Pommells v Perez

Plaintiff Anthony Pommells was in a three-car accident on March 15, 1998. Days later, on his lawyer's referral, plaintiff visited the North Bronx Medical Center where he had a neurological exam and began a course of daily physical therapy, which he continued for six months, while he remained out of work. Plaintiff initiated suit on June 24, 1998, alleging that he suffered serious injury under Insurance Law § 5102 (d). Plaintiff sought no further medical treatment or review of his alleged accident-related injury for more than three years, when, on January 11, 2002, he consulted with the physician who furnished a report in this case.

In the course of his deposition, plaintiff revealed that in July 2000 -- more than two years after the accident -- he experienced severe pain in his back and side, sending him to a hospital emergency room where doctors inserted a stent in his kidney. After four weeks, doctors determined that surgery was necessary. Plaintiff's kidney was removed on August 18, 2000, and he again was out of work for six months.

Defendants sought summary judgment dismissing plaintiff's claim for failing to raise a triable issue of fact as to the existence of serious injury. In support of their motion, defendants submitted three doctors' affidavits. Neurologist Michael J. Carciente, based on an October 22, 2001 examination of plaintiff and plaintiff's medical records (including the unsworn MRI and consideration of plaintiff's kidney problem), opined that there was "no evidence of a cervical or a lumbosacral spine radiculopathy" and "no evidence of a causally related neurologic disability." Radiologist Steven Brownstein, after also reviewing plaintiff's unsworn MRI, reported that plaintiff suffered "no diffuse bulge or focal disc protrusion" and stated that he could detect only a muscle spasm in plaintiff. Radiologist Richard Rafal reported plaintiff suffered "[n]o gross acute pathology."

In response, plaintiff submitted an unsworn report by Dr. Leonid Slutsky[3] from the March 1998 examination, which, based on a stated series of range of motion tests, revealed limitations in mobility and recommended a course of follow-up medical treatment, including physical therapy, chiropractic treatment, painkilling medication and neurological examinations. Plaintiff also offered a May 11, 1998 unsworn report by Dr. Robert Kronenberg relying on somatosensory evoked potentials (or SSEPs), and which, based on nerve stimulations and recorded limitations in movement, recommended physical therapy, but did not opine as to injury or causation.

Finally, plaintiff submitted the sworn report of orthopedist Louis C. Rose, based on the range of motion tests he performed on January 11, 2002 (detailed in the report), opining that plaintiff had "MRI documented evidence of a herniated lumbar disk with clinical evidence of radiculopathy" and was at risk of "development of osteoarthritic changes in an advanced fashion" due to "the destabilization and micromotion of the cervical and lumbar spine." Dr. Rose noted that plaintiff's symptoms were "causally related to the history as stated," which included both the 1998 car accident and plaintiff's past medical history, notably "[s]ignificant for right-sided nephrectomy which was undertaken on 8/18/00."

The trial court granted defendants' motion for summary dismissal and the Appellate Division affirmed, two Justices dissenting, bringing this appeal before us as a matter of right (CPLR 5601 [a]). We now affirm.

Proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury. Defendants initially made a prima facie showing that plaintiff's alleged injuries did not satisfy No-Fault's serious injury threshold, leaving for plaintiff the burden to present objective medical proof of a serious injury causally related to the accident in order to survive summary dismissal. While plaintiff submitted objective evidence regarding physical limitations, his history revealed two interrupting factors: cessation of treatment six months after the accident and a kidney condition.

We first address the "gap in treatment" noted by the trial court and Appellate Division -- the period of time between the end of plaintiff's physical therapy in 1998 and his visit to Dr. Rose to obtain an expert medical report in 2002.[4] Defendants argue that the "gap" both renders the medical expert's later opinion on causation speculative and places into question the seriousness of the injuries themselves.

In the present case, the so-called gap in treatment was, in reality, a cessation of all treatment. Plaintiff ended his physical therapy six months after the accident and sought no other treatment until years later, when he visited Dr. Rose in connection with this case. While a cessation of treatment is not dispositive -- the law surely does not require a record of needless treatment in order to survive summary judgment -- a plaintiff who terminates therapeutic measures following the accident, while claiming "serious injury," must offer some reasonable explanation for having done so. Here, plaintiff provided no explanation whatever as to why he failed to pursue any treatment for his injuries after the initial six-month period, nor did his doctors ( see Franchini v Palmieri, 1 NY3d 536 [2003]).

