New York State Court of Claims

New York State Court of Claims

BONSALL v. THE STATE OF NEW YORK, #2004-032-128, Claim No. 105146, Motion Nos. M-68911, CM-68990


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:
Linnan & Fallon, LLPBy: James D. Linnan, Esq., George J. Hoffman, Jr., Esq. and Charlene S. Fallon, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Stephen J. Maher, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)



The parties have cross-moved for partial summary judgment on the issue of liability and claimant seeks dismissal of defendant's second affirmative defense.[1] Defendant's cross-motion is based on allegations that claimant did not sustain a serious injury as defined by §§ 5104 (a) and 5102 (d) of the New York Insurance Law. Since this is a threshold issue, it will be addressed first.

This claim arose out of a motor vehicle accident which occurred on October 13, 2000, at approximately 4:15 p.m. at the intersection of Route 73 and County Road 35 (a/k/a Old Military Road) in the Town of North Elba, New York. At the time of the accident, claimant was operating a 1995 Jeep Grand Cherokee and, traveling southbound on Route 73, was approaching the intersection of that road with County Road 35. At that same time, New York State Trooper Marc A. McDonell was operating a 1998 Ford police vehicle northbound on Route 73. As Trooper McDonell attempted to make a left hand turn from Route 73 onto County Road 35, the right front portion of this police vehicle was struck by claimant's vehicle.

Route 73 is a two lane highway, one lane northbound and one lane southbound (Maher affirmation, Exhibit B [photograph]). According to claimant, she was proceeding southbound when she saw a police vehicle "headed straight towards" her (Linnan affidavit, Exhibit F [claimant's deposition transcript, p 26]). She attempted to turn the wheel to the left as much as she could, but the right front end of her vehicle struck the side of the police vehicle (id., pp 26-27). Trooper McDonell was on duty at the time of the accident. He was returning from a "Driving While Intoxicated Workshop" with the Essex County District Attorney's Office in Elizabethtown, New York and was headed to Ray Brook, New York to drop off and pick up information at the New York State Police Headquarters located there. He was headed northbound on Route 73 in a marked police vehicle, intending to bypass the Village of Lake Placid by making a left hand turn from Route 73 onto County Road 35. According to Trooper McDonell, he was traveling 45 to 50 m.p.h. in a 55 m.p.h. speed zone. He was behind a brownish compact car and did not observe any southbound traffic as he approached the intersection of Route 73 with County Road 35 (Maher affirmation, Exhibit C [McDonell affidavit] ¶¶ 2 to 5).

Then, within less than ten seconds, Trooper McDonell observed brake lights on the brownish compact come on, its right turn signal become activated, and the car "suddenly and unexpectedly" veer off the road onto the shoulder, in what he perceived to be a smoke cloud but which in retrospect could have been a cloud of dirt or dust (McDonell affidavit, ¶¶ 6,7). The Trooper believed that there was smoke or fire coming from the brownish compact and that an emergency situation was developing. He continued to view the compact through the rear passenger side window as he started making the left hand turn onto County Road 35. It was his intention to stop his vehicle on County Road 35 and determine if the driver of the compact car needed assistance. Trooper McDonell first observed claimant's vehicle as he was in the process of making the turn. He then veered his police vehicle farther to the left in an attempt to avoid impact, but the cars came into contact almost immediately in the southbound lane of Route 73. Trooper McDonell stated that he did not have time to activate his lights or siren (id., ¶¶ 8 to 10).

After the collision, the Trooper approached the claimant, told her that he was sorry, and asked her if she was hurt. According to the Trooper, she denied that she was hurt. He then radioed for police assistance. At some point, he observed that the occupants of the brownish compact had exited their vehicle and were taking pictures of each other in front of the "Welcome to Lake Placid" sign (id., ¶¶ 11, 12).

