The following papers were read and considered by the Court on this Motion:
Defendant’s Notice of Motion, Defendant’s Affirmation with annexed
Exhibits A-N, Claimant’s Affirmation in Opposition with annexed Exhibits
A-Z, Defendant’s filed and verified Response to Claimant’s Demand
for Production of Documents with annexed Exhibits A-E and the filed Claim.
Defendant, the State of New York, has brought this motion seeking an order of
summary judgment dismissing the claim on the ground that claimant did not suffer
a serious injury as defined by Insurance Law § 5102(d).
Claimant, Sedney Delano, a pro se inmate, alleges in his filed claim
that on December 9, 2004, he was being transported in a New York State
Department of Correctional Services van from Arnot Ogden Medical Center to the
Southport Correctional Facility. During the transport, the van was involved in
a motor vehicle accident with a private vehicle that was exiting a private
driveway. Claimant alleges that at the time of the accident he was in full
restraints but was not in a seatbelt.
As a result of the collision, claimant was thrown around the inside of the van.
Claimant states that he was trapped in the van for 40 minutes before he was
removed by firefighters. Claimant alleges various ailments caused by the
accident including injuries to his head, neck, back, right shoulder, right knee
and right hip. Claimant contends that these injuries prevent him from laying
down on his right side, prevent him from sitting for more than one-half hour
without pain and prevent him from walking up stairs or ramps without pain.
Claimant also alleges that he suffers from blurry vision in his right eye and
loss of hearing in his right ear. Lastly claimant alleges mental anguish,
depression and post traumatic stress disorder due to the accident.
It is well settled that a defendant seeking summary judgment “bears the
initial burden of establishing the absence of a serious injury as a matter of
law by tendering sufficient evidence to eliminate any material issues of fact
from the case” (McElroy v Sivasubramaniam, 305 AD2d 944, 945 [3d
Dept 2003]). “To meet this burden, ‘a moving defendant may rely on
unsworn reports of a plaintiff’s treating physician and is not required to
produce affidavits or affirmations of medical experts to make the requisite
showing provided, of course, that the reports are sufficiently complete and,
combined with other proof, demonstrate that the plaintiff did not suffer a
serious injury’” (McElroy, supra at 945 citing
Seymour v Roe, 301 AD2d 991 [3d Dept 2003]).
If defendant meets its burden, the burden then shifts to the claimant to
“‘rais[e] a triable issue of fact through competent medical evidence
based upon objective medical findings and diagnostic tests’”
(Santos v Marcellino, 297 AD2d 440, 441 [3d Dept 2002] quoting Hines v
Capital Dist. Transp. Auth.,280 AD2d 768, 769 [3d Dept 2001]).
In support of its motion, defendant has submitted a copy of the relevant Arnot
Ogden Medical Center “Emergency Dept. Record-Patient Instruction
Sheet” dated December 9, 2004, which noted back and neck injuries. The
instruction sheet also instructed claimant to follow-up with his doctor if he
felt worse. It was also noted that claimant could take Tylenol and Motrin as
needed. The emergency room records also indicate normal range of motion in the
extremities and a clinical impression of neck strain (see Cl Exh M).
Claimant’s medical records, referenced above, also contain a copy of an
x-ray report taken subsequent to the accident which finds, “[s]pine shows
normal alignment. No fracture is evident. Mild anterior degenerative lipping
is noted at the C5-6 interspace level area” (see Cl Exh V).
Defendant also submitted copies of x-ray reports, taken on January 26, 2005,
which showed no significant abnormalities in claimant’s right knee or
right hip (Def Exh G). Thereafter, claimant continued to complain of pain in
his back and neck at sick call visits. Defendant submitted an MRI report, taken
on July 13, 2005, which examined claimant’s cervical spine. The report
noted that the patient was unable to hold optimally still and stated
‘[t]here is no gross evidence of HNP. There is no central canal or neural
foraminal stenosis. There is no intramedullary abnormality” (Def Exh J).
The Court also notes that in Exhibit D of defendant’s verified and filed
Response to Claimant’s Demand for Production of Documents an additional
spinal x-ray was taken on June 7, 2006 which found no bone or joint abnormality
and no compression fracture.
With respect to claimant’s allegations of blurry vision and hearing loss,
defendant contends that these were pre-existing injuries. Defendant
substantiates its contention with a copy of a consultation report dated January
16, 2004 which indicates “inmate with glaucoma was to be followed
up” and indicates that claimant suffers from blurred vision (Def Exh K).
Defendant also submitted claimant’s Ambulatory Health Record dated
December 6, 2004 which indicates that claimant complained of an assault on
November 29, 2004 which caused, inter alia, ear pain and blurry vision in
his right eye. Defendant further submitted various Ambulatory Health Records
which show that claimant had been complaining of an inability to hear since an
apparent assault which seemingly occurred on November 29, 2004 (Def Exhs L-M).
Lastly, claimant submitted a Request for Reasonable Accommodations form in which
the Medical Verification section notes Non Significant Hearing Loss and is
signed and dated by medical staff personnel on June 24, 2005 (Def Exh N).
These records also indicated that claimant complained of swollen nasal passages
due to the assault and that no fracture was evident (Def Exh L). In response to
claimant’s complaints about breathing difficulties, x-rays were taken of
his nasal and facial bones on May 6, 2005 which found no evidence of a displaced
fracture or obvious fracture (see Cl Exh O).
Based upon the foregoing evidence, which included the emergency room notes,
claimant’s medical records and consultant reports as well as x-ray and MRI
reports, defendant has established that claimant has not sustained a serious
injury within the meaning of Insurance Law § 5102(d) (Tubbs v
Pallone, 45 AD3d 959 [3d Dept 2007], lv denied 10 NY3d 702 ;
Baker v Thorpe, 43 AD3d 535 [3d Dept 2007]). As such, the burden now
shifts to claimant to come forward with sufficient evidence to create a material
issue of fact.
Claimant opposes the motion and contends that he has established a serious
injury. In support of his contention he submitted copies of medical records
from the Arnot Ogden Medical Center as well as his correctional facility medical
records. These records do not establish that claimant has suffered a serious
injury as defined by Insurance Law § 5102(d) and required by Insurance Law
§ 5104(a). The records establish that claimant has made numerous sick call
visits, has complained of pain in various parts of his body and that x-rays as
well as MRI’s were ordered and performed. However, the records revealed
no objective medical proof or evidence of a serious injury. They contain only
subjective complaints of pain which are insufficient to establish the threshold
issue of serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345
; Tubbs v Pallone, 45 AD3d 959 [3d Dept 2007], lv denied 10
NY3d 702 ; Baker v Thorpe, 43 AD3d 535 [3d Dept 2007]); Delaney
v Lewis, 256 AD2d 895, 897 [3d Dept 1998]).
Based upon the foregoing, defendant’s motion to dismiss the claim is