New York State Court of Claims

New York State Court of Claims

SNEAD v. THE STATE OF NEW YORK, #2004-031-020, Claim No. 100621, Motion Nos. M-66597, CM-66756


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 12, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 9, were read on motion by Defendant for summary judgment and cross-motion by Claimant for partial summary judgment:
  1. Defendant's Notice of Motion (M-66597), filed March 27, 2003;
  2. Affirmation of James L. Gelormini, Esq., dated March 21, 2003, with attached exhibits;
3) Affirmation of John R. Devanny, M.D., dated March 9, 2003:
4) Claimant's Notice of Cross-Motion (CM-66756), filed May 2, 2003;
5) Affidavit of Charles F. Crimi Jr., Esq., sworn to April 30, 2003, with attached exhibits;
6) Claimant's Memorandum of Law, dated April 30, 2003;
7) Reply Affirmation of James L. Gelormini, Esq., dated May 13, 2003;
  1. Defendant's Reply Memorandum of Law, dated May 13, 2003;
9) Filed Documents: Claim, Verified Answer. Upon the foregoing papers, and upon oral argument from counsel in this matter, Defendant's motion is granted.

Claimant, Donald Snead, alleges that he was injured in a motor vehicle accident while being transported in a Department of Correctional Services (DOCS) van on July 23, 1997. In his claim, filed on June 28, 1999, Claimant alleges that the accident occurred in Attica, New York as the van passed under a single lane covered bridge. At the time, Claimant, along with several other inmates, had been assigned to an inmate work crew, and was being transported to work on the restoration of a local church. According to Claimant, as the van passed under the Prospect Street Bridge, it struck a steel "I-beam" which was suspended from the roof of the bridge by chains. Claimant alleges that the driver of the van, a DOCS employee, was negligent when he drove the vehicle under a bridge that did not afford clearance for the van to pass safely through.

Although both parties agree that the van came in contact with the suspended I-beam as it passed through the bridge and that the van did not come to a halt after the impact, but rather continued on through the bridge (and under a second suspended I-beam), the parties disagree as to how fast the van was traveling at the time, and the severity of the van's impact with the I-beam. The Claimant alleges that the impact was quite pronounced and it caused the van to lurch to the right, bringing the wheels on the left, or driver's side of the van, completely off the ground. Claimant asserts that he feared the van would roll off the bridge and into the creek below. Claimant further alleges that the impact caused him to be thrown about the interior of the van and sustain injuries to his neck and back.

Defendant maintains that the impact occurred at a speed of approximately 10 miles per hour and that the impact was little more than a scraping of the beam against the uppermost part of the van. According to the driver of the van, no jolt from the impact was perceived inside the van and only minimal damage to the van was incurred.
In its motion papers, Defendant concedes that the incident occurred, but asserts that the State may not be held liable for Claimant's injuries because: 1) Claimant did not sustain a serious injury as defined by Section 5102 of the Insurance Law; and 2) Defendant is not liable for negligence, but only liable for "reckless disregard" as defined in Vehicle and Traffic Law § 1104.
Claimant argues that he is entitled to summary judgment on the issues of serious injury and causation, claiming that Defendant's own medical expert has conceded these points.
In support of its motion for summary judgment, Defendant has submitted the affidavit of Dr. John R. Devanny, who examined the Claimant on December 19, 2002. According to Dr. Devanny, Claimant has not suffered a serious injury as defined by § 5102 of the Insurance Law. Dr. Devanny found that Claimant had no limitations on his range of motion and suffered no neurological deficit (Devanny Affirmation, ex.2, p 4 and 5). Dr. Devanny further determined that neither the radiology reports from Claimant's various imaging studies, nor Claimant's medical records, contained any objective evidence of injury (Devanny Affirmation, ex. 2, p 4 and 5). Although he admitted that Claimant may have suffered "a very mild strain" of his lower back, which resulted in his diagnosis of "Chronic lumbar strain," Dr. Devanny indicated that Claimant's overall condition had improved over the preceding two or three years (Devanny Affirmation, ex.2, p 3). Dr. Devanny opined that "Mr. Snead has no objective positive physical findings to substantiate a serious degree of low back injury" (Devanny Affirmation, ex. 2, p 5). Dr. Devanny then concluded that "it is my opinion to a reasonable degree of medical certainty that as a result of the July 23, 1997 motor vehicle accident, Mr. Snead did not sustain any of the injuries listed in paragraph 6 above" (Devanny Affirmation, ¶ 8). Paragraph six, mentioned in this quote, referred to the three categories of serious injury contained in the No-Fault Law.

In response to this, Claimant argues that, his other statements aside, Dr. Devanny himself found that Claimant had a permanent partial disability that was causally related to the incident and, on this basis alone, summary judgment in Defendant's favor must be denied. Claimant also submitted a letter from his expert, Dr. Austin R. Leve, which he argues demonstrates that a question of fact exists as to whether or not he sustained serious injury. Like Dr. Devanny, Dr. Leve found that Claimant suffered no neurological deficit. Dr. Leve also does not identify any radiological study documenting Claimant's alleged injuries.