At his deposition, Trooper McDonell testified that he had not received any radio communications from any source about an incident that he should be investigating. He further testified that he had already initiated the left hand turn when he first saw the claimant's vehicle. He admitted during his deposition that the accident was his fault (Maher affirmation, Exhibit D [McDonell deposition transcript], pp 7-10). According to Trooper McDonell, claimant advised him that she had lost her job and was having a bad time but that she was fine. An ambulance responded to the scene, but claimant declined to be transported by ambulance and eventually left the scene with a friend (id., pp 10-11).

New York State Police Sergeant Mark W. Wheet was the main investigating officer for this incident. He testified that by the time he arrived at the scene the vehicles had been moved but that most of the debris from both vehicles was still located in the southbound lane of Route 73 (Maher affirmation, Exhibit E [Wheet deposition transcript], pp 3, 5). He determined that Trooper McDonell had failed to yield the right-of-way at the intersection and that there were no contributing factors by claimant (id., pp 15, 21). Sergeant Wheet admitted, however, that he had no training as an accident reconstructionist, that he made no attempt to ascertain the speed of claimant's vehicle, and that he could not recall if there were any skid marks, although he did not believe that any had been measured (id., p 19).

Sergeant Wheet further testified that he never asked Trooper McDonell if he was on an emergency call at the time of the accident. He did question McDonell about the accident and testified that McDonell told him that he was observing a vehicle which had suddenly gone off the road as he started to make his turn and that when he then observed claimant's vehicle, he could not avoid the accident (id., pp 15, 18). Sergeant Wheet also spoke to claimant at the scene of the accident. He testified that she did not indicate that she was injured, that he observed no injuries, and that he noted no injuries on his police report (id., pp 23-26). According to Wheet, claimant called him two or so days after the accident to inquire about the possibility that the State Police insurance might pay for a rental car for her because she wanted to attend a function out of state. Sergeant Wheet contacted his Division regarding her inquiry and called back that same day to inform her of the procedures to follow. Claimant did not indicate to Sergeant Wheet during either conversation that she had been injured as a result of this accident (id., pp 7-8, 25).

Daniel S. Bates, a Technical Sergeant with the New York State Police who is assigned to the Collision Reconstruction Unit, Division of Traffic Services, in Albany developed a report of the accident (Maher affirmation, Exhibit P). According to Sergeant Bates, Route 73 and County Road 35 are both two way, individual flow roadways separated by double solid yellow lines indicating no passing zones. Approaching from the north, the intersection has a "Y" configuration, with County Road 35 bearing to the left and Route 73 continuing along a gradual right hand curve. As a result of this configuration, a person traveling northbound on Route 73 (as was Trooper McDonell) would only need to turn the steering wheel slightly to the left to enter County Road 35 (id., p 4).

Damage to the police vehicle was estimated at $4,884.90 and was limited to an imprint of the front bumper of claimant's vehicle which began at the edge of the cruiser's front passenger door and traveled rearward past the rear passenger door. Claimant's vehicle sustained $4,139.94 damage. The passenger front headlight was missing and half of the front grille on the passenger side was displaced. Contact damage also was present around the passenger front quarter panel. The hood of her car was undamaged, and the driver's side air bag had not deployed. The latter fact indicated to Sergeant Bates that the change of speed (delta V) at the time of the collision was very low. Sergeant Bates concluded that the primary cause of the accident was Trooper McDonell's failure to yield the right-of-way (id., pp 5-7).

Claimant has alleged that, as a result of this accident, she sustained a serious injury as defined in § 5102(d) of the Insurance Law (claim, ¶10). More particularly, claimant alleges that she sustained a lumbar vertebra fracture and suffers pain, stiffness, difficulties with range of motion in and about her lower back and right hip and an exacerbation of a prior lumbar injury and that this injury has prevented her from pursuing employment for a considerable period of time and has detrimentally affected her quality of life (claim, ¶ 16). Defendant, however, asserts that the claimant has a history of pre-existing injuries similar to those she now claims resulted from the motor vehicle accident and that claimant's post accident medical history reveals a lack of objective medical verification of her injuries.