Further, plaintiff failed to address the effect of his kidney disorder on his claimed accident injuries. Dr. Rose's report -- the only competent evidence supporting plaintiff's response to the summary judgment motion ( see Grasso v Angerami, , 79 NY2d 813 [1991]) -- in fact noted the kidney surgery in plaintiff's medical history and then relied on that medical history in opining as to causation. Plaintiff's submission left wholly unanswered the question whether the claimed symptoms diagnosed by Dr. Rose were caused by the accident ( see Franchini, 1 NY3d at 537; see also Simms v APA Truck Leasing Corp., 14 AD3d 322 [1st Dept 2005]; Blackwell v Fraser, 13 AD3d 157 [1st Dept 2004]; Mooney v Edwards, 12 AD3d 424 [2d Dept 2004]; Shaw v Looking Glass Assoc., LP, 8 AD3d 100 [1st Dept 2004]; Shinn v Catanzaro, 1 AD3d 195 [1st Dept 2003]; Lagois v Public Adm'r of Suffolk County, 303 AD2d 644 [2d Dept 2003]; Pajda v Pedone, 303 AD2d 729 [2d Dept 2003]; Monette v Keller, 281 AD2d 523 [2d Dept 2001]). On this record, we conclude that defendants' motion for summary dismissal of the complaint was correctly granted.

Brown v Dunlap

On June 25, 1999, plaintiff, then 17 years of age, was a rear seat passenger in a vehicle owned by defendant Athena Dunlap and operated by defendant Louis Saunders (collectively Saunders) when it was struck from behind by a vehicle owned by defendant Trucklease Corporation and operated by defendant Gilberto Schasiepen (collectively Schasiepen). An ambulance transported plaintiff to St. Luke's Roosevelt Hospital, where he complained of neck and back pain. After x-rays revealed no fracture, plaintiff was given pain medication and released. A week later, referred by his counsel, plaintiff sought treatment from Dr. Samuel Melamed who, in August 1999, sent him to Ultra Diagnostics Imaging for an MRI of the lumbosacral spine. At that time, radiologist Mark Freilich reported: "Bulging is seen of discs L3-L5. There is herniation of disc L5-S1 towards the right and centrally indenting the thecal sac. Desiccative changes are noted of herniated disc L5-S1 as well.”

In September 1999, neurologist Daniel Feuer diagnosed plaintiff with a lumbosacral herniated disc and lumbosacral radiculitis. He recommended that plaintiff continue a course of physical therapy supplemented by over-the-counter anti- inflammatory medications. Additionally, Dr. Melamed, relying on Dr. Freilich's earlier MRI report, noted spasms and tenderness and opined that, as a result of the accident, plaintiff sustained an acute cervical sprain and a lumbosacral sprain, and explained that plaintiff's continued pain and limitation of movement over the spine was a permanent injury.

In March 2000, plaintiff commenced this action alleging that he had sustained serious injury within the meaning of Insurance Law § 5102 (d).

Following joinder of issue, defendant Schasiepen moved for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury, and submitted the sworn reports of radiologist Jessica Berkowitz, orthopedist Norman Heyman and neurosurgeon Donald Frank. Defendant Saunders thereafter joined in the motion, adopting Schasiepen's arguments and submissions, and adding the reports of orthopedic surgeon Howard Baruch and neurologist Robert April. According to defendants' medical evidence, any limitations plaintiff suffered as a result of the accident were minor at best. However, those injuries that existed, according to Dr. Frank and Dr. Baruch, were causally related to the car accident. Only defendants' radiologist, Dr. Berkowitz, noted -- without more -- that the "disc desiccation and minimal diffuse disc bulge" were "chronic and degenerative in origin."

