Opinion
07-0437.
Decided April 21, 2011.
Rupp, Baase, Pfalzcraf, Cunningham Coppola LLC, Alison M. K. Lee, Esq., of Counsel, Attorneys for Defendants-movants.
Damon Morey LLP, Steven M. Zweig, of Counsel, Attorneys for Plaintiffs-cross-movants.
Defendants move to dismiss the plaintiffs' complaint, arguing that neither of the plaintiffs suffered "serious injury" under Insurance Law section 5102(d) as a result of the motor vehicle accident in which the defendant Diione K Fox-Murch rear ended the plaintiffs' car, stopped at a stop light, on September 20, 2004. The plaintiffs in their bill of particulars alleged that as a result of the accident they both suffered permanent loss of use of a shoulder and skeletal system and that their injuries prevented them from performing substantially all of the material acts which constitute their usual and customary daily activities for at least 90 days of the first 180 days following the accident.
The plaintiffs seek, by cross-motion, to add to their bill of particulars allegations that they both suffered a permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system.
Preliminarily, the court rejects the plaintiffs' argument that lack of "serious injury" must be asserted in the defendant's answer to be successful on a summary judgment motion. The cases cited by the plaintiff in this regard [ Lopez v Beltre , 59 AD3d 683 (2nd Dept 2009); McHugh v Marfoglia , 65 AD3d 828 (4th Dept 2009] do not support this argument.
Although the note of issue was filed by the plaintiff, no trial has yet been scheduled, and so the court concludes that an amendment of the bill of particulars as proposed by the plaintiffs would not prejudice the defendants, since there is time for the defendants to prepare for trial to answer these new allegations. Further, the discovery and pleadings to date have given the defendants ample opportunity to explore the alleged injuries of the plaintiffs. It is noted as well that for both plaintiffs, the only alleged serious injuries sustained as a result of the accident were to the left shoulder of Mr. Scott and the right shoulder of Mrs. Scott, and the medical proof regarding each plaintiff's shoulder has been well developed as a result of the discovery to date. No surprise results to the defendants by adding these two new theories of liability.
Although the plaintiffs asserted other injuries in their pleadings, at the argument of the motion plaintiffs' counsel conceded that only the shoulder injuries were alleged to be serious injuries. Their treating orthopedic surgeon only addressed the shoulder injuries in his affidavit on the motion.
Therefore, the plaintiffs cross-motion to amend the Bill of Particulars is granted, but the plaintiffs pleadings as amended are dismissed for the reasons stated below.
Even with these new theories of liability, the plaintiffs are unable to withstand the defendants' summary judgment motion. The defendants have met their prima facie burden of showing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law section 5102(d) as a result of the subject accident.
The plaintiff's submissions were insufficient to raise a triable issue of fact as to whether they sustained a serious injury under any of the four theories asserted. The allegation of permanent loss of use of a shoulder and skeletal system fails for both plaintiffs because they have failed to show a total loss of use of the shoulder. Oberly v Bangs Ambulance Inc., 96 NY2d 295 (2001).
The allegation that their injuries prevented them from performing substantially all of the material acts which constitute their usual and customary daily activities for at least 90 days of the first 180 days following the accident also fails because the plaintiffs' own testimony belies this claim. Mrs. Scott admitted that she went back to work, without restriction less than 90 days after the accident. Mr. Scott described activities he performed around the house soon after the accident which were the same as those he performed before the accident. Neither plaintiff's claim was substantiated by competent medical evidence. Uddin v Cooper , 32 AD3d 270 , 272, (1st Dept 2006).
The two new "serious injury" claims (significant limitation of use and/or permanent consequential limitation of use) fail because the affirmation of Dr. Hussain, plaintiffs' treating orthopedic surgeon, in response to the summary judgment motion fails to mention any treatment or examination of the plaintiffs since March, 2007 as regards Mr. Scott and January, 2007 as regards Mrs. Scott. Kin Chong Ku v Baldwin-Bell , 61 AD3d 938 , (2nd Dept 2009). "While a cessation of treatment is not dispositive — the law surely does not require a record of needless treatment in order to survive summary judgment — a plaintiff who terminates therapeutic measures following the accident, while claiming `serious injury' must offer some reasonable explanation for having done so." Pommells v Perez , 4 NY3d 566 , 574 (2005). Here, Dr. Hussain's affirmation regarding Mr. Scott concludes that Mr. Scott's pain and significant limitations regarding his shoulder and arm can be expected to continue on a permanent basis, and that he referred Mr. Scott to a pain management specialist, having released him to work on March 10, 2007. But, unlike plaintiff's doctor in Brown v Dunlap ( Pommells v Perez, at 577), Dr. Hussain did not opine that no other treatment of Mr. Scott would be helpful, in order to explain the gap in treatment from 2007 to the present date. The same is true in Dr. Hussain's affirmation concerning Mrs. Scott.
Based on the foregoing the defendants' motion for summary judgment, dismissing the action is granted. The County Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
The foregoing constitutes the Opinion, Decision and Judgment of this Court.
SO ORDERED.