New York State Court of Claims

New York State Court of Claims



Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Cellino & Barnes, P.C.By: John W. Looney, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Gregory P. MillerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 21, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Defendants’ motion for summary


1. Notice of motion and supporting affirmation of Assistant Attorney General Gregory

P. Miller dated November 1, 2007, with annexed Exhibits A-I;

2. Opposing, unsworn affidavit of John W. Looney, Esq. dated April 1, 2008;[1]

3. Reply affirmation of Assistant Attorney General Gregory P. Miller dated April 3,


Filed papers: Notice of Claim filed January 20, 2004;[2] Answer filed February 17, 2004.

This is an action for personal injuries arising out of a motor vehicle accident which occurred on October 21, 2003 when the 1997 Ford Explorer owned and operated by the seat-belted Claimant came to a stop on the I-190 South near Exit 21 in the City of Niagara Falls, New York due to construction and was rear-ended by a Ford pick-up truck owned and/or operated by an employee of the State of New York and/or the New York State Department of Parks and Recreation. As a result of the accident, Claimant’s right leg went under the dashboard and her chest hit the steering wheel. Following the accident, Claimant was taken by ambulance to Mount St. Mary’s Hospital where she remained for several hours before being released. She was thereafter confined to her home, intermittently, for 10-12 days. Defendant moves for summary judgment dismissing the claim on the ground that Claimant did not sustain a serious injury as defined by § 5102 (d) of the Insurance Law.

Insurance Law § 5102 (d) defines “serious injury” as
“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 iinjury 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 Insurance Law. Any injury not within the statutory definition of a serious injury is considered minor and no trial is allowed under the no-fault system (Greeno v State of New York, Ct Cl, September 27, 2004, Hard, J., Claim No. 104514, Motion No. M-67288, UID # 2004-032-076).[3] In her supplemental verified bill of particulars (Defendants’ Exhibit F), Claimant alleges that she sustained the following injuries:
“a. Headaches;
b. Neck pain;
c. Cervical strain;
d. Cervical stiffness;
e. Left arm pain;
f. Thoracic strain;
g. L 3/4 annular bulge;
h. L 4/5 annular bulge with stenosis;
i. Lumbosacral strain;
j. Intermittent right lower back spasms;
k. Constant right sided lower back pain radiating into the right buttock;
l. Right leg pain;
m. Sleep disturbance due to pain;”

In support of their motion, Defendants submit the report of Michael M. Candaras, M.D., neurologist, who performed an independent medical examination (IME) of Claimant at Defendants’ request (Defendants’ Exhibit H), together with Dr. Candaras’ affirmation dated October 30, 2007 (Defendants’ Exhibit I). In his report and affirmation, Dr. Candaras reviews Claimant’s medical history and medical reports and notes that Claimant sustained no fractures, no subluxations, and no disc herniations as a result of the accident. In addition, he notes that Claimant’s right knee x-ray was normal and that she had a normal head CT scan. He further notes that the impression of Claimant’s treating neurosurgeon was lumbar degenerative changes. No surgery was recommended by any of Claimant’s treating physicians and Claimant has taken nothing but Motrin or Tylenol for pain. The impression of Claimant’s remaining physicians was cervical/ lumbar strain/ sprain causally related to the accident. Dr. Candaras’ clinical findings failed to reveal any objective abnormalities to indicate any residual disability. Dr. Candaras opines that Claimant has recovered from her injuries and that she did not sustain a serious injury as a result of the accident.

A party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. Thus, if the Movant fails to meet its initial burden, then the motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, supra at 562). Every inference that can be reasonably drawn from the evidence presented shall be viewed in the light most favorable to the non-moving party.

The Court is satisfied that Defendants have met their burden of proof and, thus, the burden shifts to Claimant. In opposition to Defendants’ motion, Claimant submits nothing but her attorney’s affirmation. In his affirmation, Claimant’s counsel admits that Dr. Candaras’ report and affirmation were very thorough and concedes that Claimant’s injuries do not fall within most of the no-fault categories. The one category which Claimant’s injuries “may” fall within according to her counsel is the significant limitation of use of a body function or system. In this regard, Claimant’s counsel argues that a question of fact remains because Dr. Candaras fails to mention in his report or affirmation the results of any range of motion testing performed on the Claimant.
Documented loss of range of motion may be used to substantiate other objective medical evidence of a serious injury, but it may not be used as the sole evidence of such an injury (Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). In fact, if there is no objective medical evidence of a serious injury, “a finding of reduced range of motion alone is insufficient to support a finding of serious injury because such a determination is based on subjective complaints of pain” (Durham v New York E. Travel, 2 AD3d 1113, 1115 [2003]). Thus where, as here, Defendants have met their initial burden of establishing that Claimant did not sustain a serious injury and where Claimant has failed to submit an affidavit from a treating physician and has failed to submit any objective medical proof to support even a question of fact as to the existence of a serious injury, summary judgment is properly granted to Defendants (see Baez v Rahamatali, 6 NY3d 868 [2006]). Accordingly, it is

ORDERED, that Defendants’ motion M-74179 is granted and claim no. 108790 is dismissed.

May 21, 2008
Buffalo, New York

Judge of the Court of Claims

[1]. Claimant’s opposing papers are styled as an “attorney affidavit.” Because they were unsworn, they do not qualify as an affidavit. The Court has accepted them as an attorney affirmation in spite of the fact that they are not affirmed under penalty of perjury as required by CPLR 2106.
[2]. An action is commenced in the Court of Claims by the filing of a claim, not a notice of claim.
[3]. This and other unreported decisions of the Court of Claims may be found on the Court’s website at