Claimant was born on May 19, 1968 and was apparently active in the business of training horses for many years. In August 1994, approximately six years before the subject accident, she fell from a horse and sustained an anterior wedge compression fracture of the L1 vertebra (see, Maher affirmation, Exhibit F [radiology report dated August 16, 1994]). Subsequently, on October 1, 1999, claimant was admitted to the Stamford Hospital, Stamford, Connecticut with a diagnosis of acute cervical strain as a result of a near fall from a horse six days earlier. She was discharged the next day with complaints of neck and back pain (id., Exhibit G [Stamford Hospital records]). Four months later, on February 20, 2000, claimant was again seen at the Stamford Hospital with complaints of back pain. The diagnosis was lumbar pain syndrome with L1 compression fracture (id.).

Claimant first sought medical attention following the subject accident on October 23, 2000, ten days after it occurred, at the Adirondack Medical Center Emergency Room. The assessment was a compression fracture T10-L1 (Maher affirmation, Exhibit H [Adirondack Medical Center records]). Claimant next sought treatment from Dr. Albert Dingley, an orthopedic surgeon. Claimant was first seen by Dr. Dingley on November 2, 2000, complaining of back pain. Dr. Dingley's progress note indicated a mild compression fracture to L1, and his assessment was that claimant's symptoms were due to this compression fracture. Dr. Dingley recommended a Jewett brace (id., Exhibit I [Dr. Dingley's records]).

Claimant was later referred to Dr. Bruce Tranmer by her current attorney. In his May 7, 2001 progress note, Dr. Tranmer indicates that the 1994 and the 2001 x-rays are very similar in that they both reveal a compression fracture of the L1. Dr. Tranmer also noted some tenderness in the L1 region and limited flexion/extension of the claimant's back. He found claimant to have normal reflexes in her legs, normal sensation and motor exam in her legs, and no evidence of a myelopathy. It was Dr. Tranmer's opinion that the claimant sustained an aggravation of her prior L1 injury as a result of the subject accident. He recommended an MRI and physical therapy. Dr. Tranmer saw the claimant again on May 20, 2002, at which time he noted that a repeat MRI showed degenerative disc bulging at L4-5 and L5-S1. (This same MRI revealed an old, mild compression fracture of L1.) Dr. Tranmer suggested that claimant be seen by the Anesthesia Pain Clinic for epidural blocks and possibly for facet blocks. In his referral letter to the Pain Clinic of May 20, 2002, Dr. Tranmer notes that the claimant has a mild L1 compression fracture which could be the cause of her pain (id., Exhibit J [Dr. Tranmer's records]).

For approximately one year, claimant was seen at the Fletcher Allen Health Care Pain Clinic with a diagnosis of thoracolumbar degenerative disc and facet disease; she received lumbar epidural steroid injections. In a May 8, 2003 progress report, it was noted that the L1 compression fracture was not caused by the accident but that the accident may have precipitated the onset of symptoms. This same report indicates that claimant's symptoms may be related to degenerative disc disease, facet arthropathy or musculoligamentous in nature (id., Exhibit K [Pain Clinic records]).

In February of 2002, claimant was referred to Dr. David G. Welch, and in his February 15, 2002 progress report, Dr. Welch noted the two prior horse related accidents and concluded that the compression fracture that was seen in the emergency room following the auto accident was probably the old L1 compression fracture. Dr. Welch also noted that an October 2000 bone scan had shown no evidence of increased uptake in the lumbar area. He diagnosed claimant with a stiff back due in part to the use of the Jewett brace for two to three months following the motor vehicle accident. It was Dr. Welch's impression that claimant had no neurological deficit (Maher affirmation, Exhibit L [Dr. Welch's report]).

