New York State Court of Claims

New York State Court of Claims

GREENO v. THE STATE OF NEW YORK, #2004-032-076, Claim No. 104514, Motion No. M-67288


Synopsis


Summary judgment dismissing the claim is granted because claimants, who were injured in an automobile accident with a State vehicle, failed to establish that they suffered a "serious injury" (Insurance Law §5102[d]) and they failed to prove that there was a question of fact as to whether their injuries constituted a "significant limitation of use of a body function or system."


Case Information

UID:
2004-032-076
Claimant(s):
MARIETA J. GREENO and GERALD E. GREENO
Claimant short name:
GREENO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104514
Motion number(s):
M-67288
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Law Office of Vaughn N. Aldrich
by Law Office of John A. PiaseckiBy: Peter A. Dumas, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Paul F. Cagino, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 27, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim arises from a September 18, 1999 automobile accident that occurred on Route 11 in the Town of Clinton. As claimants' vehicle, which was traveling westbound, slowed because of a bump in the road, it was struck from the rear by a bus belonging to the Department of Correctional Services ("DOCS") and driven by an employee of Upstate Correctional Facility. After the accident, claimants returned to their home, being taken there by relatives whom they had called. Later that day, they went to the nearest Emergency Room. Defendant moves for summary judgment dismissing the claim on the ground that neither claimant sustained a "serious injury" as defined by section 5102(d) of the Insurance Law, part of New York's No-Fault Insurance provisions.

Insurance Law § 5102 (d) defines "serious injury" as
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or 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(d) is part of the New York State No-Fault Law that was adopted by the Legislature to effect changes in the common law tort system of compensating automobile accident claimants. (Insurance Law, art 18, L 1973, ch 13, §1; Montgomery v Daniels, 38 NY2d 41, 49-53 [1975]). Any injury not falling within the statutory definition of serious injury is considered minor and no trial is permitted under the no-fault system. It is claimant's burden to make a threshold showing that he or she sustained a serious injury as defined by Insurance Law §5102(d) (Licari v Elliott, 57 NY2d 230, 235 [1982]). Here, claimants allege that they each suffered a "significant limitation of use of a body function or system," specifically Gerald Greeno's cervical and lumbar spine and Marieta Greeno's cervical spine.

Injuries of Gerald Greeno:
Following the accident, claimant Gerald Greeno went to Alice Hyde Hospital, at which time x-rays of his lumbar and cervical spine were taken. Although preexisting signs of wear were noted (mild scoliosis in the lumbar spine and moderate degenerative changes in the cervical spine), no acute abnormalities or fractures were found (Cagino affirmation, Exhibit B). On September 22, 1999, four days after the accident, Mr. Greeno was seen by his primary care physician, Dr. Anjni Bhagat, and on referral, by Dr. Hargraves, a neurosurgeon.

In an affirmation submitted in opposition to the instant motion,[1] There is some merit, however, to defendant's argument that many of the statements made by Dr. Bhagat rely entirely on the unsworn records of unidentified persons. For the purposes of this motion, however, the Court will assume that, if requested to do so, claimants' counsel could obtain the information on which Dr. Bhagat relied in proper, admissible form and thus support the statements in Dr. Bhagat's affirmation. Dr. Bhagat reported that when he first examined Mr. Greeno after the accident, he determined that claimant was suffering from "multiple contusions with back and neck strain" and that he had a decreased range of motion in his neck, being unable to flex it fully (Bhagat affirmation, ¶17). By the next visit on September 28, 1999, when his condition was essentially unchanged and he was continuing to have muscle spasms, Dr. Bhagat prescribed physical therapy. An MRI of the lumbar spine was performed, and Mr. Greeno received physical therapy for approximately two months. At a follow-up visit in November, Mr. Greeno was still "extremely stiff with aches and pains all over" (id. ¶ 20). In January 2000, he reported that he didn't believe physical therapy was helping him, but the following month he stated that the symptoms appeared to be improving. Physical therapy continued at least through May 2000. At that time, according to Dr. Bhagat, Mr. Greeno was still having severe back pain and unable to drive for long distances. Over a year after the accident, in November of 2000, was the last time that the physician treated Mr. Greeno's back and neck condition. At that time, he advised Mr. Greeno that in living with this condition, he would have to be careful in what he does.

