New York State Court of Claims

New York State Court of Claims

TURNER v. STATE OF NEW YORK, #2008-032-117, Claim No. 108423, Motion No. M-73381


Synopsis



Case Information

UID:
2008-032-117
Claimant(s):
EUGENE TURNER
Claimant short name:
TURNER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108423
Motion number(s):
M-73381
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Law Offices of G. Oliver Koppell and AssociatesBy: 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 22, 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, Eugene Turner (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 properly secured the safety belts of the inmates, who were each handcuffed and shackled by the waist. He further alleges that West fell asleep while driving and lost complete control of the vehicle, swerving initially to the far right side of the road and then to the far left, causing the van to proceed off the left side of Interstate 87 and strike a set of guide wires. Claimant, who was thrown from one side of the vehicle to the other and then back again, struck his head on one of the windows. He alleges that as a result of the accident, he sustained injury to his neck and head, which continue to cause him pain and suffering.

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). Claimant opposes the motion, asserting that: (1) defendant's actions need only rise to the level of negligence, but that even if they need to rise to the level of recklessness, they do; and (2) claimant has sustained a serious injury in accordance with Insurance Law § 5102 (d).

Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court’s function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (Barr v County of Albany, 50 NY2d 247 [1980]). The proponent of a motion for summary judgment must make a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once this showing has been made, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York University Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence must be viewed in the light most favorable to the opponent of the motion, and that party should be given every favorable inference (see McKinnon v Bell Sec., 268 AD2d 220 [1st Dept 2000]).

In New York State, a covered person may not recover for non-economic loss against another covered person, for personal injuries arising out of a motor vehicle accident, except where a serious injury has been sustained (Insurance Law §5104 [a]). In the present case, claimant, as a passenger in the motor vehicle, is a "covered person" as defined by Insurance Law §5102 (j). Accordingly, in order to recover for non-economic loss against defendant, claimant is required to plead and prove that he sustained a serious injury as defined by Insurance Law §5102 (d) (Zecca v Riccardelli, 293 AD2d 31 [2d Dept 2002]; Licari v Elliott, 57 NY2d 230, 235 [1982]).

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.


On a motion for summary judgment, where the issue is whether claimant has sustained a serious injury within the meaning of Insurance Law § 5102 (d), 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]). If the initial burden is met by defendant, the burden shifts to claimant to produce sufficient evidence to overcome defendant’s motion by demonstrating that claimant sustained a serious injury within the meaning of the No-Fault Insurance Law (Gaddy v Eyler, 79 NY2d at 957). The evidence submitted must be based upon objective medical findings and diagnostic tests, so as to 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, claimant alleges in his Verified Bill of Particulars that he sustained visible head injuries, a concussion, headaches, upset stomach and vomiting as a result of the accident on August 7, 2002. He further alleges that he sustained bulging discs in his neck which cause severe pain in his neck and result in temporary recurring paralysis, and a hematoma which had to be surgically removed.

In support of its motion, defendant annexes the certified medical records of claimant while in the custody of the Department of Correctional Services. Said medical records, which include an "Inmate Injury Report", reveal that following the accident on August 7, 2002, claimant complained of neck pain and a painful bump on the back of his head. He was diagnosed as having a hematoma on his head and a possible concussion. Claimant spent the night under observation at the Clinton Correctional Facility infirmary and when he was discharged the following day, it was noted that he was in stable condition and did not have any complaints.

Claimant was returned to Franklin Correctional Facility on August 8, 2002, and on August 12, 2002, he complained of having a headache, cervical pain, a stiff neck and nausea. He was placed on cube restriction for a total of one week (initially from August 12, 2002 to August 15, 2002, and subsequently from August 15, 2002 to August 19, 2002). In addition, he was provided with a medical excuse authorizing him to have a bottom bunk, a bed board, a neck brace, and sports time restricted to "walking in yard only" from August 13, 2002, until October 30, 2002. Claimant was prescribed Flexeril and Naprosyn for his pain.

On August 13, 2002, an x-ray of claimant’s cervical spine was ordered. Said x-ray, which was performed on August 14, 2002, revealed evidence of “mild lower cervical degenerative changes.” It further revealed that the prevertebral soft tissue thickness was maintained, that there were no fractures, and that there was no acute abnormality. However, claimant continued to make intermittent complaints of pain in his neck, and on August 29, 2002, following a physical therapy consult in which it was noted that his range of motion was restricted, claimant was referred for physical therapy. As part of said therapy, which claimant attended from September 2002 through December 2002, claimant was provided a TENS Unit for myofascial release therapy. On October 28, 2002, claimant showed improved range of motion and strength. When he was discharged from said therapy on December 23, 2002, it was noted that he was "doing fine" and "feeling better".

