, 322; see Licari, 57 NY2d at
238-239; Smith v Reeves, 96 AD3d 1550, 1552). Here, the record
contains no objective basis for plaintiff’s headache complaints (see
Smith, 96 AD3d at 1551; Grayer v Jerez, 192 AD2d 637, 637; Solarzano v
Power Test Petro, 181 AD2d 631, 631, lv denied 80 NY2d 759).
Moreover, plaintiff “offered no proof that [her] headaches in any way
incapacitated [her] or interfered with [her] ability to work or engage
in activities at home” (Licari, 57 NY2d at 239; see Wiegand v Schunk,
294 AD2d 839, 840).

     All concur except WHALEN, J., who dissents and votes to affirm in
the following Memorandum: I respectfully disagree with the majority’s
conclusion that plaintiff’s complaints of headaches were insufficient
to create an issue of fact regarding whether she sustained a serious
injury. I therefore dissent, and would affirm the order.

     Initially, I note that it is of course well established that
“subjective complaints of occasional, transitory headaches” are
insufficient to qualify as a serious injury (Licari v Elliott, 57 NY2d
230, 238). In Licari, the Court of Appeals noted that the injured
plaintiff offered no proof that his headaches in any way incapacitated
him or interfered with his ability to work or engage in activities at
home. There, the plaintiff testified that his headaches occurred only
once every two or three weeks and were relieved by aspirin. The Court
concluded that “the subjective quality of an ordinary headache” does
not fall within the definition of serious injury (id. at 239).
However, our case is different and the rule from Licari should not act
as a bar to a potential recovery for plaintiff herein.

     In the case now before us, plaintiff testified that every day
since the accident she has headaches. She also testified that they
are not getting any better. Plaintiff did not testify to having
occasional or transitory headaches that are of the type described in
Licari. Importantly, the orthopedic surgeon who examined plaintiff on
defendant’s behalf noted in his report that plaintiff complained of
headaches and that this complaint “is out of the scope of my specialty
as an orthopedist” and that he would “defer comment on treatment for
the head to the neurologist.” He also causally related plaintiff’s
injuries to the accident. Additionally, he opined that a neurological
exam was necessary to assess the headaches, and yet defendant did not
have plaintiff examined by a neurologist. The orthopedic surgeon had
access to plaintiff’s medical records and could have opined that
plaintiff was suffering from the type of minor, transitory headaches
contemplated by Licari that would not qualify as a serious injury.
However, he did not offer such an opinion. In fact, he did just the
opposite. He thought, after reviewing the medical records, that
                                 -4-                           199
                                                         CA 13-01511

plaintiff should see a neurologist for the types of headaches she was
experiencing. Thus, because the only proof in the record is that
plaintiff was having headaches every single day since the accident
that were not improving, and because defendant did not have plaintiff
examined by a neurologist, defendant failed to meet his initial burden
on his motion (see Alvarez v Prospect Hosp., 68 NY2d 320, 325). I
note that there is evidence in the record that plaintiff could not go
to see a neurologist on her own because she did not have any
insurance, which is a reasonable excuse for not seeking treatment (see
Alexander v Guevara, 2008 NY Slip Op 33473[U], *5 [Sup Ct, Nassau
County], citing Frankcovig v Senekis Cab Corp., 41 AD3d 643).

     Additionally, I respectfully disagree with the majority that
plaintiff offered no proof that the headaches incapacitated her or
interfered with her ability to work or engage in activities at home.
Again, I note that it was defendant’s initial burden on the summary
judgment motion to establish that plaintiff did not sustain a serious
injury. The physician who examined plaintiff on defendant’s behalf
stated in his report that plaintiff was working at the same job “with
limitations,” and there is a notation in the medical records that
plaintiff quit her job as a house cleaner due to pain. Thus, viewing
the facts in the light most favorable to plaintiff, the nonmoving
party (see generally Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 340),
I conclude that there is evidence that plaintiff’s headaches
interfered with her activities and that summary judgment for defendant
is improper with respect to the two remaining categories of serious
injury.




Entered:   May 2, 2014                         Frances E. Cafarell
                                               Clerk of the Court
