Uber v. Heffron

13 Citing cases

  1. Jones v. Port Imperial Ferry Corp.

    2005 N.Y. Slip Op. 50411 (N.Y. App. Term 2005)

    After a brief course of physical therapy in late 1999 (more than a year after the accident), plaintiff had no further examination or treatment until 2003, when the instant motion for summary judgment was made ( see Toulson v. Pai, 13 AD3d 317). Given the lack of contemporaneous evidence of serious injury, the four year gap in treatment, and the affirming doctor's failure to adequately address the possible significance of a December 1998 fall in which plaintiff fractured three ribs, the complaint should have been dismissed ( see Shinn v. Catanzaro, 1 AD3d 195; Uber v. Heffron, 286 AD2d 729). This constitutes the decision and order of the court.

  2. Weller v. Munson

    309 A.D.2d 1098 (N.Y. App. Div. 2003)   Cited 7 times

    She relies primarily upon the affidavits of three doctors, Lohr, James Johnsen and Joseph White. Initially, we note that, under established precedent, these affidavits suffer substantial deficiencies since Lohr had not treated plaintiff for over three years when he executed his affidavit (see Trotter v. Hart, 285 A.D.2d 772, 773) and neither Johnsen nor White — both of whom commenced treatment of plaintiff well after the second accident — expressed any knowledge of that second accident in their short affidavits (see McCreesh v. Hoehn, 307 A.D.2d 638, 638-639; Uber v. Heffron, 286 A.D.2d 729, 730).

  3. Franchini v. Palmieri

    307 A.D.2d 1056 (N.Y. App. Div. 2003)   Cited 40 times
    Affirming summary judgment for the defendant and finding plaintiff's evidence insufficient because "[e]ven if [the chiropractor] were aware of [plaintiff's pre-existing conditions], he failed to explain his opinion that the pre-existing conditions had resolved before he began treating plaintiff or to cite any objective evidence to support that opinion."

    As a result, plaintiff's records fail to show that the symptoms she reported after February 4, 1998 were caused by the accident rather than some preexisting condition. Moreover, the lack of a causal link between plaintiff's injuries and the accident was established by the reports of a physician and a psychologist who examined her in 1999 and opined that her symptoms had other causes (see Best v. Bleau, 300 A.D.2d 858, 859; Hassam v. Rock, 290 A.D.2d 625, 625; Uber v. Heffron, 286 A.D.2d 729, 730). Thus, defendant's submissions make a prima facie showing of entitlement to summary judgment.

  4. McCreesh v. Hoehn

    307 A.D.2d 638 (N.Y. App. Div. 2003)   Cited 11 times
    Affirming a grant of summary judgment to the defendant where, inter alia, a chiropractor's opinion that the "plaintiff suffered a 50% 'permanent degree of loss of use and function in his cervical spine'" was "unsupported by any mention of the objective tests performed or their objective results utilized in diagnosing Plaintiff's condition"

    mention of the objective tests performed or their objective results utilized in diagnosing plaintiff's condition (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 357; Barbarulo v. Allery, 271 A.D.2d 897, 899). The objective tests reported in the medical records, such as the MRIs and X rays taken immediately after the accident and in February 2001, indicate no injury. Although the chiropractor states that he found trigger points and muscle spasms that were "consistent with [plaintiff's] subjective complaints," he does not explain how the claimed 50% loss of range of motion of plaintiff's cervical spine is supported by these or any other objective findings (see Temple v. Doherty, 301 A.D.2d 979, 981-982; Blanchard v. Wilcox, 283 A.D.2d 821, 822). Plaintiff's submissions are also deficient in failing to distinguish the neck spasms plaintiff suffered before and after the accident, as well as any injuries sustained in the subsequent accident in 1999 (see Pajda v. Pedone, 303 A.D.2d 729; Uber v. Heffron, 286 A.D.2d 729, 730). The absence of objective findings and the chiropractor's conclusory statement causally connecting plaintiff's injuries to the 1998 accident are insufficient to establish a serious injury under any category of Insurance Law § 5102(d), including the 90/180-day category (see Serrano v. Canton, 299 A.D.2d 703, 705; Blanchard v. Wilcox, supra at 824).

  5. Saez v. Dhundup

    2021 N.Y. Slip Op. 33952 (N.Y. Sup. Ct. 2021)

    (Uber v Heffron, 286 A.D.2d 729 [2d Dept. 2001]; Medina v Zalman Reis, 239 A.D.2d 394 [2d Dept. 1997]). As such, Plaintiff has failed to raise a triable issue of fact with respect to Defendant's claim that he did not sustain a significant limitation and/or a permanent consequential injury as a result of this accident.

