New York State Court of Claims

New York State Court of Claims

ALVAREZ v. STATE OF NEW YORK, #2008-032-115, Claim No. 109693, Motion No. M-74254


Synopsis



Case Information

UID:
2008-032-115
Claimant(s):
TIMOTHY ALVAREZ
Claimant short name:
ALVAREZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109693
Motion number(s):
M-74254
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Law Offices of G. Oliver Koppell and Associates By: Daniel F. Schreck, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
September 11, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim arose out of a motor vehicle accident which occurred on August 7, 2002, at approximately 7:58 A.M., on Interstate 87 in the Town of North Hudson, County of Essex. At the time of the accident, Timothy Alvarez (hereinafter “claimant”) was being transported, along with nine other inmates, to the Coxsackie Regional Medical Unit. They were riding in a Department of Correctional Services’ van that was being operated by Correction Officer John G. West (hereinafter "West"). Correction Officer Burton Owen (hereinafter "Owen") was the escort officer who accompanied them. Claimant alleges that neither West nor Owen fastened the seatbelts of the inmates, who were each shackled, in handcuffs and leg irons, with their hands attached to a waist chain. He further alleges that West fell asleep while driving, causing the van to proceed off the left side of Interstate 87 and strike a set of guide wires. Claimant and the other inmates were thrown around in the back of the van, striking one another and the seats, the seat backs, the sides of the vehicle, and the divider which separated the inmates from the driver and the escort officer. Claimant states that as a result of the accident, he sustained injury to his neck and back and that he suffers from constant neck and back pain, severe depression, nightmares and heightened anxiety.

Defendant has moved for summary judgment dismissing the claim, asserting that the State cannot be held liable for claimant’s injuries because: (1) defendant’s actions do not rise to the level of recklessness as required by Vehicle and Traffic Law § 1104; and (2) claimant did not sustain a serious injury in accordance with Insurance Law § 5102 (d) which is a threshold issue.

Insurance Law § 5102 (d) which is a threshold issue, 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 enacted to effect changes in the common law tort system of compensating automobile accident victims (Insurance Law, art 18, L 1973, ch 13, Section 1; Montgomery v Daniels, 38 NY2d 41, 49-53 [1975]). Any injury not falling within the statute is considered minor and no trial is permitted under the no-fault system. It is, therefore, claimant’s burden to make a threshold showing that he sustained a serious injury as defined by Insurance Law § 5102 (d) (Licari v Elliott, 57 NY2d 230, 235 [1982]).

However, on a motion for summary judgment, where the issue is whether claimant has sustained a serious injury, defendant bears the initial burden of establishing, through the submission of competent medical evidence, that claimant did not suffer a serious injury causally related to the accident (Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In doing so, defendant may rely on the medical records and reports prepared by claimant’s treating physicians (Franchini v Palmieri, 1 NY3d 536 [2003]; Cody v Parker, 263 AD2d 866 [3d Dept 1999]). Thereafter, if the initial threshold is met by defendant, the burden shifts to claimant to produce competent medical evidence, based upon objective medical findings and diagnostic tests, which create a genuine triable issue of fact concerning the existence of a serious injury (John v Engel, 2 AD3d 1027 [3d Dept 2003]; Trotter v Hart, 285 AD2d 772, 773 [3d Dept 2001]).

In the present case, defendant annexes, in support of its motion, the certified medical records of claimant while in the custody of the Department of Correctional Services. Said medical records reveal that claimant’s complaints of neck and back pain did not begin with the accident on August 7, 2002, but had been occurring on and off since at least May 12, 1995. Moreover, an entry on December 26, 1996, indicates that claimant has had chronic back pain since being involved in an accident more than 10 years prior thereto. As a result of claimant’s chronic back problems, he was provided with a back brace in the mid-1990s. On June 4, 2002, and June 13, 2002, approximately two months prior to the subject accident, he complained of a stiff neck and spasms.

On August 7, 2002, the day of the accident, and on August 8, 2002, claimant complained of neck and back pain. As a result, x-rays of his lumbar and cervical spine were ordered. The results of said x-rays, which were performed on August 13, 2002, came back unremarkable with no fractures evident. Claimant made no other complaints of neck or back pain until January 9, 2004, approximately 17 months after the accident. Despite said complaints, however, it was noted, on that date, that he had a normal range of motion. The next time claimant complained of having neck or back pain was on May 31, 2004, at which time he was provided with a back brace. On November 9, 2004, an x-ray was performed on claimant to rule out cervical disc problems. That x-ray also came back unremarkable. No further complaints of neck or back pain were noted in claimant’s medical records until November 24, 2006, when he complained of back discomfort and then on January 31, 2007, when he complained of neck pain. An MRI of claimant’s cervical spine, which was conducted on March 21, 2007, noted degenerative changes and the impression of mild spondylosis of the cervical spine. On September 7, 2007, following claimant’s complaints of pain and numbness in his hands and feet, an EMG was conducted, which revealed, in part, "chronic cervical radiculopathies involving predominantly C6 bilaterally, where there is some mild active radiculopathy bilaterally", and the possibility of "a mild peripheral neuropathy given the mildly slowed nerve conduction velocities in the upper extremities." (Defendant's Motion for Summary Judgment, Exhibit 3, p. 10).

Contrary to claimant’s allegations, none of his medical records contain notations regarding complaints of or treatment for any form of depression or mental illness following the accident on August 7, 2002.