Dr. Leve did address Claimant's objective complaints of pain. His affirmation states that Claimant complained of pain when "[h]e bent forward to reach just below his mid legs with his fingertips." He follows this statement with the assertion that, "There was a good range of motion of his back in the other planes" (Leve affirmation p 2). Though not stated specifically, it could be inferred that Dr. Leve meant that Claimant suffers from some loss of range of motion when attempting to bend forward. If so, however, Dr. Leve does not quantify any such loss. Dr. Leve indicates that he "reassured [Claimant] and advised [him] to continue with activity as tolerated and conservative measures" (Leve affirmation p 3). Under the section of his affirmation labeled "Impression," Dr. Leve states that Claimant "sustained an acute strain of the muscles and ligaments of the cervical and lumbosacral spine . . ."(Leve affirmation p 4). Dr. Leve gives no specific medical opinion of Claimant's condition but states: "In view of the duration of his symptoms, he is considered to have some permanent partial disability at the level of his back such that he should be restricted from work or activity, which involves repeated bending, heavy lifting, carrying, pushing, pulling, twisting, and otherwise strenuous use of his back." (Leve affirmation p 4).

In its reply to Claimant's papers, Defendant argues that Dr. Leve's affirmation failed to raise a question of fact with regard to whether Claimant suffered a serious injury as defined by § 5102 of the Insurance Law. Meanwhile, Claimant argues that Defendant's expert, Dr. Devanny, conceded that Claimant's injuries were permanent and proximately caused by the accident and, therefore, Defendant has failed to sustain its initial burden of demonstrating a lack of serious injury. I find that Defendant has sustained this burden and that Claimant has failed to rebut this showing with any proof of objective medical evidence from which it could be determined that Claimant suffered a serious injury.

In its motion for summary judgment, Defendant has the initial burden of demonstrating that Claimant's alleged injuries did not meet the serious injury threshold as defined by Insurance Law §5102(d) (see e.g. Gaddy v Eyler, 79 NY2d 955, 957-958). Contrary to Claimant's assertions, Dr. Devanny found that claimant's injuries were "non-permanent" and he did not find a causal relationship between the alleged injuries and the accident (Devanny Affirmation, ex. 2, p 5) I find that Defendant has met this burden through the affirmation of Dr. Devanny, who opines that there is no objective medical evidence demonstrating that Claimant has an injury, but that, at most, Claimant has sustained a "very mild strain."

Once this burden is met, however, Claimant may defeat the motion by establishing, with competent medical evidence, that he has, in fact, sustained such an injury under the No-Fault Law ( Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345; John v Engel, 2 AD3d 1027). However, an expert medical witness must establish the degree of the injuries and causation to a reasonable level of medical certainty (Dumas v Valley View House, Inc., 235 AD2d 767). Defendant accurately points out that Claimant's expert, Dr. Leve, did not assert an opinion with a reasonable degree of medical certainty that Claimant suffered a serious injury. Dr. Leve merely stated that, based upon Claimant's symptoms (which consist entirely of subjective complaints of pain), "he is considered to have some permanent partial disability." Dr. Leve does not specifically state that this is his medical opinion, nor, if one can infer that it is his opinion, does he indicate that it is held with any level of medical certainty (see Gross v Friedman, 138 AD2d 571, affirmed, 73 NY2d 721).

More importantly, Dr. Leve points to no objective basis for this opinion. To demonstrate a serious injury, claimant cannot rely only on subjective complaints of pain (Toure v Avis Rent A Car Sys., Inc., supra, at 350; Gaddy v Eyler, supra, at 957-58). Defendant's expert affirmed specifically that there is no objective medical evidence to establish Claimant's alleged injuries and that Claimant has complete range of motion. Dr. Leve's affirmed report does not dispute these assertions, nor does it identify any objective medical evidence upon which Dr. Leve's conclusions are based. Further, Dr. Leve's affirmation fails to set forth "a comparative determination of the degree or qualitative nature of [Claimant's] injury based on the normal function, purpose and use of the body part" (Dufel v Green, 84 NY2d 795, 798). Finally, neither expert opined that Claimant's injuries consisted of more than a strain of his lower back. Generally, such injuries do not rise to the level of a serious injury as a matter of law (see Keena v Trappen, 294 AD2d 405; Puccio v Pazienza, 289 AD2d 316).

For these reasons, I find that Claimant has failed to demonstrate the existence of a serious injury as defined by Insurance Law § 5102(d) and the claim in this matter must be dismissed on this basis. In light of this fact, it is not necessary to reach the merits of the parties respective positions on whether or not the "reckless disregard" standard of Vehicle and Traffic Law § 1104(e) is applicable to this claim. Claimant's cross-motion must be denied as moot.

Based upon the foregoing it is:

ORDERED, that Defendant's motion for summary judgment is granted and the claim is dismissed. Claimant's cross-motion for partial summary judgment is denied. The Clerk is directed to close the file.

April 12, 2004
Rochester, New York

Judge of the Court of Claims