766 N.Y.S.2d 468 | N.Y. App. Div. | 2003
Appeal from an order of the Supreme Court (Caruso, J.), entered August 20, 2002 in Schenectady County, which granted defendants’ motion for summary judgment dismissing the complaint.
Plaintiff was involved in an automobile accident in August 2000, and was taken to the hospital. After X rays failed to reveal any signs of fracture, she was diagnosed with contusions and abrasions, given pain medication and discharged. In August 2001, she commenced this action against the owner and operator of the vehicle that struck her, alleging a serious injury within the meaning of Insurance Law § 5102 (d). Despite her history of lower back pain with radiating pain down her right leg due to a prior injury, plaintiff alleged that, as a result of this accident, she suffers from lower back pain radiating down both legs, as well as pain in her right arm and hand, numbness in her left leg and foot, neck pain, headaches and a loss of balance. Following joinder of issue and discovery, defendants successfully moved for summary judgment. This appeal followed.
Defendants’ proffer consisted of plaintiffs hospital records, her treatment records with Claude Guerra, a chiropractor, MRI results, discovery responses and reports of three independent medical examinations. One independent medical examination conducted in November 2000 by Michael Dudick, a chiropractor,
The burden was upon plaintiff to raise a triable issue of fact through the use of competent, objective medical evidence and diagnostic tests (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]; Drexler v Melanson, 301 AD2d 916, 917-918 [2003]; Rose v Furgerson, supra at 859). She proffered both her affidavit and Guerra’s affidavit, her medical records, and her deposition transcript. Guerra’s affidavit detailed her treatment history, concluding with a diagnosis of “Cervical IVD Syndrome with Myelopathy; Cervical Strain/Sprain (whiplash injury); Sciatica Neuralgia; and Lumbar Strain/Sprain.” Guerra concluded, based upon objective findings, radiographic studies, cervical and lumbar MRIs and nerve conduction tests, that plaintiff was permanently injured due to the August 2000 accident. However, his affidavit was based upon his examination of plaintiff 16 months earlier. Under these circumstances, Supreme Court properly found the affidavit to be deficient as a
With respect to her 90/180 serious injury claim (see Insurance Law § 5102 [d]), we agree that after defendants sustained their prima facie burden on this issue, plaintiff failed to raise a triable issue by either the proffer of her own affidavit describing her limitation in activity or by Guerra’s affidavit. He acknowledges plaintiffs limitation in her daily activities and opines that she will continue to be limited in the future, yet fails to specify the degree to which her activities will be limited or how any objective tests justify what appears to be a self-imposed restriction (see Davis v Evan, supra at 1025; Drexler v Melanson, supra at 919). As there was no demonstration that her usual activities were curtailed “to a great extent rather than some slight curtailment” (Licari v Elliott, 57 NY2d 230, 236 [1982]), we affirm the dismissal of this claim.
Mercure, J.E, Spain, Mugglin and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.