Based upon the fact that claimant’s voluminous medical records contain only limited subjective complaints of neck and back pain following the subject accident, that claimant had been complaining of neck and back pain for years prior to said accident, that the x-rays which were performed one week after the accident and two years after the accident came back unremarkable, and that there were significant gaps in the complaints of and treatment to claimant for his alleged injuries, the Court finds that defendant has established prima facie entitlement to summary judgment.

Accordingly, the burden shifts to claimant to produce sufficient evidence to establish that he sustained a serious injury within the meaning of Insurance Law § 5102 (d) (Gaddy v Eyler, 79 NY2d 955, supra; Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345 [2002]; John v Engel, 2 AD3d 1027 [3d Dept 2003]). Claimant has failed to meet this burden. In opposition to defendant’s motion, claimant submitted an affirmation of Jay A. Rosenblum, M.D., a neurologist, who states that as a result of the accident on August 7, 2002, claimant suffers from an exacerbation of his prior complaints of pain in the back and neck area, and had the onset of bilateral radiculopathy. Dr. Rosenblum opines that the injuries sustained by claimant are within the meaning of Insurance Law §5102 (d). However, he never examined claimant and bases his opinion on claimant’s medical records, which consist largely of claimant’s subjective complaints of pain. It is well settled that subjective complaints of pain are insufficient to defeat summary judgment (see Crandall v Sledziewski, 260 AD2d 754, 757 [3d Dept 1999]; see also Skellham v Hendricks, 270 AD2d 619 [3d Dept 2000]).

Moreover, in reaching his conclusion, Dr. Rosenblum fails to address the significant gaps in treatment to claimant, the most notable of which were between August 13, 2002 and January 9, 2004 (17 months), and between November 9, 2004 and November 24, 2006 (24 months). These gaps, which none of claimant’s opposition papers address, constitute additional contributory factors that interrupt the chain of causation between the accident and the claimed injury; and the failure to adequately explain them, even where there is objective medical proof, is fatal to claimant’s case (see Pommells v Perez, 4 NY3d 566 [2005]; Black v Regalado, 36 AD3d 437 [1st Dept 2007]; Rubensccastro v Alfaro, 29 AD3d 436 [1st Dept 2006]). Claimant’s pre-existing complaints of neck and back pain, in addition to a fall that is noted in his medical records to have occurred on November 29, 2004, are also additional contributory factors said to interrupt the chain of causation (see Pommells v Perez, 4 NY3d 566, supra). Dr. Rosenblum does not acknowledge the fall and only mentions claimant’s pre-existing complaints of pain to say that there has been an exacerbation of them. Where a claimant sustained injuries as a result of an accident or incident that preceded the subject accident, the claimant’s expert must adequately address how claimant’s current medical problems, in light of his past medical history, are causally related to the subject accident (see Style v Joseph, 32 AD3d 212 [1st Dept 2006]). Dr. Rosenblum’s failure to do this renders his opinion “speculative” (see Moore v Sarwar, 29 AD3d 752, 753 [2d Dept 2006]) and opinions based on unsubstantiated speculation are insufficient to raise a triable issue of fact (see Andre v Seem, 234 AD2d 325 [2d Dept 1996]; Waaland v Weiss, 228 AD2d 435 [2d Dept 1996]).

Claimant’s allegation, that he sustained a medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts of his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the accident, is belied by the fact that the x-rays performed one week after the accident showed no impairment, and that claimant did not complain of or seek treatment for any neck or back pain thereafter until January 9, 2004, approximately seventeen months after the accident. In addition, the affirmation of Dr. Rosenblum fails to set forth the degree of limitation on the part of claimant or any treatment recommendations (see Fountain v Sullivan, 261 AD2d 795 [3d Dept 1999]. Further, Dr. Rosenblum's affirmation makes no attempt to relate his diagnosis of injury to any constraint on claimant's daily activities (see Baker v Donahue, 199 AD2d 661 [3d Dept 1993]).

In light of the foregoing, the Court concludes that claimant has failed to produce competent medical evidence, based upon objective medical findings and diagnostic tests, which create a genuine triable issue of fact concerning the existence of a serious injury within the meaning of Insurance Law § 5102(d). In addition, as claimant has failed to plead that the subject accident exacerbated any pre-existing injuries he may have had, he is precluded from recovering on said basis (see Andre v Seem, 234 AD2d 325, supra; DeMento v Nehi Beverages, 55 AD2d 794 [3d Dept1976]).

Defendant’s motion for summary judgment is granted and Claim No. 109693 is dismissed. As a result of said dismissal, the Court need not address the other issues raised in defendant’s motion.







September 11, 2008
Albany, New York

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


Papers Considered:

1. Defendant’s Notice of Motion, dated November 28, 2007, with Affidavit of Michael C. Rizzo, Esq., in Support of Motion to Dismiss, sworn to on November 28, 2007, and Exhibits 1-5;

2. Defendant’s Memorandum of Law, dated November 28, 2007;

3. Affirmation of Daniel F. Schreck, Esq., in Opposition to Defendant’s Motion for Summary Judgment, dated April 23, 2008, with Exhibits A-G;

4. Claimant’s Memorandum of Law, dated April 23, 2008;

5. Reply Affidavit of Michael C. Rizzo, Esq., sworn to May 21, 2008.