Opinion
# 2017-018-821 Claim No. 123613 Motion No. M-89800 Cross-Motion No. CM-90013
06-14-2017
STEPHANIE A. O'CONNELL and KEVIN P. O'CONNELL v. STATE OF NEW YORK
O'CONNELL LAW FIRM By: Kevin P. O'Connell, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Timothy P. Mulvey, Esquire Assistant Attorney General
Synopsis
Defendant's motion for summary judgment is granted to the extent that it has established no qualitative or quantitative limitation or effect from Claimant's herniated disc/bulge and dura impingement, and no objective finding of a dura tear and spinal fluid leak attributable to this accident to support a finding of serious injury as defined in the Insurance Law, and Claimant has failed to raise a triable issue of fact.
Defendant's motion is DENIED as to whether Claimant suffered a serious injury as defined by the statute.
Claimant's cross-motion is GRANTED only to the extent of establishing Defendant's negligence.
Case information
| UID: | 2017-018-821 |
| Claimant(s): | STEPHANIE A. O'CONNELL and KEVIN P. O'CONNELL |
| Claimant short name: | O'CONNELL |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123613 |
| Motion number(s): | M-89800 |
| Cross-motion number(s): | CM-90013 |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | O'CONNELL LAW FIRM By: Kevin P. O'Connell, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Timothy P. Mulvey, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 14, 2017 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a motion seeking summary judgment. Claimant opposes the motion and brings a cross-motion for summary judgment on the issue of Defendant's liability.
Use of the term Claimant will refer to Stephanie A. O'Connell unless otherwise noted because Kevin P. O'Connell's claim is solely derivative.
This claim arises from a motor vehicle accident on April 21, 2012, at approximately 1:50 p.m., at the intersection of Columbus Avenue and East Genesee Street in the City of Syracuse, County of Onondaga. Claimant alleges in the claim and notice of claim that she was properly stopped at a red traffic signal when she was struck in the rear by a vehicle owned by the State of New York, and driven with permission by Nicole M. Garofolo, an employee or student of the State University of New York College of Environmental Science and Forestry. Claimant also alleges in the notice of claim that as a result of the accident she has suffered serious injuries including "concussion, post-concussive syndrome (including symptoms of inability to concentrate, mood swings, photosensitivity, severe headaches, impaired vision, etc.); herniated disc at the level of T6-7; right elbow epicondylitis; and cervical sprain/strain." Defendant interposed a verified answer to the claim. Discovery has been completed. Defendant's Summary Judgment Motion
Defendant submits copies of Claimant's pleadings, the verified bill of particulars, portions of Claimant's deposition, and the affirmation of Robert S. Knapp, M.D., to support its position that Claimant has not suffered a serious injury as defined by Insurance Law section 5103 (d). Dr. Knapp indicates that he reviewed Claimant's medical records following the accident and examined her on April 6, 2016, almost four years after the accident. It is Dr. Knapp's opinion that Claimant did not suffer a concussion as a result of the accident, her complaints are all non- specific, subjective, and not supported by the medical records or imaging studies. Dr. Knapp notes that Claimant's complaints could be worsened by her pre-existing psychiatric issues with anxiety.
Summary judgment, as is often said, is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law (Sillman v Twentieth Century-Fox Film, Corp., 3 NY2d 395 [1957]). On a motion for summary judgment, the movant has the burden to establish his right to judgment, as a matter of law, by proof in admissible form (Friends of Animals v Assoc. Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]). The opposing party must then present evidentiary proof to establish the existence of a material issue of fact which would require a trial (Id.; Zuckerman v City of New York, 49 NY2d 557 [1980]). It is not the place of the Court on a motion for summary judgment to determine credibility (see Knepka v Tallman, 278 AD2d 811 [4th Dept 2000]; Furlong v Storch, 132 AD2d 866, 868 [3d Dept 1987]). The evidence submitted on the motion for summary judgment must be viewed in the light most favorable to the nonmoving party, giving that party the benefit of any favorable inference (Ruzycki v Baker, 301 AD2d 48, 50 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).