  6. Dickerson v. MV Transp., Inc.

    2018 N.Y. Slip Op. 32422 (N.Y. Sup. Ct. 2018)

    While it is true that Dr. Kolesnikov opined that the plaintiff was suffering from disc bulges and disc herniations at C4-5 and C5-6 and a disc herniation at L4-5 nerve root with possible nerve root impingement, it is settled law that evidence of a disc herniation alone does not constitute proof of a serious injury (see, Descovich v. Blieka, 279 A.D.2d 499, 718 N.Y.S.2d 870; Uber v. Heffron, 286 A.D.2d 729, 730, 730 N.Y.S.2d 174), 175). Finally, the plaintiff failed to explain the almost two year gap in treatment from July 25, 2016 to , when she last saw Dr. Gair prior to May 24, 2018 (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278; Garcia v. Lopez, 59 A.D.3d 593, 872 N.Y.S.2d 719; Rivera v. Bushwick Ridgewood Properties, Inc., 63 A.D.3d 712, 714, 880 N.Y.S.2d 149, 151).

  7. Adimola v. County of Suffolk

    2007 N.Y. Slip Op. 34097 (N.Y. Sup. Ct. 2007)

    The case law requires objective proof of both the pain and the limitation of movement. Proof of a disc herniation alone without objective proof of limitation of movement is insufficient to meet the threshold ( Uber v. Heffron, 286 A.D.2d 729, 730 N.Y.S.2d 174; Descovich v. Blieka, 279 A.D.2d 499, 718 N.Y.S.2d 870); as is a doctor's observations of pain accompanying by reduced flexion unless accompanied by objective proof such as x-rays, MRIs, straight-leg or Laseque tests, and any other similarly recognized tests or quantitative results based on a neurological examination ( Grossman v. Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233).

  8. Fairchild v. Mongiello

    2007 N.Y. Slip Op. 32385 (N.Y. Sup. Ct. 2007)

    On occasions when the pain is not exacerbated, the physical therapy will be only palliative in nature." Although it has consistently been held that failure to explain an extended gap between the termination of the plaintiff's initial treatment and his present course of treatment, renders the medical proof insufficient to establish a serious injury ( Uber v. Heffron, 286 A.D.2d 729, 730 N.Y.S.2d 174 [2nd Dept. 2001]; Medina v. Zalman Reis, 239 A.D.2d 394, 658 N.Y.S.2d 37 [2nd Dept. 1997]) an explanation that the conservative treatment being rendered is proper during times of exacerbated pain and palliative during other time periods adequately explains such treatment gap. ( Brown v. Achy, 9 A.D.3d 30, 776 N.Y.S.2d 56 [1st Dept 2004])

  9. Adimola v. County of Suffolk

    2007 N.Y. Slip Op. 31590 (N.Y. Sup. Ct. 2007)

    The case law requires objective proof of both the pain and the limitation of movement. Proof of a disc herniation alone without objective proof of limitation of movement is insufficient to meet the threshold ( Uber v. Heffron, 286 A.D.2d 729, 730 N.Y.S.2d 174; Descovich v. Blieka, 279 A.D.2d 499, 718 N.Y.S.2d 870); as are a doctor's observations of pain accompanied by reduced flexion unless accompanied by objective proof such as x-rays, MRIs, straight-leg or Laseque tests, and any other similarly recognized tests or quantitative results based on a neurological examination ( Grossman v. Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233). Furthermore, even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury, such as a gap in treatment, an intervening medical problem or a preexisting condition, summary dismissal of the complaint may be appropriate ( Pommells v. Perez 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278).

  10. Arquer v. Chasing Osprays, Inc.

    2007 N.Y. Slip Op. 31305 (N.Y. Sup. Ct. 2007)

    The case law requires objective proof of both the pain and the limitation of movement. Proof of a disc herniation alone without objective proof of limitation of movement is insufficient to meet the threshold (Uber v. Heffron, 286 A.D.2d 729, 730 N.Y.S.2d 174; Descovich v. Blieka, 279 A.D.2d 499, 718 N.Y.S.2d 870); as is a doctor's observations of pain accompanying by reduced flexion unless accompanied by objective proof such as x-rays, MRIs, straight-leg or Laseque tests, and any other similarly recognized tests or quantitative results based on a neurological examination (Grossman v. Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233).