The physical therapy evaluations revealed the following findings, as they are conveyed by Dr. Bhagat:

October 5, 1999:

Lumbar spine
: flexion decreased by 75%, with associated lower back pain; left and right rotation decreased by 80% with associated pain; left and right bending decreased by 50%, with associated pain

Cervical spine
: felxion decreased by 25% with associated pain; right and left rotation decreased by 50% with associated pain on right side; right side bending decreased by 75% with associated pain on right; extension decreased by 75% with associated central neck pain; retraction decreased by 50%, with central neck pain


December 8, 1999

Lumbar spine
: flexion decreased by 50%, with associated lower back pain; left and right rotation decreased by 50% without pain; left and right bending decreased by 25% and 30%, with associated pain in left hip; extension decreased by 50% without pain

Cervical spine
: flexion decreased by 25% without pain; right and left 50% with pain rotation decreased by 25% without pain; right bending decreased by 75% with associated pain; left bending decreased by 75% with associated pain; extension decreased by 25% with complaints of dizziness; retraction decreased by 30%, with associated central neck pain


January 18, 2000

Lumbar spine
: flexion decreased by 40%, with associated lower back pain; left rotation decreased by 40% without pain; right rotation decreased by 50% with associated pain; right bending decreased by 20% with associated pain on right side; extension decreased by 40% with associated low back pain

Cervical spine
: flexion decreased by 10% without pain; right rotation decreased by 25% without pain; right bending decreased by 75% with associated pain; left rotation decreased by 30% with associated central neck pain; left bending decreased by 50% with associated pain; extension decreased by 15-20% with complaints of dizziness; retraction decreased by 25%, with associated central neck pain


April 6, 2000

Lumbar spine
: all movements decreased by 25% with associated left low back pain

Cervical spine
: right bending decreased by 40% with associated pain; left rotation decreased by 25% with associated pain; left bending decreased by 20% with associated pain; extension decreased by 15-20% with associated bilateral neck pain


It appears that Mr. Greeno stopped going to physical therapy sessions after May 16, 2000 because he no longer believed that it was helping him.

Prior to the September 1999 accident, Mr. Greeno had complaints involving his right hand and wrist and swelling and pain in his left leg and ankle (id. Exhibit D). Although an MRI had been recommended prior to the accident in connection with his left ankle problem, none was conducted until 2002, several years after the accident. These revealed an abnormality, possibly a cyst, on the lumbar spine (Cagino affirmation, Exhibit G) and evidence of a partial tear of the deltoid ligament on the left ankle (id. Exhibit H).

More recently, Mr. Greeno was examined by Dr. Louis J. Benton, an orthopedic surgeon, as part of the independent medical examination arranged by defendant (id. Exhibit C). According to Dr. Benton, claimant stated that the only injuries he had that were related to the September 1999 accident were to his right hand and shoulder, his left ankle and his lower back. Dr. Benton observed no objective findings to support any of these complaints other than a mild swelling of the left ankle which medical records indicate existed prior to the 1999 accident. During the period immediately following the accident, Mr. Greeno's work history was unremarkable. He took a total of three days of sick leave: October 6, 1999; February 9, 2000; and June 2, 2000.

Injuries of Marieta Greeno
: Mrs. Greeno also went to the Alice Hyde Hospital on the day of the accident, and she was diagnosed as having a "neck sprain" (id. Exhibit J, pp 2-3). X-rays taken on the day of the accident and an MRI performed in 2000 (id. Exhibits P, Q) also showed no trauma related abnormalities. When she followed up with Dr. Bhagat on September 22, 1999, she stated that the pain was still present but not as bad as on the day of the accident. He diagnosed her as having "whiplash" (id. Exhibit K; Bhagat affirmation, ¶ 3). In November and December, she was again seen by Dr. Bhagat, and on those occasions she complained of neck pain, dizziness, and a burning sensation in her cervical area. The doctor recommended an MRI, which was performed on April 17, 2000. This procedure revealed a "bony encroachment on the intervertebral foramen on the right side at the C5-6 vertebrae" (id. ¶ 7). There is nothing in the record before the Court to link this to the 1999 accident. Although physical therapy appeared to help, Mrs. Greeno continued to have complaints of dizziness and radiating pain. On July 11, 2001, she was told by Dr. Bhagat that her neck pain may never fully subside.

Physical therapy notes for Mrs. Greeno indicate that she was diagnosed as having "a minimal decrease in range of motion of her cervical spine in lateral bending bilaterally" and in left rotation. On May 1, 2000, she received the following measurements of movement of her cervical spine: left side bending decreased by 20%; right side bending decreased by 50%; extension decreased by 50%. Approximately two months later, on June 29, 2000, her cervical range of motion was decreased in side bending by 50% and in extension by 25%.

