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 ). 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 ). 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 ).
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 ; Winegrad v New York
University Med. Center, 64 NY2d 851 ; Zuckerman v City of New
York, 49 NY2d 557, 562 ). 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 ).
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
). In doing so, defendant may rely on the medical records and reports
prepared by claimant’s treating physicians (Franchini v Palmieri, 1
NY3d 536 ; 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
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
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.
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 ; Toure v Avis
Rent A Car Sys., Inc., 98 NY2d 345 ; 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 ; 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 ; 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
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
; Licari v Elliott, 57 NY2d 230, 236 ). “[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 . 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
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.