Opinion
Index No. 2017-1673
02-19-2020
HEATHER L. KRAUS and AUBREY C. KRAUS, Plaintiffs, v. CHARLES A. BUCKHOLTZ, DL PETERSON TRUST, and PHH PERSONALEASE CORPORATION, Defendants.
APPEARANCES: Plaintiffs Matthew Kaiser, Esq. William Mattar, PC 16 West Main St., Suite 736 Rochester, New York 14614 Defendants Matthew A. Lenhard, Esq. Rupp Baase Pfalzgraf Cunningham, LLC The Powers Building 16 West Main Street, Suite 400 Rochester, New York 14614
At a Motion Term of the Supreme Court of the State of New York held in and for the Sixth Judicial District at the Chemung County Courthouse on the 24th day of January, 2020. PRESENT: DECISION AND ORDER RJI No. 2019-0264 APPEARANCES: Plaintiffs Matthew Kaiser, Esq.
William Mattar, PC
16 West Main St., Suite 736
Rochester, New York 14614 Defendants Matthew A. Lenhard, Esq.
Rupp Baase Pfalzgraf Cunningham, LLC
The Powers Building
16 West Main Street, Suite 400
Rochester, New York 14614 OLIVER N. BLAISE , III, J.S.C.
Plaintiffs Heather L. Kraus and Aubrey C. Kraus commenced this action against defendants Charles A. Buckholtz, DL Peterson Trust, and PHH Personalease Corporation seeking to recover for personal injuries resulting from a motor vehicle accident.
Defendants' collectively move for summary judgment dismissing the complaint as against both plaintiffs alleging their respective failures to establish serious injuries pursuant to Insurance Law § 5102 and/or causation. Plaintiffs oppose the motions in all respects.
The court heard oral argument from counsel on January 24, 2020.
BACKGROUND
This action arises from a car accident which occurred on June 9, 2016 at the intersection of Watkins Road and Railroad Street in the Town of Catlin, New York. Plaintiff Heather Kraus, the mother of plaintiff Aubrey Kraus, was driving the Kraus vehicle and two of her children were in the vehicle, daughter Aubrey (a high school junior at the time) in the front passenger seat and son Caleb in the back seat. Defendants' vehicle was operated by defendant Charles Buckholtz while in his employment with the owners of the vehicle, the remaining defendants. The Kraus vehicle was behind a third vehicle that had stopped or slowed to make a left-hand turn when the Kraus vehicle was struck from behind on the driver's side by defendants' vehicle.
For clarity and ease of reference the court refers to plaintiffs by their first names. Caleb was not injured and is not a party to this litigation.
This action was commenced upon the filing of a Summons and Complaint on June 14, 2017 in the Chemung County Clerk's Office. On or about July 18, 2017, defendants interposed an answer with affirmative defenses.
Heather and Aubrey allege they each suffered serious - albeit separate - injuries and rely upon the same three categories, namely: (1) permanent consequential limitation of use of a body organ or member; (2) significant limitation of use of a body function Or system; and (3) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment (Insurance Law § 5102).
As will be discussed in more detail below, Heather alleges she suffered post-concussion syndrome, cranial nerve damage, and a disc protrusion at C5-C6. Aubrey alleges she suffered a syrinx at C7-T1 or aggravation thereof, muscle spasms, as well as post-concussive syndrome.
DISCUSSION
It is well-settled that on a defense motion seeking summary judgment pursuant to CPLR § 3212 relative to the serious injury threshold the defendant "[b]ears the initial burden of establishing the absence of a serious injury as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]" (McElroy v Sivasubramaniam, 305 AD2d 944, 945 [3d Dept 2003]). The proponent's "[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If defendant meets their initial burden, then the burden shifts "[t]o plaintiff to demonstrate the existence of a triable issue of fact, through competent medical evidence based on objective findings and diagnostic tests [citations omitted]" (Armstrong v Morris, 301 AD2d 931, 932 [3d Dept 2003]). The court must accept the non-moving party's evidence as true and grant them every favorable inference (Hourigan v McGarry, 106 AD2d 845 [3d Dept 1984], lv dismissed 65 NY2d 637 [1985]).
I. SIGNIFICANT LIMITATION OF USE OF A BODY FUNCTION OR SYSTEM AND PERMANENT CONSEQUENTIAL LIMITATION OF USE OF A BODY ORGAN OR MEMBER
The court will address these two categories together since they involve similar considerations. The Court of Appeals has explained that the "limitation of use" may be established in one of two ways, namely by medical proof of a quantitative percentage (e.g., a numeric percentage of a loss of range of motion) or, in the alternative, medical proof of a functional impairment (excluding loss of range of motion) by way of a medical expert's qualitative assessment of plaintiff's current condition as compared to her normal function (Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). The term "significant" means the alleged limitation must be shown to be more than minor, mild or slight as established by expert medical proof (Licari v Elliott, 57 NY2d 230, 236 [1982]).
A. HEATHER
In support of their motion, defendants rely upon the results of an independent medical examination (IME) performed by Richard L. Barbano, M.D., Ph.D., on September 17, 2018 and memorialized in an IME report dated October 19, 2018 (Defendants' Exhibit J) and addendum thereto dated February 26, 2019 (Def Ex K), together with Heather's deposition testimony and imaging studies.
Contrary to Heather's argument, defendants' failure to submit the actual medical records with their moving papers does not warrant denial (Lowell v Peters, 3 AD3d 778 [3d Dept 2004]).
1. Post-Concussion Syndrome and Cranial Nerve Damage
Barbano's IME report describes Heather's cranial exam and cranial nerve exam (Def Ex J, p 4). Barbano rules out cranial nerve damage because:
[t]here is no evidence of tongue deviation on exam, nor is there any medically reasonable explanation for one to have occurred at any time in relation to this accident. The mechanism of injury in this case would not produce an isolated cranial nerve injury to cause tongue deviation. She did not sustain any cranial nerve damage or injury.(Id. at 10). Barbano's report further rules out post-concussive syndrome because "[t]here was no head trauma, no alteration of consciousness at the time of the event, and there is a delay in the development of her symptoms beyond a reasonable time frame" (Def Ex J, p 10). Additionally, Barbano opines that Heather's exam is consistent with occipital neuralgia which is the cause of her headaches.
The court finds that Barbano's report satisfies defendants' initial burden of establishing Heather's absence of a serious injury of either post-concussive syndrome and/or cranial nerve damage as a matter of law. Thus, the burden shifts to Heather to demonstrate the existence of a triable issue of fact on that threshold issue, through competent medical evidence based on objective findings and diagnostic tests.
In opposition, Heather argues she has created the classic battle of the experts by submitting the affidavits of a physician's assistant Erica Mendelsohn, PA-C, and two chiropractors, Donna H. Rodriguez, D.C. and Denise V. Nicastro, D.C., who disagree with Barbano's conclusion. However, the court finds that these affidavits fall far short of Heather's burden in opposition. First, the court agrees with defendants that Heather failed to disclose her treatment with Rodriquez and thus Rodriquez's affidavit should not be considered by the court (CPLR § 3214 [b]; 22 NYCRR § 202.17[b]).
Second, with respect to the affidavits of Nicastro and Mendelsohn, the court also agrees with defendants that portions of their affidavits are improperly based upon medical records that are not properly before the court. It is well-settled that "[a] moving defendant may rely on unsworn reports of a plaintiff's treating physician and is not required to produce affidavits or affirmations of medical experts to make the requisite showing provided, of course, that the reports are sufficiently complete and, combined with the other proof, demonstrate that the plaintiff did not suffer a serious injury [citations omitted]" (Seymour v Roe, 301 AD2d 991, 991 [3d Dept 2003]). However, in opposition plaintiff may not rely on an unsworn report and an affirmation of plaintiff's medical providers, such as here by Nicastro and Mendelsohn, that clearly rely on the unsworn reports of others (such as Renzi) in arriving at their conclusions is without probative value (Randio v Thomas, 270 AD2d 767 [3d Dept 2000]; Furrs v Griffith, 43 AD3d 389, 390 [2d Dept 2007]; Merisca v Alford, 243 AD2d 613, 614 [2d Dept 1997]; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267 [2d Dept 1995]).
However, the court will accept those portions of Nicastro or Mendelsohn affidavits based upon their own actual treatment of Heather. That said, neither provider - Nicastro or Mendelsohn - sets forth any objective medical evidence demonstrating that Heather suffered from post-concussive syndrome and/or cranial nerve damage. Rather, Mendelsohn argues that Heather's symptoms correlate with Heather's subjective reports of pain and symptoms without providing any objective medical basis for her conclusion (Mendelsohn Aff, ¶ ¶ 13, 16, 20). Likewise, Nicastro simply opines Heather's symptoms "appear consistent with the physical limitations expressed during treatment sessions" (Nicastro Aff, ¶ 14).
Additionally, the court notes that Heather's brain MRI conducted on June 24, 2016 demonstrated no significant findings. Although Heather's counsel avers that Renzi, Heather's general physician, diagnosed her with post-concussive syndrome, there is no supporting affidavit from Renzi explaining his finding with objective medical proof. The court finds that Heather has failed to demonstrate the existence of a triable issue of fact on her alleged injuries of post-concussive syndrome or cranial nerve damage through competent medical evidence based on objective findings and diagnostic tests.
Accordingly, defendants' motion for summary judgment seeking to dismiss Heather's complaint as to a post-concussive syndrome and/or cranial nerve damage injuries is granted.
2. Cervical Injury/Disc Protrusion
Heather alleges a cervical injury due to a disc protrusion at C5-C6. In support of their motion, defendants' proof is limited to Barbano's IME report and addendum, Heather's imaging results, and Heather's deposition transcript. Barbano examined Heather's cervical spine and reports as follows:
Defendants did not submit Heather's medical records.
Cervical Spine Exam: There was normal curvature to inspection. Cervical spine was non-tender to gentle palpation. No palpable spasm; bilateral trapezius hypertonicity. Range of motion showed rotation to 50 degrees bilaterally; to the left reported left posterior neck pain. Flexion to 30 degrees, extension to 45 degrees. Compression test is done tentatively but precipitates complaints of increased shoulder discomfort bilaterally. Light percussion produced complaints of pain into right shoulder.(Def Ex J, p 10 [emphasis added]).
***
In my opinion, she sustained a cervical flexion-extension injury consistent with a cervical sprain/strain. There is no medical reason for permanence, and there are no objective findings of permanent injury. There currently is not nor ever was a medical reason for her left sided weakness. There is no true neurologic weakness found on exam. The central disc protrusion at C5/6 reported on her MRI is not the cause of these symptoms [left sided weakness]. In the absence of any pre-existing symptoms or prior imaging, however, it is more likely than not causally related to the MVA of 6/9/16. Should further records become available, this opinion may or may not change. The uncovertebral joint hypertrophy is an age related condition and is found too soon after the incident to be causally related.
In sum, defendants' expert, Barbano, acknowledges the presence of Heather's C5-C6 disc protrusion and further confirms that it is likely related to this accident. Defendants' argument is simply that Heather's cervical injury does not rise to the level of a significant or permanent consequential limitation of use or, stated another way, Heather's injuries are merely a mild, minor or slight limitation of use. To that end, defendants rely upon Barbano's IME report wherein he reports Heather's range of motion limitations. The court finds Barbano's attempt at this quantitative analysis to be incomplete because Barbano fails to compare the limitations he observed to what would be considered a normal range of motion. Thus, the court finds that defendants' proof, via Barbano's report, is insufficient to establish that the decreased range of motion in Heather's cervical spine is so mild, minor or slight to be considered insignificant within the meaning of the no-fault statute (Diorio v Butler, 69 AD3d 787 [2d Dept 2010]; Webb v Keyspan Corp., 56 AD3d 464 [2d Dept 2008] ["absent such comparative quantification, the court cannot conclude that the decreased...range of motion noted was mild, minor, or slight so as to be considered insignificant...."]). The court also notes that Barbano makes no attempt to provide a qualitative assessment (excluding range of motion percentages) of Heather's cervical spine injuries.
It is well-settled that the failure to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d 851 at 853). In view of the foregoing, the court finds that defendants' motion for summary judgment seeking to dismiss Heather's complaint regarding her cervical spine injury/ C5-C6 disc protrusion is denied and the court need not address Heather's opposing papers.