In a personal injury action arising from a motor vehicle accident, a claimant bears the burden to establish a serious injury as defined by statute (Insurance Law § 5103 [d]). If a claimant has not suffered a serious injury then no personal injury action may be maintained since the legislature, in enacting the No-Fault statutes, intended to provide compensation for non-serious injuries and economic loss from a motor vehicle accident and limit litigation (Insurance Law §§ 5101-5109; Licari v Elliott, 57 NY2d 230 [1982]). Thus, "any injury not falling within the new definition of serious injury is minor and a trial . . . is not permitted under the no-fault system" (Licari, 57 NY2d at 235).
The Insurance Law section 5102 (d) sets forth nine categories of injury which the statute defines as "serious": (1) death; (2) dismemberment; (3) significant disfigurement; (4) fracture; (5) loss of fetus; (6) permanent loss of use of body organ, member, function or system; (7) permanent consequential limitation of use of body organ or member; (8) significant limitation of use of body function or system; and (9) medically determined injury or impairment of a nonpermanent nature which prevents the injured person from performing substantially all material acts of that person's usual and customary activities for 90 of the first 180 days following the accident. In Claimant's bill of particulars dated November 20, 2014, he asserts that the thoracic disc herniation at the level of T6-7 is permanent, and the symptoms of fibromyalgia and post-concussion syndrome are permanent. The bill of particulars also indicates Claimant has been confined to home and bed, periodically during portions of every day, since the accident in order to alleviate symptoms of cervicalgia, post-concussion syndrome, exotropia, thoracic disc herniation, or fibromyalgia. It is stated that Claimant has been unable to pursue her normal work activities, has been completely incapacitated from work since the accident, and has suffered a significant loss of income. Although not specifically stated, it seems that Claimant is proceeding upon allegations that her injuries comport with the statutory definition of serious injury under the permanent consequential limitation of use of body organ or member, significant limitation of use of a body function or system, and a medically determined injury or impairment which prevents the performance of substantially all material acts of usual and customary activities. These categories of injury require objective proof, beyond subjective complaints. Objective proof of the injury with quantifications of the lost function or usage and qualitative assessments of Claimant's condition are necessary to permit the conclusion that the injuries are significant, permanent, and proximately caused by the accident (Stamps v Pudetti, 137 AD3d 1755 [4th Dept 2016]). Objective proof can come in the form of clinical observations of the injured party's limitations where there is some quantitative comparison (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]).
The bill of particulars is not signed or verified by Claimant, it is only signed by Kevin O'Connell.
Defendant has not provided any of Claimant's medical records or imaging reports, however, Dr. Knapp's opinions are based upon his review of those documents and his examination of Claimant. Dr. Knapp indicates that in order to diagnose a concussion there must be a loss of consciousness or amnesia; subjective feelings of being "fuzzy" and headaches are not sufficient. He finds no organic basis for her complaints of headaches, or positional vertigo with nausea, and states the records and imagining studies do not support her complaints of cognitive impairment. He could not reproduce the finding of Dr. Ward on June 29, 2012 and March 3, 2015, for "convergence insufficiency," or baseline increase in photosensitivity. Dr. Knapp attributes her non-specific and subjective symptoms to her pre-existing psychiatric and anxiety issues. Although the imaging studies seem to reflect a disc herniation/bulge, Dr. Knapp seems to dispute the disc herniation diagnosis, and notes that upon his examination her complaints related to disc herniation/bulge are not significant, as she presents with no demonstrated weakness or sensory loss in the lower extremities. Dr. Knapp indicates that a herniated disc/bulge can be found in the general populations without spinal axis pain. Dr. Knapp seems to opine that any injury Claimant suffered is not permanent, consequential, significant, or objectively medically determined.