A further x-ray of claimant’s cervical spine was conducted on December 17, 2002. Said x-ray revealed a normal alignment of the cervical vertebral bodies, and that claimant had “mild multi-level degenerative disc disease.” The following day, claimant’s neck brace was returned to the Health Services Department, as a result of his failure to wear it.

T
hereafter, claimant continued to make intermittent complaints of neck pain. The medical excuses authorizing him to have a neck brace and sport time that was restricted to "walking in yard only" were extended to April 30, 2003. The medical excuses allowing him to possess a bed board and a bottom bunk were extended until March 3, 2004, and March 4, 2004, respectively. Notably, claimant's medical records reflect that he refused to sign a document on March 3, 2003, agreeing to wear the cervical collar as recommended.

On March 15, 2004, claimant had a growth removed from his scalp, which growth was subsequently diagnosed as a lipoma.

On March 19, 2004, a further x-ray of claimant’s cervical spine was conducted. Said x-ray revealed that there is anatomic alignment of the cervical vertebral bodies, mild disc space narrowing at C3-C4 and C5-C6, and no intrinsic bony abnormality. It further revealed “early degenerative disc disease.” Following additional intermittent complaints of neck pain, and upon claimant’s request, claimant underwent additional courses of physical therapy in April/May 2004, June/July 2004, and July/August 2005.

None of claimant’s medical records reflect any evidence of bulging discs in his neck or that he had temporary, but recurring paralysis, despite the claims in claimant’s Verified Bill of Particulars.

In further support of it's motion, defendant offers the Affidavit of Glenn C. Champagne, M.D., a physician who has been providing medical services for the Department of Correctional Services since 1993, and who provided medical services to claimant while at Franklin Correctional Facility. In his Affidavit, Dr. Champagne explains that a hematoma is a localized collection of blood, usually clotted, in a tissue or organ, and states that there is no indication that the hematoma discovered on claimant's head following the accident resulted in any head injury or was contained in any organ.

Dr. Champagne also states that the x-rays taken of claimant's cervical area, which he indicates were reviewed by Board Certified Radiologists, revealed that no significant injuries were received to the cervical area as a result of the motor vehicle accident on August 7, 2002. He further states that the finding of early degenerative disc disease is normal in a person of claimant's age and expected, considering claimant's past history of boxing, which claimant testified, at his deposition, to doing at amateur and semi-professional levels.

As to the growth that was removed from claimant's scalp on March 15, 2004, Dr. Champagne explains that it was a fatty tumor which, upon laboratory examination, was determined to be a benign lipoma that would not be a cause of any of claimant's subjective complaints of pain. He explains that said lipoma could be attributed to many causes, including former boxing related injuries, the lump discovered on the back of claimant’s head after he reported falling in June 2000, or any other trauma to the back of his head. Dr. Champagne indicates that, in addition to the fact that the lipoma could have been in existence for years, it is not a serious injury or a condition that would have affected the activities of claimant.

In conclusion, Dr. Champagne opines, in his Affidavit, that there is no medically determined causal connection between the motor vehicle accident of August 7, 2002 and claimant's complaints of pain. He further opines that there are no indications of injury as a result of any hematoma to claimant's head indicating or requiring any surgery.

The Court finds that defendant, by the foregoing submissions, has made a prima facie showing that claimant did not sustain a “serious injury,” in accordance with Insurance Law § 5102 (d). Therefore, the burden shifts to claimant to submit objective evidence that a “serious injury” was sustained and that it was causally related to the accident on August 7, 2002 (Gaddy v Eyler, 79 NY2d at 957 [1992]; Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345 [2002]; John v Engel, 2 AD3d 1027 [3d Dept 2003]; Tankersley v Szesnat, 235 AD2d 1010 [3d Dept 1997]). Claimant has failed to meet this burden.

In opposition to defendant’s motion, claimant submits an Affirmation of Jay A. Rosenblum, M.D., a neurologist, who opines that claimant suffered a serious physical injury as defined by the New York No-Fault statute. However, Dr. Rosenblum has not 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 such subjective complaints of pain are insufficient to defeat summary judgment (see Scheer v Koubek, 70 NY2d 678, 679 [1987]; Skellham v Hendricks, 270 AD2d 619 [3d Dept 2000]; Crandall v Sledziewski, 260 AD2d 754, 757 [3d Dept 1999]).

