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
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
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.