At defendant's request, claimant underwent an independent orthopedic examination, a neurological examination, and a psychiatric examination. Claimant was first seen by Dr. Louis J. Benton, Jr., a board certified orthopedic surgeon. His report, dated April 16, 2003 indicates that in his opinion there was no further compression at L1 and that the film of the thoracic spine did not reveal a compression fracture to T-10 as a result of the car accident. He further opined that there was no evidence that the car accident was responsible for the bulging lumbar discs noted in the MRI reports (Maher affirmation, Exhibit M [Dr. Benton's report]).

Claimant was also examined by Dr. James R. Storey, a neurologist, at defendant's request. It was Dr. Storey's impression that claimant has chronic back pain with a normal neurologic examination. According to Dr. Storey, there was no evidence of radiculopathy or any nerve root compromise and no evidence of spinal stenosis or spinal instability. According to Dr. Storey, the fracture at L1 was not attributable to the motor vehicle accident since it had been present in 1994. In addition, he indicated, the bone scan done on November 27, 2000 showed no increased uptake in that area. A normal bone scan within a few weeks of the injury rules out any new or increased compression fracture. Dr. Storey concluded that there was no medical evidence of a significant limitation or permanent consequential loss of neurologic function (Maher affirmation, Exhibit N [Dr. Storey's report]).

In addition, claimant was examined by Dr. Thomas A. Qualtere, Board Certified in Psychiatry, at the request of the defendant. Dr. Qualtere attributed claimant's overdose of an anti-depressant to relationship issues with her significant other and not to the motor vehicle accident, as she had suggested. While Dr. Qualtere noted that claimant maintains a subjective complaint that she will be in some pain for the rest of her life, he opines that this fear has had no major affect on her life as she maintains employment, engages in social activities, is sexually active, and travels extensively (id., Exhibit O [Dr. Qualtere's report]).

In opposition to defendant's cross-motion for summary judgment on the issue of a serious injury, claimant submitted her own affidavit, the affidavit of Dr. Bruce Tranmer, and medical records from the Fletcher Allen Health Care and the Adirondack Medical Center. In her affidavit, claimant alleges that she can no longer turn side to side in a twisting motion or bend to touch her toes without pain and difficulty. She also alleges that she is unable to drive and/or sit for greater than thirty minutes at a time without significant pain, that she is unable to stand for more than fifteen minutes at a time, and is unable to lift heavy objects. She states that she is now unable to ride a horse, paddle a canoe, or ride a bike without significant pain as a result of the motor vehicle accident (Fallon answering affirmation, [Exhibit D]).

Claimant further submitted the affidavit of Dr. Bruce Tranmer. (id., Exhibit A). It is Dr. Tranmer's opinion that claimant has suffered "a permanent consequential limitation of use of her spine and of her facet joints at the T12 - L1 level" as a result of the trauma sustained in the motor vehicle accident (id., ¶ 11). He bases this opinion in part on the claimant 's report that she experiences limitations in heavy lifting and in prolonged standing, prolonged sitting, and prolonged walking (id., Exhibit A, ¶ 10). In addition, Dr. Tranmer bases his opinion on the following procedures: the lumbar epidural steroid injections; the bilateral T12 - L1 steroid injections; the bilateral T12 - L1 medial branch block ; the T12 - L1 radiofrequency denervation; the bilateral T12 - L1 medial branch pulsed radiofrequency ablation; and the T12 - L1 medial branch pulsed radiofrequency ablation, which, according to Dr. Tranmer, are all objective diagnostic tests of an acceleration/deceleration injury to claimant's facet joints. According to Dr. Tranmer, if these procedures reduce pain by at least 50%, such a result is consistent with a diagnosis of facet joint injury (id., Exhibit A, ¶¶ 7-8).