Dr. Rosenblum opines, in his Affirmation, that claimant sustained a concussion and a hematoma, as a result of the subject accident. However, a concussion does not constitute a serious injury (see Holbrook v Pruiksma, 43 AD3d 603 [3d Dept 2007]; Stevens v Homiak Transp., Inc. 21 AD3d 300 [1st Dept 2005]) nor do the headaches that claimant claims he sustained following the accident (see Licari v Elliott, 57 NY2d 230 [1982]; Alvarez v Ming Chao Wong, 266 AD2d 248 [2d Dept 1999]; Passarelle v Burger, 278 AD2d 294 [2d Dept 2000]). In addition, Dr. Rosenblum does not refute or even address Dr. Champagne’s statement that there is no indication that the hematoma discovered on claimant's head after the accident resulted in any head injury or was contained in any organ.

In his Affirmation, Dr. Rosenblum indicates that claimant complained of blurred vision which necessitated “Artificial Tears” after the accident. However, he fails to address, as claimant’s medical records reveal, that claimant has a long history of vision problems, including blindness in one eye, and that he has requested and been provided with “Artificial Tears” on multiple occasions prior to the accident.

Dr. Rosenblum states that on August 29, 2002, three weeks after the subject accident, claimant’s range of motion was abnormal and believed to be secondary to pain. He further states that, as a result of the accident, claimant sustained cervical derangement and that, because of his repeated complaints of pain in his back and neck, and limitations in his movement, he was referred for physical therapy on several occasions. However, the x-rays which were performed on claimant’s cervical region in August 2002, December 2002, and March 2004, all reflect that claimant suffered from a degenerative disc disease. Dr. Rosenblum fails to explain how claimant’s complaints and limitations are related to the accident, as opposed to that of degenerative disc disease. Dr. Rosenblum further fails to rebut, or even address Dr. Champagne’s statement that the finding of early degenerative disc disease is normal in a person of claimant's age and expected considering claimant's past history of boxing.

Moreover, to recover under the theory of “permanent consequential limitation of use of a body organ or member,” the requirement of permanency must be met (Insurance Law §5102 [d]). To recover under the category of “significant limitation of use of a body function or system,” permanency is not required to be established, but the limitation must be “significant” (Insurance Law §5102[d]). In the present case, claimant has failed to provide any objective evidence to establish that his limitation is permanent or significant. Simply using the word "permanent" in describing claimant’s condition is insufficient to raise a triable issue of fact, particularly where no evidence has been submitted regarding the degree of claimant’s limitation (see Fountain v Sullivan, 261 AD2d 795 [3d Dept 1999].

To recover under the 90/180 day category of serious injury, claimant needs to show how he has been prevented from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the accident (Insurance Law §5102[d]; Gaddy v Eyler, 79 NY2d 955, 958 [1992]; Licari v Elliott, 57 NY2d 230, 236 [1982]). “[T]he words ‘substantially all’ should be construed to mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment.” (Licari, 57 NY2d at 236). In support of claimant’s position that he has sustained such a serious injury, Dr. Rosenblum references the numerous medical excuses rendered to claimant following the accident. Said medical excuses reflect that claimant was on cube restriction for a total of only one week; that he was required to have a neck brace until April 30, 2003, which, it was recorded, he refused to agree to wear as recommended; that his sport time was restricted to "walking in yard only," until April 30, 2003; and that he was required to have a bottom bunk and a bed board until March 2004. These restrictions do not rise to the level of curtailing claimant from performing his usual activities to a great extent, as is required. At best, they are minor limitations, which are insufficient to constitute a serious injury (Gaddy v Eyler, 167 AD2d 67, 71 [3d Dept 1991], affd 79 NY2d 955 [1992]. Notably, because of claimant’s history of vision problems and the fact that he is blind in one eye, it has previously been recommended that he refrain from any activity which would put his remaining eye in danger. This further confirms that the restrictions placed on claimant after the accident could not have not significantly curtailed his usual and customary activities.

Based on the foregoing, it is this Court’s conclusion 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).

Defendant’s motion for summary judgment is granted and Claim No. 108423 is dismissed. As a result of said dismissal, the Court need not address the other issues raised in defendant’s motion.


September 22, 2008
Albany, New York

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


Papers Considered:


1. Defendant’s Notice of Motion, dated May 11, 2008, with Affirmation of Michael C. Rizzo, Esq., dated May 11, 2008, and Exhibits A - I;

2. Defendant’s Memorandum of Law, dated May 11, 2007;

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

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

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