In May 2003, Mrs. Greeno was examined by Dr. Benton, in an independent medical examination related to this lawsuit. She stated that the injuries she received from the accident related to her neck, but again Dr. Benton was unable to find any objective signs supporting a diagnosis of traumatic injury (id. Exhibit L). There were some degenerative arthritis injuries noted.

Defendant's submissions in support of this motion have met its initial burden of presenting evidence that the claimants did not suffer a serious illness. This shifts the burden to the claimants to produce evidence in admissible form that will, at a minimum, establish that there is a question of fact as to whether they have overcome the threshold requirement (Armstrong v Wolfe, 133 AD2d 957 [3d Dept 1987]).

As noted above, one way to establish that a litigant has a serious injury, as defined by Insurance Law §5102(d), is to prove that they suffered a "significant limitation of use of a body function or system." To make the necessary showing, an expert medical witness must establish the existence of the injuries and causation to a reasonable degree of medical certainty (Dumas v Valley View House Inc., 235 AD2d 767 [3d Dept 1997]). As noted by claimants' counsel, documented loss of range of motion can be used to substantiate a serious injury (Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). It cannot accomplish the task alone, however.

In the Toure decision, the Court of Appeals held that sufficient proof had been presented to establish a "significant limitation of use of a body function or system" and overcome defendants' motion for summary judgment where three types of evidence were presented by the plaintiff: objective evidence of injury (MRI results showing herniated discs); a qualitative or quantitative description of subjective symptoms (loss of range of motion); and an expert's explanation of how the plaintiff's injury and limitation of movement affected the normal function, purpose and use of the relevant body part and how they affected the plaintiff's ability to carry out normal, daily tasks (id. at 355).

Just last year, the Third Department reiterated that where there is no independent objective medical evidence of a related injury "a finding of reduced range of motion alone is insufficient to support a finding of serious injury because such a determination is based on subjective complaints of pain" (Durham v New York East Travel, Inc. (2 AD3d 1113, 1115 [3d Dept 2003]). In that case, an MRI taken a month after the accident showed a moderate to large disc herniation in the plaintiff's cervical spine, a herniation that had not been present in an MRI taken for other purposes two months before the accident. Two years later, the plaintiff continued to have a range of motion in the cervical area that was only 50% of normal. Defendant argued that there was no objective evidence of the continuing limitation of the range of motion, but the appellate court stated that once a herniated disc has been established by objective medical evidence, such as an MRI, an expert's designation of the individual's loss of range of motion, by a numeric percentage, can be used to substantiate a claim of serious injury. The court made it clear, however, in the statement quoted above that the result would be different if there was no corresponding objective evidence of an injury. (See also John v Engel, 2 AD3d 1027 [2003]; June v Gonet, 298 AD2d 811 [3d Dept 2002]; Mikl v Shufelt, 285 AD2d 949, 950, [3d Dept 2001]). In June (supra), the serious injury threshold was not met because the MRI results were for the most part unremarkable; there was no showing that the only abnormality noted on them was related to her particular symptoms; the expert did not offer an opinion regarding permanence other than "the mere parroting of the applicable statutory language;" her physician failed to describe the nature of her limitations as they are compared to the function, purpose and use of the affected body part; and the physician provided no detail as to how the limitations impacted on her work and other daily activities (298 AD2d at 812-813).

In the instant case, there is no objective medical evidence of a serious injury. Claimants rely exclusively on their subjective complaints of pain and the measurements of decreased range of motion which, in turn, are based on those subjective complaints. In addition, claimants' physician has made no firm finding of permanence, nor is there any objective evidence indicating permanency. In fact, the steady improvement of both claimants' range of motion measurements during the time that they went to physical therapy suggest that their limitations in movement may well not be permanent. Furthermore, there has been no effort to connect the result of any injury or limitation of movement to "the normal function, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 AD3d 1027, supra).

Claimants, therefore, have failed to establish either that their injuries meet the "serious injury" threshold or that there is a question of fact as to whether they may meet that threshold. Defendant's motion is granted, and Claim No. 104514 is dismissed.




September 27, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on defendant's motion for summary judgment in its favor:
1. Notice of Motion and Supporting Affirmation of Paul F. Cagino, Esq., AAG, with annexed Exhibits and Memorandum of Law

2. Affirmation in Opposition of Peter A. Dumas, Esq., with annexed Exhibit (Affirmation of Anjni Bhagat, M.D.) and Memorandum of Law

3. Reply Affirmation of Paul F. Cagino, Esq., AAG

Filed papers: Claim; Answer


[1] Defense counsel contends that this document, an unsworn affirmation rather than a sworn affidavit, is not sufficient because it is not in admissible form. CPLR 2106 provides, however, that "[t]he statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit."