Opinion
1511 CA 17–00708
02-02-2018
Steven R. KONESKI, Plaintiff–Appellant, v. Alec R. SEPPALA and Eric K. Seppala, Defendants–Respondents.
BOUVIER LAW LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR PLAINTIFF–APPELLANT. KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (HENRY A. ZOMERFELD OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
BOUVIER LAW LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR PLAINTIFF–APPELLANT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (HENRY A. ZOMERFELD OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Plaintiff commenced this action seeking damages for injuries he allegedly sustained when the vehicle he was driving was rear-ended by a vehicle operated by defendant Alec R. Seppala and owned by defendant Eric K. Seppala. Defendants 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) as a result of the accident. Supreme Court granted those parts of defendants' motion with respect to the permanent loss of use, permanent consequential limitation of use, and significant limitation of use categories of serious injury, and denied the motion with respect to the 90/180–day category. We affirm.
We note at the outset that plaintiff limits his appeal to the permanent consequential limitation of use and significant limitation of use categories of serious injury, and therefore he has abandoned his claim with respect to the permanent loss of use category alleged in his amended bill of particulars (see Boroszko v. Zylinski, 140 A.D.3d 1742, 1743, 32 N.Y.S.3d 424 [4th Dept. 2016] ; Fanti v. McLaren, 110 A.D.3d 1493, 1494, 972 N.Y.S.2d 807 [4th Dept. 2013] ).
We conclude that defendants' own submissions in support of their motion raised a triable issue of fact with respect to causation (see Crane v. Glover, 151 A.D.3d 1841, 1842, 59 N.Y.S.3d 212 [4th Dept. 2017] ). Defendants' expert physician, who conducted a medical examination of plaintiff, concluded in two affirmed medical reports that the onset of pain in plaintiff's right hip approximately five days after the accident was consistent with a prior degenerative condition that became symptomatic spontaneously and was not consistent with an acute, traumatic labral tear in the right hip sustained in the accident. Defendants, however, also submitted medical records from plaintiff's treating orthopedic surgeon, who opined that it was "more likely than not [that] a spontaneous symptomatic hip injury did not occur" and that the labral tear in the right hip observed in a postaccident MRI resulted from the accident (see id. ).
We agree with defendants, however, that they met their initial burden on the motion insofar as they established that plaintiff did not sustain a serious injury with respect to the categories of permanent consequential limitation of use and significant limitation of use, and that plaintiff failed to raise a triable issue of fact (see Downie v. McDonough, 117 A.D.3d 1401, 1402–1403, 984 N.Y.S.2d 710 [4th Dept. 2014], lv denied 24 N.Y.3d 906, 2014 WL 5366461 [2014] ). With respect to those two categories, the Court of Appeals has held that "[w]hether 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" ( Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] [internal quotation marks omitted] ). In support of their motion, defendants submitted, inter alia, the medical reports and affirmation of their expert physician who, after reviewing plaintiff's medical records and MRI and conducting an examination of plaintiff, opined that there was no objective medical evidence of a serious injury (see Carfi v. Forget, 101 A.D.3d 1616, 1617, 956 N.Y.S.2d 721 [4th Dept. 2012] ; Austin v. Rent A Ctr. E., Inc., 90 A.D.3d 1542, 1543, 935 N.Y.S.2d 767 [4th Dept. 2011] ). Among other things, defendants' expert physician noted that the range of motion testing conducted by the orthopedic surgeon just over a month after the accident showed that plaintiff exhibited normal abduction and only mild or slight reductions of 10 degrees in flexion and adduction (see Downie, 117 A.D.3d at 1403, 984 N.Y.S.2d 710 ; Carfi, 101 A.D.3d at 1617–1618, 956 N.Y.S.2d 721 ). The medical examination of plaintiff conducted by defendants' expert physician 2½ years later likewise revealed only mild diminishment in certain types of movement (see Thomas v. NYLL Mgt. Ltd., 110 A.D.3d 613, 614, 973 N.Y.S.2d 625 [1st Dept. 2013] ). Defendants thus established that the limitations from plaintiff's right hip injury were "minor, mild or slight," which the court properly classified as "insignificant" or inconsequential within the meaning of the statute ( Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088 [1982] ; see Downie, 117 A.D.3d at 1403, 984 N.Y.S.2d 710 ).
Contrary to plaintiff's contention, his submissions in opposition to the motion are insufficient to raise a triable issue of fact. The mere existence of a labral tear "is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration" ( Silla v. Mohammad, 52 A.D.3d 681, 683, 861 N.Y.S.2d 83 [2d Dept. 2008] ; see generally Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ). Here, the affirmation of plaintiff's orthopedic surgeon reflects that, just over a month after the accident, plaintiff exhibited normal abduction, adduction, and external rotation, and slightly diminished flexion and internal rotation within 10 degrees of the normal range of movement. The orthopedic surgeon's postsurgical evaluation of plaintiff eight months after the accident showed that plaintiff exhibited full flexion without pain, as well as external and internal rotation within the normal range of movement. Such limitations are insufficient to meet the serious injury threshold with respect to the two categories at issue on appeal (see Downie, 117 A.D.3d at 1403, 984 N.Y.S.2d 710 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.