Giving Claimant the benefit of every favorable inference, the defendant has failed to meet its full burden on its motion. Dr. Knapp's affirmation does not establish as a matter of law that Claimant did not suffer any serious injury. Dr. Knapp blankly attributes Claimant's symptoms to her pre-existing mental health condition without any indication of similar prior complaints. Although, when he examined Claimant on April 6, 2016, Dr. Knapp could not reproduce Dr. Ward's findings at the Concussion Clinic of "convergence insufficiency" from her June 29, 2012 neurologic examination, this does not establish that she did not present with this "notable" objective deficit two months after the accident and almost four years before Dr. Knapp's examination. This, coupled with Claimant's deposition testimony detailing her daily work and home life limitations, relating in part to her difficulty seeing which impacts her ability to read, and headache pain, fails to show as a matter of law that Claimant did not suffer a medically determined injury or impairment to meet the 90/180 day requirement of the statute. Defendant has met its burden on the permanent consequential limitation of use of a body organ or member and significant limitation of use of body function or system. Dr. Knapp's affirmation reflects that on examination Claimant's reduced range of right or left cervical flexion extension to less than 10 degrees and similar lumbar mobility was based upon her subjective complaints of nausea and vertigo. Other testing, both visual, hearing, reflexes, motor tone, strength, coordination, sensation, gait and balance were all normal, although he does indicate that her Romberg test, which he does not describe, was "notable for some sway." Dr. Knapp opined, based upon his review of the records and imaging studies, that there is no support to find a tissue injury or serious injury to the cervical spine or weakness or sensory loss in her lower extremities. He discounts any diagnosis of concussion without amnesia or loss of consciousness.
Dr. Knapp's Affirmation ¶ 6.
In response to Defendant's motion, Claimant has submitted many of her medical records, imaging reports, and the affirmations of Brian P. Rieger, Ph.D., and Samah Mohiuddin, M.D. Claimant's allegations of injuries from the accident comprise primarily two diagnoses: a herniated disc at the T6-7 level with "mild mass effect on the left anterior cord" with the later diagnosis of a tear in the dura and resultant spinal fluid leak and, secondly, concussion-post-concussion syndrome.
Claimant's Exhibit A.
Claimant saw her primary care physician, Dr. Michael Mincolla, within two days of the accident on April 23, 2012, and complained of headaches, neck, and back pain, she denied blurred vision. Claimant reported a prior herniated disc at L5-S1 in 1989. At this exam, Claimant showed no signs of acute distress or apparent discomfort. She exhibited a delayed finger to nose coordination and her balance was off. He diagnosed a concussion with no loss of consciousness and sprain and strain of her neck. He ordered X-rays of her thoracic and cervical spine. Dr. Mincolla later referred Claimant to Dr. Brian P. Rieger, a licensed psychologist, and Upstate University Hospital Rehabilitation Therapy for an outpatient concussion evaluation.
Claimant first saw Dr. Rieger on May 23, 2012, and she was evaluated at Upstate Rehabilitation Therapy on June 7, 2012. Dr. Rieger specializes in the field of Rehabilitation Psychology and treats patients for brain injury and concussion. Relying on Claimant's subjective complaints, the description of the accident, and the available medical records, Dr. Rieger diagnosed Claimant as suffering from a concussion/mild traumatic brain injury with post-concussion syndrome and associated chronic pain disorder, with severe anxiety and depression. Dr. Rieger relies upon the Mayo Clinic definition of a concussion as a mild traumatic brain injury usually caused by a blow to the head. "Loss of consciousness is not required" for a concussion diagnosis or post-concussion syndrome. Dr. Rieger notes that the symptoms for post-concussion syndrome are: headache, dizziness, fatigue, irritability, anxiety, insomnia, loss of concentration and memory, and noise and light sensitivity. Dr. Rieger indicates that Claimant has suffered from all of these symptoms since the accident on April 21, 2012. Dr. Reiger also notes that although, in some cases, imaging studies of the brain objectively disclose brain edema, this is not common and, typically, a concussion diagnosis is made based upon clinical findings of focal neurolgical deficits, particularly visual symptoms such as convergence insufficiency, eye alignment issues, headaches, and photophobia. Dr. Rieger notes that since the accident Claimant has exhibited "accomodative convergence insufficiency," and "eye alignment issues" as well as headaches and photophobia which are focal neurological deficits associated with concussion/mild traumatic brain injury. Dr. Rieger points to what he describes as objective nerological findings of Claudine Ward, M.D., from June 29, 2012. The Court could not find that specific record attached, however, the Upstate Rehabilitation Therapy records of June 7, 2012, confirm that Claimant was treating with Dr. Ward at that time, and Dr. Knapp also confirms Claimant's evaluation with Dr. Ward on June 29, 2012. The first submitted record of Dr. Ward is dated July 26, 2013, more than a year after the accident. In the record, it is noted that upon examination Claimant has a full cervical range of motion, but her right eye was slower to converge than the left. All other findings are normal. Dr. Ward indicates that Claimant's concentration showed improvement, however, she did not describe how this was evaluated, or what was baseline. Visual impairment was noted. Dr. Ward's record from May 8, 2015, indicates that Claimant's "convergence insufficiency 6 inches." Also, in the Occupational Therapy notes of Yvonne Freeman, from November 2, 2012, it states "[b]inocular motility with slight pursuit impairment, fixaton disparity in vertical plane, medial and lateral deviation on L eye upon superior and inferior gaze respectively. Monocularity, generalized weakness and pursuit impairment. Low tolerance for visual tasks. Bil exophoria noted upon near and far cover test. Convergence WNL 2.5"." The records clearly reflect objective evidence of a visual abnormality that involves primarily her left eye in 2012, and is then described in her right eye by May 20, 2013. In the records, this condition arose following the accident, and therein is attributed to the head trauma from the vehicle impact and her diagnosis of a concussion and resulting post-concussion syndrome. The condition continued at least through September 5, 2014, with some noted improvements. Defendant's expert, Dr. Knapp, in his reply affirmation, does not address Claimant's measured visual impairments, or the limitation on her ability to read for any extended period of time which limits her ability to work as an attorney. Dr. Knapp also does not take issue with the symptoms of a concussion listed by Dr. Rieger, which are all subjective and consistent with Claimant's complaints since the accident. Claimant's medical records and submissions establish an objective basis for the visual abnormality and concussion diagnosis with post-concussion syndrome and is either permanent consequential limitation of body organ or member or significant limitation of use of a body function or system.
Dr. Rieger's Affirmation, ¶ 13.
Claimant's Exhibit F.
Claimant's Exhibit F and G.
Although the medical records support that Claimant suffered a disc herniation at the T6-7 level with mild mass effect on the left anterior cord from the accident, there is no evidence of any objective qualitative or quantified impairment from that injury other than Dr. Samah Mohiuddin's affirmation. Dr. Mohiuddin, a neurologist, initially saw Claimant four years after the accident, but quantifies her overall body range of motion limitation from the herniated disc at 40-80 percent since the accident. It is not clear upon what she bases this. After seeing Claimant and her described positional headache symptoms, Dr. Mohiuddin indicates she suspected a possible traumatic tear in the dura resulting in a cerebrospinal fluid leak. She referred Claimant to a neurosurgeon at Strong Memorial Hospital, Dr. Kevin Walter. Dr. Walter's report refers to an additional MRI on May 24, 2016, that shows a "moderate to large left paramedian central midline disc herniation with mass effect on the thoracic cord, as well as a T8-9 mild diffuse disc bulge with disc desiccation and some anterior and posterior spurring." Despite no evidence of a spinal fluid leak in the imaging records, and no noted deficits on physical examination, he diagnoses a cerebral spinal leak apparently based solely upon her subjective symptoms. Dr. Knapp notes the absence of any prior diagnosis of this leak, and provides that any tear in the dura would have healed after four years. "Proof of a herniated 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 [2005] ). Moreover, in reviewing the medical records from Dr. Claudine Ward from July 26, 2013, Claimant reports no positional headaches, and at that time described her "vision deficits as her most significant issue." In fact, it appears that Claimant made no complaints of positional headaches within the year following this accident and not until 2016.
Exhibit C, page 4, attached to Dr. Mohiuddin's Affirmation.
Exhibit D, page 5, attached to Dr. Rieger's Affirmation. --------
Defendant's motion is GRANTED to the extent that it has adequately established no qualitative or quantitative limitation or effect from Claimant's herniated disc/bulge and dura impingement, and no objective finding of a dura tear and spinal fluid leak attributable to this accident to support a finding of serious injury as defined in the Insurance Law, and Claimant has failed to raise a triable issue of fact. Moreover, Claimant did not even allege a dura tear with spinal fluid leak as one of the injuries sustained from the accident in the bill of particulars nor has that document been amended.
Defendant's motion is DENIED as to whether Claimant suffered a serious injury as defined by the statute relating to permanent consequential limitation, significant limitation, or medically determined injury or impairment for the 90/180 day categories from the concussion/post-concession syndrome diagnosis. Claimant's Cross-Motion
Claimant brings a motion seeking summary judgment on the issue of liability. Defendant has not provided opposition to the cross-motion.
In the claim, Claimant has alleged that she was properly stopped in her lane at a red traffic signal when she was struck in the rear by a van owned by the State of New York and driven by Nicole M. Garofolo, a student. Ms. Garofolo testified at her deposition that she was permitted to drive the van owned by the State of New York, and given the keys by the Volunteer Coordinator of her school. She was participating in a campus day of service. She testified that she was proceeding down a hill approaching Claimant's vehicle stopped at the red light, when she applied her brakes and discovered that they were not working. She testified that the brakes had previously worked. She estimates that she was traveling down the hill at approximately 30 miles per hour when she struck Claimant's vehicle. Ms. Garofolo testified that Claimant was stopped at the red light and did nothing to cause the accident. Defendant has not disputed ownership of the vehicle or Ms. Garofolo's authorized usage.
Vehicle and Traffic Law section 1129 (a) provides: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." "A rear-end collision with a vehicle that is stopped or in the process of stopping 'creates a prima facie case of liability with respect to the driver of the rearmost vehicle, thereby requiring that driver to rebut the inference of negligence by providing a nonnegligent explanation for the collision.' " (Lyons v Zeman, 106 AD3d 1517 [4th Dept 2013], quoting Rosario v Swiatkowski, 101 AD3d 1609 [4th Dept 2012]). Where Defendant has raised the issue of a nonnegligent explanation such as an unanticipated brake failure, " 'it is incumbent upon [defendant] to show that the problem with the brakes was unanticipated, and that [it] had exercised reasonable care to keep them in good working order.' " (Lyons, 106 AD3d at 1517, quoting Suitor v Boivin, 219 AD2d 799-800 [4th Dept 1995]). Defendant has failed to come forward with any proof that the brakes on the subject van were kept in proper working order, as a result, Claimant has established the negligence of the driver. As owner of the van, driven with permission, Defendant is responsible for the negligence of the permitted driver (Vehicle and Traffic Law § 388).
Accordingly, Claimant's cross-motion is GRANTED only to the extent of establishing Defendant's negligence (see Ruzycki v Baker, 301 AD2d 48, 51 [4th Dept 2002]). The issue of serious injury (to assess liability) and damages will be determined at trial.
LET INTERLOCUTORY JUDGMENT ACCORDINGLY.
June 14, 2017
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding these motions:
M-89800
1) Notice of Motion. 2) Affirmation of Timothy P. Mulvey, Esquire, Assistant Attorney General, in support, with exhibits attached thereto. 3) Affirmation of Robert S. Knapp, M.D., in support. 4) Defendant's Memorandum of Law, dated January 12, 2017. 5) Affidavit of Samah Mohiuddin, M.D., sworn to February 9, 2017, in opposition, with exhibits attached thereto. 6) Affidavit of Brian P. Rieger, Ph.D., sworn to February 13, 2017, in opposition, with exhibits attached thereto.
CM-90013
7) Notice of Cross-Motion. 8) Affirmation of Kevin P. O'Connell, Esquire, in support of Claimant's Cross-Motion and in opposition to Defendant's motion, with exhibits attached thereto. 9) Reply Affirmation of Robert S. Knapp, M.D., in opposition. 10) Defendant's Memorandum of Law, dated April 28, 2017.