B. AUBREY
Defendants also move for summary judgment dismissing Aubrey's claim of serious injuries under the significant limitation of use of a body function or system or permanent consequential limitation of use of a body organ or member categories. In support of their motion, defendants rely upon the results of an independent medical examination (IME) performed by Chad Heatwole, M.D. on September 28, 2018 and memorialized in an IME report dated October 10, 2018 (Def Ex L), together with Aubrey's deposition testimony, select medical records, and imaging studies. Heatwole performed a physical examination of Aubrey and found her to "demonstrate a high level of functioning" and found "no definitive evidence that she has experienced any significant or continued neurological or neuromuscular dysfunction or disability as a result of the events on 6/9/16" (Heatwole IME Report, p 7). Additionally, defendants rely upon the reports of Aubrey's own treating neurosurgeon Shahnawaz H. Qureshi, D.O. and neurologist Richard V. Welles, M.D. (Def Exs J & K).
Aubrey's medical records establish that she went to a walk-in the day after the accident and was diagnosed with a thoracic sprain and prescribed a muscle relaxer. On June 16, 2016, Aubrey saw her primary care physician, Stephen Renzi, M.D., who diagnosed cervical and thoracic spine sprain and ordered X-rays. The X-rays taken of Aubrey's cervical and thoracic spine on June 16, 2016 showed no fracture or subluxation but did show levoscoliosis, which was described as a chronic condition. Follow-up visits on July 25, 2016 and September 6, 2016 were uneventful. On October 21, 2016, Aubrey reported shaking and a tremor in her hands, primarily her right hand. An MRI of her brain on June 24, 2016 and a CT scan of her brain on November 4, 2016 showed no gross abnormalities. An MRI of the cervical spine on October 11, 2016 showed a "small central syrinx at C7-T1. This may be posttraumatic in nature" (Def Ex I).
Aubrey then treated with neurosurgeon Qureshi who examined her on one occasion for neck and back pain and the reported hand tremors. Qureshi concluded Aubrey's neurological exam was normal but referred her to a neurologist (Def Ex J). Aubrey was then examined by neurologist Welles on one occasion, January 9, 2017. Welles' office notes states that:
[w]ith regards to her syrinx, this would appear to be congenital as review of x-rays from October also suggested she has a mild scoliosis. Presently, from the description I received regarding her accident, it would seem unlikely that she would have sufficient [sic] to cause a traumatic syrinx. In view of her mild scoliosis and syrinx, I suspect that these are both congenital in nature.(Def Ex K, p 5).
Based upon the foregoing, defendants argue there is no objective medical evidence that Aubrey suffers from either a cervical and/or thoracic spine injury or post-concussion syndrome.
The court finds that defendants have satisfied their initial burden of establishing Aubrey's absence of a serious injury as a matter of law under these two categories, thereby shifting the burden to Aubrey to demonstrate the existence of a triable issue of fact through competent medical evidence based on objective findings and diagnostic tests.
In opposition, Aubrey submits the affidavits of chiropractor Donna H. Rodriguez and chiropractor Denise V. Nicastro, D.C. Initially, as with Heather, the court agrees with defendants that Aubrey failed to disclose her treatment with Rodriquez and thus Rodriquez's affidavit should not be considered by the court (CPLR § 3214 [b]; 22 NYCRR § 202.17[b]).
With respect to the Nicastro affidavit, the court also agrees with defendants that portions of the Nicastro affidavit are based upon medical records that are not properly before the court (supra, pp 6-7). However, the court accepts those portions of the Nicastro affidavit based upon her actual treatment of Aubrey. Nicastro states that she observed muscle spasms and notes Aubrey was "deemed" totally disabled from gym class from September 28, 2016 through January 17, 2017 (Nicastro Aff, ¶ 6). Further, Nicastro lists specific decreased range of motion upon cervical flexion (30/50), extension (10/60), left rotation (20/80), right rotation (30/80), left lateral vending (15/45) and right lateral bending (20/45) (Nicastro Aff, ¶ 6). With respect to Aubrey's syrinx, Nicastro states she disagrees with Aubrey's neurologist Welles who opined that the syrinx was congenital in origin.
