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Rose v. Furgerson3/22/2001
Appeal from an order of the Supreme Court (Dowd, J.), entered January 11, 2000 in Otsego County, which, inter alia, denied defendant's motion for summary judgment dismissing the complaint.
On September 25, 1997, plaintiff was involved in an accident wherein the automobile he was driving was struck from behind by a vehicle owned and operated by defendant. Following the accident, plaintiff drove himself home and his wife took him to the hospital. After outpatient treatment at the hospital, which included X rays, plaintiff, wearing a neck brace, was released. Plaintiff missed one day of work as a result of the accident. In addition to his treatment at the emergency room, plaintiff sought the treatment of Anthony Cicoria, an orthopedist, immediately following the accident and was first seen by him on November 7, 1997. Upon examination, Cicoria found tenderness in plaintiff's neck as well as muscle spasms. James McChesney, the radiologist who performed an MRI on plaintiff on November 17, 1997, concluded that plaintiff showed evidence of early bulging of the disc at the C5-6 level "without significant consequences", as well as a minimal degree of subligamentous extrusion at the C6-7 level "with no significant compromise of the canal in the midline". Plaintiff returned to Cicoria on November 26, 1997 and, after reviewing the MRI, Cicoria diagnosed plaintiff as having a flexion/extension to the cervical spine and herniated discs at C5-6 and C6-7. In a third visit on January 14, 1998, Cicoria indicated that plaintiff was making slow, steady improvement, and noted that massage therapy seemed to be helping. At that time, he was of the opinion that it was too soon to determine whether the herniated discs would present problems in the future.
In July 1998, plaintiff commenced this personal injury action alleging injuries to, inter alia, his neck, back and herniated discs in his cervical spine which constitute "serious injury" under three of the four categories set forth in Insurance Law §5102 (d), namely, "permanent consequential limitation of use of a body organ or member", "significant limitation of use of a body function or system" and a "medically determined injury or impairment of a non-permanent nature" which prevented him from performing substantially all of his usual daily activities for at least 90 of the first 180 days following the accident. Following joinder of issue, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment seeking a determination that defendant was solely liable for the accident. Supreme Court denied both motions and defendant appeals.
With respect to plaintiff's claims under the permanent consequential limitation and significant limitation of use categories contained in Insurance Law §5102 (d), defendant had the initial burden of showing that plaintiff did not suffer a "serious injury" within the meaning of the statute (see, Gaddy v Eyler, 79 NY2d 955, 956-957; Barbarulo v Allery, 271 AD2d 897, 898). Defendant submitted the report by Farouq Al-Khalidi, an orthopedist, who performed an independent medical examination on December 29, 1998. While Al-Khalidi diagnosed plaintiff as suffering from degenerative disc disease at C5-6 and C6-7, he opined that this condition was of pre-existing origin which could have been temporarily aggravated by the accident Al-Khalidi opined that plaintiff's condition at the time of his examination had reverted to the status of mild or intermittent symptoms in the interscapular region that were subjective in nature. Defendant also submitted the transcript of plaintiff's deposition wherein he testified that, after the accident, he continued to play racquetball once or twice a we
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