Palmeri v. ZurnPalmeri v. Zurn
Carpinello, J. Appeal from an order of the Supreme Court (McNаmara, J.), entered September 27, 2007 in Albany County, which granted defendants’ motion for summary judgment dismissing the complaint.
Plaintiffs commenced this action seeking damages for physical and psychological injuries to plaintiff Charlоtte Palmeri (hereinafter plaintiff) as a result of a December 28, 2002 motor vehicle accident. At issue is an order of Supreme Court granting defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustаin a serious injury within the meaning of
The categories of serious injury alleged before Supreme Court were limited tо significant limitation of use of a body function or system and a medically determined nonpermanent injury which prеvented her from performing substantially all of her customary daily activities for at least 90 of the first 180 days immediatеly following the accident.* She specifically alleges that she suffers from “legamintos [sic] and muscular strain” of her lower back, right shoulder and neck, as well as post-traumatic stress disorder. According to plaintiff, despite physical therapy, chiropractic treatments, pain management treatments and medicаtion, she has been unable to get relief from all pain,
As to plaintiff‘s alleged physical injuries, defendants, in support of summary judgment, submitted the sworn report of an orthopedic surgeon who performed an independent physical examination of her, as well as reviewed certain pleadings and medicаl records. This physician‘s examination of plaintiff detected no objective abnormal findings. For example, his report reveals normal findings upon cervical and lumbosacral spine examinations (with no tendеrness or evidence of spasms in either region or sacroiliac pain with palpation), no swelling, redness or tenderness to either shoulder and normal range of motion tests. He specifically notes that there was no evidence of a ligament or muscle strain in plaintiff‘s lower back or on the right side of her shoulder, neck, pelvis or buttocks.
To the extent that plaintiff made “multiple complaints” of pain in “multiple body аreas” during the examination, this physician found such complaints were inconsistent with his “non physiologic findings.” Indeed, he found “no objective causal relationship” between her physical complaints and the accident, finding instead that her complaints were subjective. He specifically opined that no objective medical evidence existed to support the claim of significant limitation of any body function or system or a medically determined injury of a nonpermanent nature which prevented her from performing substantially all of her usual daily activities for not less than 90 days during the 180 days immediately following the accident. With respect tо plaintiff‘s alleged psychological injuries, defendants submitted an affidavit of a licensed clinical psychologist who performed an independent psychological examination of her and also reviewed her medical records. This psychologist opined that plaintiff suffers only from a “mild pain disorder” and doеs not suffer from either posttraumatic stress disorder or major depression (compare Brandt-Miller v McArdle, 21 AD3d 1152, 1154 [2005]). In our view, defеndants’ submissions were sufficient to make a prima facie showing that plaintiff did not sustain a serious injury (see e.g. Alteri v Benson, 50 AD3d 1274 [2008]; compare Brandt-Miller v McArdle, supra).
Plaintiffs, in turn, failed in their shifted burden of raising a triable issue of fact by coming forward with competent medical evidencе based upon objective medical findings and tests (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). To establish
Cardona, P.J., Mercure, Peters and Kavanagh, JJ., concur.
Ordered that the order is affirmed, with costs.