In opposition, plaintiff submitted the affirmation of his treating physician, Dr. Melamed, opining that plaintiff suffered from "a herniated disc, confirmed by MRI testing, at L5- S1 towards the right centrally indenting the thecal sac; bulging discs, also confirmed by MRI, at levels L3-L5; and acute cervical sprain.” He added that his April 22, 2002 examination revealed numerical deficiencies in plaintiff's extension and flexion of the cervical and lumbar spine, and he opined, with a reasonable degree of medical certainty, that plaintiff's "inability to move his spine (lower back and neck) to the full range of what is normal [constituted a] definite severe and permanent injury” that was causally related to the accident. Finally, Dr. Melamed explained that "[w]hen it became clear, after extensive therapy in my office, that further treatment and visits would be only palliative in nature, upon discharge from this office, I instructed [plaintiff] as to strengthening and stabilizing home exercises, which consisted of back and neck stretches and strengthening techniques." Plaintiff's own affidavit noted that he continues to suffer "excruciating" pain in his neck and lower back when he stands for more than 15 minutes, and can no longer lift heavy objects; experiences numbness in his legs when he remains too long in the same position; and cannot continue his prior sports activities.

Based on these submissions, Supreme Court granted defendants' motions dismissing the complaint, holding that plaintiff failed to explain a two and one-half year gap in treatment and also fatally relied on unsworn MRI reports. The Appellate Division affirmed, holding that plaintiff failed to both furnish an adequate explanation of the gap in treatment and address the suggested chronic disc condition. Two Justices dissented, bringing the appeal before us as a matter of right. We now reverse and reinstate the complaint.

Defendants' submissions, indicating that plaintiff suffered only minor limitations as a result of the automobile accident, were sufficient to meet their initial burden. Plaintiff's submissions in opposition, however, raise material issues of fact as to whether he sustained a "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system."

On plaintiff's behalf, Dr. Melamed identified measurements of loss of range of motion in plaintiff's cervical and lumbar spine, and on that predicate opined that plaintiff suffered severe and permanent injuries as a result of the accident. Dr. Melamed concluded that plaintiff's "continuing condition accounts for [his] extreme pain, stiffness and inability to move his . . . spine[] to the degree of range of motion characteristic of a normal twenty year-old" ( see Toure, 98 NY2d at 350-351, 353; Melino v Lauster, 195 AD2d 653, 655 [3d Dept 1993], affd , 82 NY2d 828 [1993]). Moreover, Dr. Melamed, in his own sworn statement, noted that the MRI of plaintiff's spine -- taken by Dr. Freilich approximately two months after the accident, and made part of the record _- revealed one herniated and three bulging discs ( cf. Toure [Nitti], 98 NY2d at 357-358).[5]

Neither of the dispositive grounds in Pommells applies here. First, as to the so-called gap in treatment -- the two and one-half years when plaintiff's injuries received no outside attention -- Dr. Melamed explained that, once he determined further medical therapy would "be only palliative in nature," he terminated treatment and instructed plaintiff to continue exercises at home. A plaintiff need not incur the additional expense of consultation, treatment or therapy, merely to establish the seriousness or causal relation of his injury. Unlike Pommells, plaintiff's cessation of treatment was explained sufficiently to raise an issue of fact and survive summary judgment.

Second, as to an alleged pre-existing condition, there is only Dr. Berkowitz's conclusory notation, itself insufficient to establish that plaintiff's pain might be chronic and unrelated to the accident. As opposed to the undisputed proof of plaintiff's contemporaneous, causally relevant kidney condition in Pommells, here even two of defendants' other doctors acknowledged that plaintiff's (relatively minor) injuries were caused by the car accident. On this record, plaintiff was not obliged to do more to overcome defendants' summary judgment motions ( contrast Shinn, 1 AD3d at 195; Lorthe v Adeyeye, 306 AD2d 252 [2d Dept 2003]), and we therefore reverse the Appellate Division's order and reinstate the complaint.

Carrasco v Mendez

On May 31, 2000, defendant's car struck plaintiff's vehicle as plaintiff was attempting to park and, on July 24, 2000, plaintiff commenced this action alleging that he suffered an accident-related "serious injury." Following joinder of issue, defendant sought summary dismissal of the complaint on the ground that plaintiff had not sustained a serious injury within the meaning of the No-Fault Law.