Dr. Tranmer also relied upon the findings of claimant's physical therapist in rendering his opinion. Physical therapy reports for the period May of 2001 to September of 2001 (Fallon answering affidavit [Exhibit C] indicate a diagnosis of a compression fracture at the L1 level. According to the initial physical therapy evaluation, claimant had normal upright posture with no signs of spinal deviation, bony malalignment or muscle spasms. Neither bilateral lower extremities range of motion testing nor strength testing of the bilateral lower extremities were completed due to claimant's complaints of pain. Lumbar extension was noted as being within normal limits, but the right lumbar rotation was decreased by 90% and the left lumbar rotation was decreased by 75%. In the September 4, 2001 progress report, it was noted that claimant could now kayak and that she showed some improvement in forward flexion of the lumbar spine but that she had regressed with respect to side bending motions (id., Exhibit C [Adirondack Medical Center reports]).
Insurance Law § 5102 (d) defines "serious injury" as follows:
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 victims. (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]).

One of the ways to establish that a litigant has such a serious injury 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]). In Toure v Avis Rent A Car Sys. (98 NY2d 345 [2002]), the serious injury threshold was crossed by presentation of three types of evidence: 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).

Here, the relevant medical evidence connects only two related consequences to the October 2000 accident: claimant's subjective claims of increased pain and measurements indicating a lessened range of motion. Claimant's L1 compression fracture pre-existed the accident, and there was no medically competent explanation that connected her subsequent problems in her lower spine to the effects of the accident. Documented loss of range of motion can be used to substantiate a serious injury, but it cannot be the sole evidence establishing the existence of such an injury (see, Toure v Avis Rent A Car Sys, supra). This was reinforced by the Third Department, which held that if there is no other 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, in contrast to the result of claimant's November 2000 bone scan, 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. 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, that the result would be different if there was no corresponding objective evidence of an injury. (See also, John v Engel, 2 AD3d 1027 [3d Dept 2003]; June v Gonet, 298 AD2d 811 [3d Dept 2002]; Mikl v Shufelt, 285 AD2d 949, 950, [3d Dept 2001]). The only objective evidence of injury to claimant relates to events other than the October 2000 accident in which her car collided with that of Trooper McDonell. In addition, there was no competent proof, other than claimant's own statements and those of physicians based on her report, that any exacerbation of her previous injuries caused by the accident were so significant that they could be viewed as evidencing a "significant limitation of use of a body function or system." Although claimant undoubtedly suffers some pain and limitation from her several back conditions, the more significant of those conditions appear to be entirely unconnected to the automobile collision that is the subject of this claim. In addition, there is evidence that claimant continues to lead a relatively active life.

Inasmuch as there is no objective medical evidence of a serious injury that can be causally connected to the October 2000 automobile accident, claimant has failed to establish either that any injuries arising from that incident either meet the serious injury threshold or raise a question of fact as to whether they may meet that threshold. As there can be no viable claim unless that threshold is met, the Court need not address the other issues raised in the motion and cross-motion.

Claimant's motion is denied; defendant's cross motion is granted; and Claim No. 105146 is dismissed.

December 30, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for partial summary judgment, dismissal of defendant's second affirmative defense, and the imposition of costs and sanctions and on defendant's cross motion for an order of dismissal:

1. Notice of Motion and Supporting Affidavit of James D. Linnan, Esq., with annexed Exhibits;

2. Notice of Cross Motion and Answering Affirmation in Opposition to Claimant's Motion and in Support of Cross Motion of Stephen J. Maher, Esq., AAG, with annexed Exhibits;

3. Affirmation in Opposition to the Cross Motion of Charlene S. Fallon, Esq., with annexed Exhibits;

4. Affidavit of George J. Hoffman, Jr., Esq.

Filed papers: Claim; Answer

[1] That defense, which alleges that the defendant is entitled to the "reckless disregard" standard of care afforded emergency vehicles pursuant to §1104 of the Vehicle and Traffic Law, had been withdrawn by a letter dated August 26, 2002, (Linnan affidavit, Exhibit D). At a conference with the Court conducted on March 17, 2003, however, it was agreed that the defense could be asserted by defendant (id., Exhibit E). In addition to an order striking the defense, claimant seeks costs and sanctions for defendant to maintain this affirmative defense.