The court finds that Nicastro's affidavit fails to carry Aubrey's burden in opposition to raise a triable issue of fact on whether she has suffered a serious injury under either the significant limitation of use of a body function or system or permanent consequential limitation of use of a body organ or member categories (Durham, 2 AD3d 1113). Nicastro's disagreement with Welles regarding the origin of the syrinx does not create a triable issue of fact because Aubrey cannot use disagreement amongst her own physicians to create an issue of fact (Sarkis v Gandy, 15 AD3d 942 [4th Dept 2005]). Moreover, the court also finds Nicastro's range of motion deficits are not otherwise supported by objective medical proof of injury other than Aubrey's subjective reports of pain (Gillick v Knightes, 279 AD2d 752 [3d Dept 2001]), nor does she indicate how spasms were identified. Finally, Nicastro admits that she has last treated Aubrey over two years ago in January 2017 and candidly states "I cannot provide an opinion as to the patient's current status because I have not treated her in several years" (Nicastro Aff, ¶ 11). Given the more than two year lapse since Nicastro last treated Aubrey, the court finds that Nicastro's conclusions are not instructive on the issue of causation.
For all these reasons, the court finds defendants' motion for summary judgment dismissing Aubrey's claims of serious injury under the significant limitation of use of a body function or system and permanent consequential limitation of use of a body organ or member categories should be granted.
II. 90/180 DAY CATEGORY
The so-called 90/180 day category is defined as a "[m]edically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102 [d]). A successful claim under this category requires that the proof establish that the curtailment of plaintiff's usual and customary daily activities rise to the level of "[a] great extent rather than some slight curtailment" based upon objective medical findings (Licari, 57 NY2d at 236).
This accident occurred on June 9, 2016 which means the relevant 180 day period to a determination under this category is June 9, 2016 through December 6, 2016.
A. HEATHER
With respect to defendants' proof, the court notes that defendants' expert, Barbano, conducted his physical examination of Heather on September 17, 2018, well beyond the initial 180 day period after this accident. Thus, Barbano's IME report may not be considered as part of defendants' proof in support of their motion. However, defendants are entitled to rely on Heather's deposition testimony to meet their initial burden of establishing that Heather did not suffer a serious injury under this category as a matter of law (Boutsis v Reaves, 31 Misc3d 1238[A] [2011]).
Defendants' proof is focused on Heather's own deposition testimony wherein Heather conceded that she returned to work as a teaching assistant the day after the accident and remained at work for the limited time remaining of that school year, returned to teach a short portion of the summer session, then returned for three hour days in October through December (Def Ex F, pp 22 & 26). Defendants argue that Heather was not out of work for the requisite 90 days and, even if she was, there is no evidentiary proof indicating it was medically indicated.
Based upon the foregoing, the court finds defendants met their burden of proof on this category, thereby shifting the burden to Heather to demonstrate by way of competent medical evidence that she was medically prevented from performing substantially all of her usual and customary daily activities during the statutory time frame (Monk v Dupuis, 287 AD2d 187 [3d Dept 2001]).
With respect to Heather's proof in opposition, Heather submits her own two-page affidavit, as well as the previously referenced affidavits from a physician's assistant and two chiropractors. For the reasons stated earlier the Rodriguez affidavit will not be considered (supra, p 6), but in any event Rodriguez did not treat Heather until October 2018, well beyond the statutory period. Chiropractor Nicastro did not start treating Heather until September 12, 2016, which is 95 days after the accident. Thus, Nicastro could not mathematically address the minimum 90 days as required as she first saw Heather with only 85 days remaining in the statutory 180 day period. In any event, Nicastro does not state she ever ordered Heather out of work or on restricted activity.
The court finds only Mendelsohn treated Heather within the statutory time period at issue. With respect to Mendelsohn's submission on this category, Mendelsohn treated Heather on three occasions during the statutory 180 day period, namely August 3, 2016, September 7, 2016, and October 10, 2016. Generally, Mendelsohn states she diagnosed Heather with "concussion, post-concussion syndrome, and post-traumatic headache" and "recommended that [Heather] wait another month before returning to work" (Mendelsohn Aff, ¶ ¶ 6-7). Further while Mendelsohn acknowledges that Heather's MRI was negative for any abnormality, she relies upon a physical therapy session note stating there was a "cranial nerve injury" and a tongue deviation to support her disagreement with Barbano (Mendelsohn Aff, ¶ 16). Mendelsohn simply opines that these symptoms "could be" a marker for a concussion (Mendelsohn Aff, ¶ 16). The court finds this statement to be speculative and conclusory.
In further support of her position, Heather argues that she was limited in both her work and her household activities for the requisite period.
As to work, Heather testified in her deposition that she worked as a teaching assistant for the summer session of 2016 or "[a]bout a week into it, so I left early July. Then I went back to work for I think three-hour days or three and a half in October. Then I went out again in December. Then 1 went back for half days maybe the end of March or April" (Pl Ex F, p 22). Heather does not provide exact dates for her missed time from work, but October 10, 2016 is contained in the Mendelsohn affidavit as her return to work date. The court cannot calculate with certainty the number of days that Heather missed work between June 9, 2016 and December 6, 2016 as it is unclear whether she would have been scheduled to work in August which is typically a time off in schools. Quite simply, it was Heather's burden to demonstrate to the court the exact number of days she missed work, it is not for the court to guess at the calculations. As such, the court finds Heather has not demonstrated that she missed ninety days from work.
Heather testified in her deposition that it was either Renzi or her neurologist's assistant - not Mendelsohn - that told her to stay out of work (Pl Ex F, p 25, pp 28-29). The court has already noted that there is no supporting affidavit from Renzi, nor is there any supporting affidavit from the neurologist's office addressing Heather's time off work.
Heather also submits a two-page affidavit with a paragraph entitled "Things I can no longer do" with a list of various activities and hobbies that she no longer does (Heather's Aff, p 2). Heather testified in her deposition that she no longer volunteers in equine therapy, runs, kayaks, drives four-wheelers, tubing, or skiing (Pl Ex F, pp113-116). Overall, Heather testified she struggled initially to do many chores such as cooking and cleaning but with time her abilities improved (Pl Ex F, p 116).
The court finds that although Heather's records contain results of objective range of motion testing, Heather offers no proof by a medical expert comparing her pre-accident daily activity levels in relation to her post-accident daily activity levels during the relevant 180 day period (Bowen v Saratoga Springs City School Dist., 88 AD3d 1144, 1146 [3d Dept 2011]). Additionally, Heather has not submitted medical evidence that her missed work days and limitations, if any, on household and other activities were medically indicated or based on anything other than subjective complaints of pain (Nowak v Breen, 55 AD3d 1186 [3d Dept 2008]). Thus, the court finds that Heather has failed to meet her burden in opposition due to the lack of any medical support indicating that she was medically prevented from performing substantially all of her work duties, household chores and/or other activities during the statutory time frame (Nowak, 55 AD3d 1186).
In view of the foregoing, the court finds that defendants' motion for summary judgment dismissing Heather's 90/180 claim is granted.
B. AUBREY
With respect to defendants' proof, the court notes that defendants' expert, Heatwole, conducted his physical examination of Aubrey well beyond the initial 180 day period after this accident on September 28, 2018. Thus, Heatwole's IME report may not be considered as part of defendants' proof in support of their motion. However, defendants are entitled to rely on Aubrey's deposition testimony and medical records to meet their initial burden of establishing the absence of a serious injury by Aubrey as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (Boutsis, 31 Misc3d 1238[A]). Again, as with Heather, the court's focus is limited to the 180 day time period following this accident, namely June 9, 2016 through December 6, 2016.
Defendants rely on Aubrey's own deposition testimony to support their contention that her usual and customary daily activities were not substantially curtailed during the statutory period. More specifically, Aubrey testified that she was at the end of her high school junior year at the time of this accident and did not miss any school for the short time remaining in her junior year, nor did she miss any school in the fall at the start of her senior year. Aubrey testified that she was working at a clothing store at the time of the accident but could not identify the number of hours she worked per week and indicated she left that job because she did not enjoy it (Def Ex F, p 53). Aubrey testified that before this accident she was not involved in any extracurricular activities or sports teams. Aubrey admitted that none of her usual activities - school or extracurricular - were limited following this accident and she was never instructed by a physician to miss school or her part time job (Def Ex F, pp 54-56). That said, Aubrey did testify that her general physician, Renzi, told her to avoid physical activities from September until November 2016 in an attempt to isolate what, if any, activities were aggravating her hand so she avoided gym class and riding horses (Def Ex F, p 55).
Defendants argue that missing gym class and an inability to ride horses does not amount to a curtailment of substantially all of her daily activities. The court agrees and finds defendants have met their burden of proof on this category, thereby shifting the burden to Aubrey to demonstrate by way of competent medical evidence that she was medically prevented from performing substantially all of her usual and customary daily activities during the statutory time frame (Monk, 287 AD2d 187).
In opposition, Aubrey's opposition on this category is limited, stating only that she was told to avoid "gym class, riding, everything really" due to back pain (Def Ex F, pp 55-56). Aubrey has elected not to submit an affidavit in opposition.
Even accepting Aubrey's deposition testimony at face value that she was restricted from the listed physical activities during the requisite time period, the record fails to show that such restrictions curtailed substantially all of her usual and customary activities to a great extent and were medically indicated or based upon objective medical findings (Rennell v Horan, 225 AD2d 939, 940 [3d Dept 1996]). In view of the foregoing, the court finds Aubrey has failed to meet her burden in opposition by way of competent medical evidence in raising questions of fact as to whether she was medically prevented from performing substantially all of her usual and customary daily activities during the statutory time frame (Nowak, 55 AD3d 1186).
Defendants' motion for summary judgment dismissing Aubrey's claim based upon the 90/180 category must be granted.
CONCLUSION
In view of the foregoing:
1. With respect to Heather Kraus, defendants' motion for summary judgment dismissing the complaint regarding the significant limitation of use of a body function or system and permanent consequential limitation of use of a body organ or member categories and/or causation is DENIED; and
2. With respect to Aubrey Kraus, defendants' motion for summary judgment dismissing the complaint regarding the significant limitation of use of a body function or system and permanent consequential limitation of use of a body organ or member categories and/or causation is GRANTED;
3. With respect to Heather Kraus, defendants' motion for summary judgment dismissing the 90/180 day category is GRANTED; and
4. With respect to Aubrey Kraus, defendants' motion for summary judgment dismissing the 90/180 day category is GRANTED.
It is so ordered. Dated: February 19, 2020
Binghamton, New York
/s/_________
Hon. Oliver N. Blaise, III
Justice, Supreme Court
All papers submitted in connection with this Decision and Order including all prior pleadings are on file with the Chemung County Clerk's Office: Plaintiff Heather Kraus:
Defendants' Notice of Motion dated April 24, 2019;
Affidavit of Matthew A. Lenhard, Esq. sworn to April 24, 2019 with exhibits A-L;
Memorandum of Law in Support dated April 24, 2019;
Reply Affidavit of Matthew A. Lenhard, Esq. sworn to November 19, 2019 with exhibits M-O;
Matthew J. Kaiser, Esq. Attorney Affidavit in Opposition RE: Heather Kraus sworn to September 20, 2019 with exhibits;
Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment dated September 20, 2019;
Affidavit of P.A. Erica Mendelsohn sworn to September 19, 2019, with exhibits;
Affidavit of Denise V. Nicastro, D.C. sworn to September 19, 2019, with exhibits; and
Affidavit of Donna H. Rodriguez, D.C. sworn to September 19, 2019, with exhibits. Plaintiff Aubrey Kraus:
Defendants' Notice of Motion dated April 15, 2019;
Affidavit of Matthew A. Lenhard, Esq. sworn to April 15, 2019 with exhibits A-L;
Memorandum of Law in Support dated April 15, 2019;
Matthew J. Kaiser, Esq. Attorney Affidavit in Opposition RE: Aubrey Kraus sworn to September 20, 2019 with exhibits;
Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment dated September 20, 2019;
Affidavit of Denise V. Nicastro, D.C. sworn to September 19, 2019, with exhibits;
Affidavit of Donna H. Rodriguez, D.C. sworn to September 19, 2019, with exhibits; and
Reply Affidavit of Matthew A. Lenhard, Esq. sworn to November 19, 2019 with exhibits.