At page 853 Evaluating serious injury under insurance law statute4 citing casesgranting summary judgment where plaintiff failed to present objective evidence to counter testimony of defendant’s expert that plaintiffs degenerative disc disease and mild disc bulging predated the accident
- McKendry v. Thornberry, 23 Misc. 3d 707 (N.Y. Sup. Ct. 2009).publishedA serious injury is defined as follows: “[A] personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent conseq…
- Flisch v. Walters, 42 A.D.3d 682 (N.Y. App. Div. 3d Dep't 2007).publishedThus, contrary to Supreme Court’s finding, defendants met their initial burden as to all categories of serious injury claimed by plaintiffs (see Tuna v Babendererde, 32 AD3d 574, 576 [2006]; Hayes v Johnston, 17 AD3d 853, 853-854 [2005]; J…
- Jones v. United States, 408 F. Supp. 2d 107 (E.D.N.Y. 2006).published See Hayes v. Johnston, 17 A.D.3d 853, 853-54 , 794 N.Y.S.2d 462, 463 (3d Dept.2005) (summary judgment granted because plaintiff failed to present objective evidence to counter the testimony of defendant’s medical expert that plaintiffs “de…
- Satterfield v. Maldonado, 127 F. Supp. 3d 177 (S.D.N.Y. 2015).published Cf. Wadford v. Gruz, 35 A.D.3d 258, 259 , 826 N.Y.S.2d 57, 59 (1st Dep’t 2006) (plaintiffs expert noted prior accident and documented differences between MRI taken after earlier accident and after subject accident before concluding that in…
At page 854 Evaluating medical evidence for serious injury causation4 citing casesthat the accident caused or aggravated these conditions. As to plaintiffs claim that the accident caused him to suffer a stroke approximately three months…
- Schmidt v. Meehan, 97 A.D.3d 940 (N.Y. App. Div. 2012).published He did not identify or explain what range of motion tests he performed, or what the normal range of motion is to compare to her performance (see Chiara v Dernago, 70 AD3d 746, 746-747 [2010]; Spektor v Dichy, 34 AD3d 557, 558 [2006]; Chui…
- Motrie v. Reid, 45 A.D.3d 941 (N.Y. App. Div. 3d Dep't 2007).publishedOnce this occurs, plaintiff is obligated to submit objective medical evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 351 [2002]; Snow v Harrin…
- Wilber v. Breen, 25 A.D.3d 836 (N.Y. App. Div. 3d Dep't 2006).publishedAt issue here then is whether plaintiff produced competent medical evidence raising a material issue of fact as to the existence of a serious injury (see Hayes v Johnston, 17 AD3d 853, 854 [2005]).
v.
William Johnston
Appeal from an order of the Supreme Court (Williams, J.), entered May 20, 2004 in Saratoga County, which partially denied defendant’s motion for summary judgment dismissing the complaint.
In this personal injury action arising out of a motor vehicle accident, defendant moved 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). Supreme Court partially denied the motion, dismissing plaintiffs claim for lost earnings, and defendant now appeals.
Defendant met his initial burden of showing that plaintiff, a 46-year-old logger with a history of chronic back pain, suffered no serious injury causally related to the accident by submitting the affidavit of James Storey, the neurologist who conducted an independent medical examination of plaintiff. Storey opined that plaintiffs degenerative disc disease and mild disc bulging had preexisted the accident, and he found no objective evidence[*854] that the accident caused or aggravated these conditions. As to plaintiffs claim that the accident caused him to suffer a stroke approximately three months later and this stroke constitutes a qualifying serious injury, Storey opined that no acute stroke occurred after the accident. He explained that, while plaintiff had presented with “some sort of acute symptomatic event,” there was no evidence of recent neurologic injury. Instead, the brain lesions observed by MRI scan were old and the mild residual neurological deficits were the result of a cerebellar stroke that plaintiff had suffered many years before the accident. This evidence was sufficient to shift the burden to plaintiff to come forward with competent medical evidence creating a triable issue of fact as to the existence of a serious injury (see John v Engel, 2 AD3d 1027, 1028 [2003]; Davis v Evan, 304 AD2d 1023, 1024-1025 [2003]).
Plaintiffs efforts to meet this burden are unavailing. The reports of his treating and consulting physicians do not opine that the observed conditions of his spine were caused by the accident (see Dabiere v Yager, 297 AD2d 831, 832 [2002], lv denied 99 NY2d 503 [2002]; Sorriento v Daddario, 282 AD2d 957, 958 [2001]). Nor did plaintiffs physicians identify the diagnostic tests that they had performed or provide any other objective medical basis for their nonobservable findings with regard to his spine (see Temple v Doherty, 301 AD2d 979, 981-982 [2003]; Gillick v Knightes, 279 AD2d 752, 752 [2001]).
Plaintiffs claim that the postaccident stroke constitutes a serious injury within the meaning of the Insurance Law is also unavailing. George Siniapkin and Theodoras Laddis, the physicians who examined plaintiff regarding a preexisting atrial septal defect or hole in his heart discovered after the stroke, opine that the accident caused an embolus which was able to cross from his lower circulatory system through the hole in his heart to his upper circulatory system and, in turn, cause the stroke. They do not, however, opine that the stroke caused a permanent or significant impairment of a body part, function or system. Plaintiff concedes that the stroke symptoms did not persist and he does not rely on them here, arguing instead that the necessity to either take anticoagulants and give up his work as a logger due to the risk of uncontrollable bleeding or abstain from anticoagulants and ran the risk of a future stoke is itself a physical limitation constituting a serious injury. We are not persuaded. Given plaintiffs history of a neurological event suffered many years before the accident, Laddis states that he would have to treat plaintiff “as if the atrial septal defect were the culprit” and he offers the alternative of a surgical repair of[*855] that defect. His alternative recommendation of surgical repair indicates that the heart defect, and not the postaccident stroke, created the need to use anticoagulants. Thus, Supreme Court erred in failing to grant defendant’s motion for summary judgment in its entirety.
Mercure, J.P., Spain, Carpinello and Kane, JJ., concur. Ordered that the order is modified, on the law, with costs to defendant, by reversing so much thereof as partially denied defendant’s motion for summary judgment; motion granted in its entirety and complaint dismissed; and, as so modified, affirmed.