In support of her motion, defendant submitted two reports of the doctor, Vadim Miloradovich, who treated plaintiff for several months immediately following the accident. Initially, Dr. Miloradovich diagnosed plaintiff with "[a]nterior spur formation of C5-C6 and C6-C7 disc," traumatic herniation of the disc (C4-C5, C5-C6, C6-C7 and L2-L3) and "[d]isc bulge L3- L4," and opined that plaintiff's injuries were a direct result of the accident. Several months later, however, in his "Final Report," Dr. Miloradovich noted that "any degenerative condition that existed prior to [plaintiff]'s current trauma ha[d] served to destabilize the spine" and that "although the return to ' Base line' ha[d] been achieved, prior existing conditions may continue with limited symptomatology." Having determined that therapy would no longer benefit plaintiff, Dr. Miloradovich discharged plaintiff in December 2000 "with instruction to continue physical therapy and exercise at home for maintenance and to preclude exacerbation."

Defendant also proffered the report of orthopedic surgeon Robert Orlandi, who conducted a physical examination of plaintiff on June 25, 2002 and reviewed his medical records, including reports of MRIs of his cervical and lumbar spine. Dr. Orlandi reported that the MRI reports of plaintiff's spine revealed degenerative conditions, including a "pre-existent spondylitic spur formation at C5/C6 and C6/C7" and disc desiccation at L2/L3 which was indicative of degenerative disc disease. He concluded that his orthopedic examination did not "document the presence of permanent residuals or a musculoskeletal disability."

Plaintiff rejoined with the affidavit of Dr. Emmanuel Lambrakis, who explained that he had treated plaintiff since August 30, 2001 -- beginning more than a year after the accident. Dr. Lambrakis averred that his November 21, 2002 physical examination of plaintiff -- conducted after defendant's motion -- revealed specific numerical deficiencies in plaintiff's extension, flexion and rotation of the cervical and lumbar spine. In addition, Dr. Lambrakis noted that he found "severe muscle spasms in the cervical spine with excruciating pain when compressing C3 and C7" and that "[t]he pain complained of and the loss of motion in the cervical spine is completely consistent with the disc herniations diagnosed at C4, 5, 6 and 7, as well as the anterior spur formation on C5, 6 and 7, after MRIs of the cervical spine were conducted after the accident." He also explained that "the degree of pain exhibited by the plaintiff with regard to his lumbar spine is consistent with the herniated disc at L2-L3, as well as a protrusion bulge on the L3-L4 level," also diagnosed after an MRI. Dr. Lambrakis opined to a reasonable degree of medical certainty that plaintiff "sustained permanent severe partial disabilities as a result of the motor vehicle accident."

Based on these submissions, Supreme Court granted defendant's motion and dismissed the complaint. The Appellate Division unanimously affirmed. We granted leave and now affirm.

As in Pommells and Brown, defendant's submissions shifted to plaintiff the burden of coming forward with evidence indicating a serious injury causally related to the accident. Unlike Brown, however, defendant presented evidence of a pre- existing degenerative disc condition causing plaintiff's alleged injuries, and plaintiff failed to rebut that evidence sufficiently to raise an issue of fact.

Dr. Orlandi, after physically examining plaintiff and reviewing prior medical records, including MRIs and x-rays, concluded that the pain in areas identified as herniated by Dr. Miloradovich was caused by pre-existing and degenerative conditions. Even plaintiff's original doctor, Dr. Miloradovich, noted, in his final report, that plaintiff's pain was related to a prior condition.

While plaintiff provided Dr. Lambrakis's expert's report of specific losses of range of motion in plaintiff's spine, opining that plaintiff suffered serious and permanent injuries which were causally related to the accident ( Lopez v Senatore, , 65 NY2d 1017, 1020 [1985]), plaintiff did not refute defendant's evidence of a pre-existing degenerative condition. To the contrary, the Lambrakis report supplied by plaintiff explained that the pain and loss of range of motion in the cervical spine was entirely consistent with those formations identified by the MRI and set forth by Drs. Miloradovich and Orlandi as related to a degenerative condition. In this case, with persuasive evidence that plaintiff's alleged pain and injuries were related to a pre-existing condition, plaintiff had the burden to come forward with evidence addressing defendant's claimed lack of causation. In the absence of any such evidence, we conclude -- as did the trial court and Appellate Division -- that defendant was entitled to summary dismissal of the complaint ( see Franchini, 1 NY3d at 537; see also Licari v Elliot, , 57 NY2d 230, 237 [1982]).

Accordingly, in Pommells v Perez and Carrasco v Mendez, the orders of the Appellate Division should be affirmed, with costs, and in Brown v Dunlap, the order of the Appellate Division should be reversed, with costs, and defendants' motions for summary judgment denied.