New York State Court of Claims

New York State Court of Claims

FRONCKOWIAK v. THE STATE OF NEW YORK, #2006-031-017, Claim No. 100579, Motion No. M-70423


Although Defendant met its initial burden, Claimant's submission demonstrates a question of fact as to whether Claimant sustained a serious injury. Defendant's motion for summary judgment is denied

Case Information

KAREN FRONCKOWIAK The caption has been amended sua sponte to reflect the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper Defendant.
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: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Defendant for summary judgment:
  1. Defendant's Notice of Motion, filed July 15, 2005;
  2. Affirmation of Paul Volcy, Esq., dated July 14, 2005, with attached exhibits;
3) Affidavit of James J. White, Jr., M.D., sworn to July 11, 2005, with attached exhibits;
4) Affidavit of Joseph E. Dietrich, III, Esq., sworn to August 26, 2005;
5) Affirmation of Andrew Cappuccino, M.D., dated August 23, 2005, with attached exhibits. Claimant, Karen Fronckowiak, alleges that she was injured in a motor vehicle accident near the Harlem Road exit of I-290 in the Town of Amherst on March 24, 1999. According to Claimant, she was stopped in traffic when she was rear-ended by a vehicle driven by State Trooper George Howze. Claimant alleges that she suffered a disc herniation and unrelenting back pain as a result of the incident. Both parties agree that Claimant had injured her back on several previous occasions.

With this motion, Defendant concedes that the incident occurred, but asserts that the State may not be held liable for Claimant's injuries because Claimant did not sustain a serious injury as defined by § 5102 of the Insurance Law. In support of its motion, Defendant has submitted the affidavit of Dr. James J. White, Jr., who examined the Claimant on April 20, 2005. According to Dr. White, Claimant has not suffered a serious injury as defined by § 5102 of the Insurance Law. Dr. White opined that Claimant suffered no injury in the March 24, 1999, incident and that her symptoms were the result of pre-existing injuries or symptom magnification.

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). I find that Defendant has met this burden through the affirmation of Dr. White, who opines that there is no objective medical evidence demonstrating that Claimant sustained a serious injury in the March 24, 1999 incident.

Once this burden is met, however, Claimant may defeat the motion by establishing, with competent medical evidence that she 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). Claimant's expert, Dr. Andrew Cappuccino, was also Claimant's treating physician prior to the accident. Dr. Cappuccino has submitted an affirmation in which he opines that Claimant did suffer serious injury in the accident.

Specifically, Dr. Cappuccino opines that, although she did have pre-existing back problems, Claimant had demonstrated "slow but steady improvement" and that she was "neurologically and vascularly intact" as of August 10, 1998 (Cappuccino Affirmation, par. 12). At that time, Dr. Cappuccino believed that Claimant's condition could be treated conservatively and surgery was not recommended. After the accident, Dr. Cappuccino noted a "progression in the disc herniation at L3-4" (Cappuccino Affirmation, par. 16) . He believed that her condition was so negatively affected by the March 24, 1999 accident that as of May 27, 1999, he recommended surgical intervention to relieve Claimant's pain (Cappuccino Affirmation, par. 17). Dr. Cappuccino noted that Claimant's records indicate a 50% loss of range of motion in forward extension. And he opined that, after the accident, a Magnetic Resonance Imaging study revealed a new disc injury at the L5-S1 level.

When conservative treatment for Claimant's condition failed, Dr. Cappuccino performed surgery on Claimant. According to Dr. Cappuccino, the March 24, 1999 accident "significantly exacerbated Ms. Fronckowiak's low back injury which was shown by the rapid decline in her health status after the collision" (Cappuccino Affirmation, par. 24). Dr. Cappuccino opined that Claimant's low back injuries and subsequent need for surgery was caused 60% by her pre-existing injury and 40% by the incident in question.

I find that Dr. Cappuccino's opinion is thorough and supported by sufficient objective evidence (see Toure v Avis Rent A Car Sys., Inc., supra at 350; Gaddy v Eyler, supra, at 957 - 958).

For these reasons, I find that Claimant has demonstrated the existence of a question of fact as to whether she suffered a serious injury as defined by Insurance Law §5102(d).

Based upon the foregoing, it is

ORDERED, that Defendant's motion for summary judgment is denied.

March 29, 2006
Rochester, New York

Judge of the Court of Claims