Opinion
No. 2011–1508.
2012-12-5
Danielle McNEIL, Plaintiff, v. Harlow HOCKEY and Memory Hockey, Defendants.
Poissant, Nichols, Grue & Vanier, P.C., Malone (Stephen A. Vanier of counsel), for plaintiff. Horigan, Horigan & Lombardo, P.C., Amsterdam (Joseph D. Giannetti of counsel), for defendants.
Poissant, Nichols, Grue & Vanier, P.C., Malone (Stephen A. Vanier of counsel), for plaintiff. Horigan, Horigan & Lombardo, P.C., Amsterdam (Joseph D. Giannetti of counsel), for defendants.
ROBERT J. MULLER, J.
The plaintiff, by Notice of Motion dated August 17, 2012, is a passenger in a vehicle owned and operated by her parents-neither of whom are parties to this litigation, who seeks partial summary judgment on the issue of the defendants' liability. In the absence of any opposition, such relief is granted.
The defendants, however, by Notice of Cross Motion dated September 21, 2012 seek a different category of relief and thus this Court is called upon, yet again, to embrace the Sisyphean challenge of whether a plaintiff's evidence of personal injury meets the statutory threshold set by Insurance Law § 5102(d), “an elusive standard that all too frequently escapes facile and final resolution” (Brown v. Achy, 9 AD3d 30, 31, 776 N.Y.S.2d 56 [2004] ).
The action arises out of a rear-end motor vehicle accident which occurred on November 2, 2008 on I–81 in the Town of Watertown, Jefferson County, N.Y. when a vehicle owned by defendant, Memory Hockey, and operated by her now deceased husband, Harlow Hockey, collided with the rear of a vehicle in which the plaintiff was a passenger. Plaintiff's near standard formulation of a Bill of Particulars claims shock, right flank pain, right knee abrasions, right knee pain, right knee sprain, left tibia/fibula bruising, left tibia/fibula discoloration, syncope, dizziness, nausea, headaches, anxiety, bradycardia, and post-traumatic stress disorder. Plaintiff also claims to have sustained a “serious injury” as defined by sub-division (d) of § 5102 of the Insurance Law with a significant limitation of use of her leg and part of her musculoskeletal system as well as a significant limitation of use of her central nervous system and her cardiology system. Lastly, the plaintiff makes a “zone of danger” claim, describing having witnessed certain injuries to her parents.
The evidence submitted by defendants established that, following the accident, plaintiff's first post-accident treatment at Samaritan Medical Center in Watertown demonstrated that within hours after the accident there were no physical complaints, no complaints of pain and a negative left knee examination. Four days post accident plaintiff was seen by her primary care physician following which her physical examination is described as entirely normal. At eleven days post accident another physical exam was normal-although by the end of December plaintiff reported “passing out” which led to a brain CT scan that was also normal. Between November 6, 2008 and December 22, 2008 plaintiff was also examined at Champlain Valley Physicians Hospital having complained of lower back pain but denying cervical or thoracic pain. Her examination was again negative. X-rays of her lower back and pelvis were taken and were also negative and she was noted to have full range of motion-diagnosed with lower back strain, contusions, and discharged. All lab tests results were normal as was an EKG and chest x-ray.
In March of 2009 plaintiff consulted with a neurologist at Vermont's Fletcher Allen Healthcare reporting episodes of fainting but including a history of these episodes extending three (3) years prior to this accident. The working diagnosis was vasovagal syncopal episodes which were monitored by further normal EEGs. Lastly, in June of 2009, plaintiff underwent two one-hour sessions of psychotherapy purportedly because of trauma from the November 2, 2008 accident.
Upon this summary judgment motion defendants carry the burden of demonstrating, through the submission of competent medical evidence, that plaintiff did not sustain a serious injury within the parameters of Insurance Law § 5102(d) (see Womack v. Wilhelm, 96 AD3d 1308, 1309 [2012];Larrabee v. Bradshaw, 96 AD3d 1257, 1258 [2012] ).
Defendants reliance upon the records of plaintiff's healthcare providers including her primary physician strongly meet and satisfy their initial burden of demonstrating that plaintiff did not suffer a significant limitation of use of her leg, any part of her musculoskeletal system nor has she suffered a significant limitation of use of her central nervous system or her cardiology system (see Flottemesch v. Contreras et al. 2012 WL 5869621 (N.Y.A.D. 3 Dept. [November 21, 2012], Womack v. Wilhelm, 96 AD3d at 1310;Clark v. Basco, 83 AD3d 1136, 1138 [2011] ). Defendants, however, do not meet that burden concerning the claimed psychic injuries as are discussed hereinafter.
With respect to plaintiff's first cause of action—only—this evidence is sufficient to shift the burden to plaintiff to present “competent medical evidence based upon objective medical findings and tests to support [her] claim of serious injury and to connect the condition to the accident” (Wolff v. Schweitzer, 56 AD3d 859, 861, 866 N.Y.S.2d 833 [2008], quoting Blanchard v. Wilcox, 283 A.D.2d 821, 822, 725 N.Y.S.2d 433 [2001]; accord Vargas v. Tomorrow Travel & Tour, Inc., 74 AD3d 1626, 1627, 904 N.Y.S.2d 248 [2010]; see Nowak v. Breen, 55 AD3d 1186, 1187, 866 N.Y.S.2d 423 [2008] ).
Accordingly, to withstand the defendants' motion under the significant limitation of use categories, “the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system' “ (Dean v. Brown, 67 AD3d 1097, 1098, 891 N .Y.S.2d 165 [2009], quoting John v. Engel, 2 AD3d 1027, 1029, 768 N.Y.S.2d 527 [2003]; see Hildenbrand v. Chin, 52 AD3d 1164, 1165, 861 N.Y.S.2d 438 [2008] ).
To this end, plaintiff proffers an affidavit from her attorney which attaches the plaintiff's deposition transcript. Plaintiff does not submit an affidavit from any medical expert, instead presumably relying, as have defendants, on her own medical records, reports from her treatment providers and her own testimony. While it is self-evident that on such a motion all reasonable inferences must be resolved in favor of the non-movant, this cannot be accomplished in the absence of some fact upon which the inference may be premised. A serious physical injury has two elements: trauma—and the limitations that result from that trauma. Conspicuously absent is any “competent medical evidence based upon objective medical findings of a quantitative assessment of plaintiff's loss of function ... supported by any objective medical evidence.” (see Wolff ). Accordingly, plaintiff's first cause of action cannot stand.
The only aspect of the plaintiff's claims—zone of danger—in which there is any question of fact sufficiently identified is within the psychotherapeutic treatment summary of Terrianne Yanulavich, LMHC which diagnoses a post traumatic stress disorder causally related to this accident. Where defendant's conduct is negligent—creating an unreasonable risk of bodily harm to the plaintiff—and such conduct is a substantial factor in bringing about injuries to plaintiff in consequence of shock or fright resulting from their contemporaneous observation of serious physical injury or death inflicted by defendant's conduct on a member of plaintiff's immediate family in their presence, plaintiff may recover damages for such injuries. See Bovsun v. Sanperi, 61 N.Y.2d 219, 461 N.E.2d 843 NY,1984. Within the narrow context of this motion, such psychic damages—on the medical evidence presented-cannot be rejected as a matter of law—specifically as plaintiff is entitled to every reasonable inference contained within this psychotherapeutic treatment record.
The Court having analyzed Tarolli v. Rossotti, 141 Misc.2d 107 declines to follow it as that lower court record was infinitely more distinguishable than this; the most contrasting aspect being the Tarolli plaintiff's testimony that she never sought or received any professional counseling, medical treatment, or medication for her alleged psychic injuries. Were this record as similarly devoid of any medical proof the conclusions now reached here would have been quite different.
It must be observed, however, that in order for this plaintiff to prevail at trial-in the absence of proven physical injury-she must still offer substantial and highly probative evidence of a proximate causal link between the violation of a duty and the psychic injury that she invokes. See generally Battalla, 10 N.Y.2d at 242, 219 N .Y.S.2d at 38, 176 N.E.2d 729;Chance v. Frank's Beauty Salon, 35 A.D.2d 304, 305, 316 N.Y.S.2d 236, 238 (3d Dep't 1970). See also Iannotti v. City of Amsterdam, 225 A.D.2d 990, 990–91, 639 N.Y.S.2d 537, 538 (3d Dep't 1996). At this summary judgment stage, however, plaintiff's second independent cause of action must remain.
Accordingly, and based upon the foregoing it is therefore
ORDERED that plaintiff's motion for partial summary judgment on liability is granted and, it is further
ORDERED that the defendants' motion for summary judgment on the first cause of action based upon the absence of a “serious injury” within the meaning of Insurance Law § 5102(d) is granted and, it is further
ORDERED that the defendants' motion for summary judgment on the second cause of action (zone of danger) is denied and, it is further
ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order is returned to counsel for plaintiff for filing and service with notice of entry. The Notice of Motion dated August 17, 2012 and the Notice of Cross Motion dated September 21, 2012 have been filed by the Court together with the referenced submissions.
Papers Considered:
1. Notice of Motion dated August 17, 2012;
2. Affidavit of Stephen A. Vanier, Esq. sworn to August 17, 2012 with Exhibits A–F attached thereto;
3. Notice of Cross Motion dated September 21, 2012;
4. Attorney Affirmation of Joseph D. Giannetti, Esq. dated September 21, 2012 with Exhibits 1–6 attached thereto;
5. Responding Affidavit of Stephen A. Vanier, Esq. sworn to October 12, 2012 with Exhibit A attached thereto and
6. Reply Affidavit of Joseph D. Giannetti, Esq. sworn to October 12, 2012.