COLLINS v. STONE

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Docket Number

2004-00002.

Attorney(S)

Abrams, Gorelick, Friedman Jacobson, P.C., New York, N.Y. (Barry Jacobs of counsel), for appellants.

Judges

Nancy E. Smith
Reinaldo E. Rivera

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Smart Summary

Factual and Procedural Background

This case arises from an action to recover damages for personal injuries sustained by the plaintiff, Tammy Collins, allegedly resulting from an accident on May 10, 1996. The defendants, Sheridan Stone et al., moved for summary judgment dismissing the complaint, which the Supreme Court, Queens County, granted in an order dated May 19, 2003. The plaintiff subsequently moved for leave to reargue the defendants' motion, which was granted, leading to the vacatur of the May 19, 2003 order and denial of the summary judgment motion. The defendants appealed from this reargument order.

Legal Issues Presented

Whether the Supreme Court erred in granting the plaintiff's motion for leave to reargue the defendants' prior motion for summary judgment.
Whether the plaintiff raised a triable issue of fact regarding sustaining a serious injury within the meaning of Insurance Law § 5102(d) as a result of the May 10, 1996 accident.

Arguments of the Parties

Defendants' Arguments

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury as required by Insurance Law § 5102(d), supporting their motion for summary judgment.
Affirmed medical reports from two orthopedists showed no loss of range of motion and that the plaintiff’s injuries had resolved.
One orthopedist attributed the plaintiff’s neck and back pain recurrence to a separate accident in 2001, not the subject accident.
The plaintiff’s own bill of particulars acknowledged only one day of confinement to bed and home after the accident, undermining claims of serious injury.

Plaintiff's Arguments

The plaintiff submitted an affirmed orthopedist’s report quantifying loss of range of motion based on an examination in 2003.
The plaintiff’s orthopedist did not have access to prior medical reports and did not account for the 2001 accident, limiting the reliability of the opinion.
The plaintiff submitted a radiologist’s report describing MRI findings consistent with disc herniation and disc bulging, but the radiologist did not express an opinion on causation.
The plaintiff’s orthopedist noted the need for additional medical records and MRI reports but did not obtain them or offer causation opinions related to the MRI defects.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pryor v. Commonwealth Land Tit. Ins. Co., 1 A.D.3d 494	Standards for granting leave to reargue under CPLR 2221(d)(2)	The court held that the plaintiff did not establish a misapplication of law or facts warranting reargument.
Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345	Definition and requirements for establishing a serious injury under Insurance Law § 5102(d)	Used to evaluate the defendants’ prima facie showing that the plaintiff did not sustain a serious injury.
Gaddy v. Eyler, 79 N.Y.2d 955	Clarification of the serious injury threshold in personal injury claims	Supported the conclusion that the plaintiff failed to raise a triable issue of fact on serious injury.
Mahoney v. Zerillo, A.D.3d [2d Dept, Apr. 5, 2004]	Consideration of prior accidents and medical history in injury claims	Referenced to highlight the plaintiff’s orthopedist’s failure to account for a subsequent accident in 2001.
Allyn v. Hanley, 2 A.D.3d 470	Requirement for comprehensive medical evidence in personal injury claims	Used to emphasize the insufficiency of the plaintiff’s medical evidence and failure to obtain prior medical records.

Court's Reasoning and Analysis

The court determined that the Supreme Court erred in granting the plaintiff’s motion for leave to reargue because the plaintiff failed to show that the original order misapplied the law or facts. The defendants had established a prima facie case that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), supported by two orthopedists’ affirmed medical reports showing no loss of range of motion and resolution of injuries. The plaintiff’s evidence was insufficient to raise a triable issue of fact because the plaintiff’s orthopedist’s report lacked consideration of the plaintiff’s more recent accident and did not include necessary medical records or causation opinions related to MRI findings. The radiologist’s MRI report did not address causation, further weakening the plaintiff’s case. Consequently, the court reinstated the original summary judgment order dismissing the complaint.

Holding and Implications

The order granting the plaintiff's motion for leave to reargue is reversed, the motion for reargument is denied, and the original order dated May 19, 2003, granting summary judgment dismissing the complaint is reinstated.

This decision directly affects the parties by affirming dismissal of the plaintiff’s complaint for failure to establish a serious injury. No new legal precedent was established; the court applied existing standards for summary judgment and serious injury assessment under New York law.

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TAMMY COLLINS, respondent, v. SHERIDAN STONE, ET AL., appellants.

DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion for reargument is denied, and the order dated May 19, 2003, is reinstated.

The Supreme Court erred in granting the plaintiff's motion for leave to reargue. The plaintiff did not establish that the Supreme Court misapplied the law or the facts in its original order dated May 19, 2003 ( see CPLR 2221[d][2]; Pryor v. Commonwealth Land Tit. Ins. Co., 1 A.D.3d 494).

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident which occurred on May 10, 1996 ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v. Eyler, 79 N.Y.2d 955). Based upon the affirmed medical reports of two orthopedists who examined the plaintiff on April 12, 1997, and November 4, 2002, respectively, there was no evidence of loss of range of motion. The orthopedist who examined the plaintiff on November 4, 2002, found that the plaintiff had full range of motion in her cervical and lumbosacral spine, and shoulders, and that all of the plaintiff's injuries from the subject accident had been "resolved." The orthopedist also found that the plaintiff suffered a recurrence of neck and back pain as a result of a second accident on November 18, 2001, which also appeared to have been "resolved." The plaintiff acknowledged in her bill of particulars that she was "confined to her bed and home for one day following the date of the accident."

In opposition, the plaintiff submitted the affirmed report of an orthopedist (hereinafter the plaintiff's orthopedist) who quantified loss of range of motion of the cervical and lumbar spine based upon a medical examination he performed on February 4, 2003. The plaintiff's orthopedist acknowledged that "[n]o reports are available to review" and did not take into account the plaintiff's history of having been involved in a more recent accident in November 2001, when she injured her neck and back ( see Mahoney v. Zerillo, A.D.3d [2d Dept, Apr. 5, 2004]; Allyn v. Hanley, 2 A.D.3d 470).

The plaintiff also submitted the affirmed report of a radiologist stating that a magnetic resonance imaging (hereinafter MRI) of the cervical spine taken on July 17, 1996, showed a "defect" consistent with central disc herniation and "posterior disc bulging with ventral extradural defects on [the] thecal sac" at C4-5 and C6-7. However, the radiologist expressed no opinion with respect to causation. In addition, the plaintiff's orthopedist noted that there was a "[n]eed to obtain the reports of the cervical and lumbosacral MRI's, as well as the previous medical records from the office where [the plaintiff] was treated." There was no indication in the record that this was done and the plaintiff's orthopedist did not express an opinion as to the cause of the "defects" observed on the cervical MRI.

Accordingly, the plaintiff failed to raise a triable issue of fact. Thus, the Supreme Court improperly vacated the order dated May 19, 2003, granting the defendants' motion for summary judgment dismissing the complaint.

SMITH, J.P., GOLDSTEIN, ADAMS, RIVERA and LIFSON, JJ., concur.