SHEA v. JOHNSON (2008)

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated February 27, 2007, as denied his motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Edith M. O'Shea and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed insofar as appealed from, with costs to the defendant payable by the plaintiff Edith M. O'Shea.

The plaintiff Thomas J. O'Shea was operating a motor vehicle in which his wife, the plaintiff Edith M. O'Shea, was a passenger, when the vehicle was struck from behind by a motor vehicle operated by the defendant.   After the plaintiffs commenced this action, the defendant moved for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

 The affirmed medical report prepared by Dr. Loren E. Rosenthal, a neurologist, which the defendant submitted in support of his motion insofar as it concerned Mr. O'Shea, failed to establish, prima facie, that he did not sustain a serious injury (see Tchjevskaia v. Chase, 15 A.D.3d 389, 790 N.Y.S.2d 175).   Indeed, the report actually identified a triable issue of fact (see CPLR 3212[b] ) as to whether Mr. O'Shea exhibited significant limitations in cervical range of motion as a result of the accident (see Insurance Law § 5102[d] ).  Under these circumstances, it is not necessary to consider the sufficiency of the plaintiffs' submissions with regard to Mr. O'Shea (see Tchjevskaia v. Chase, 15 A.D.3d at 389, 790 N.Y.S.2d 175).

 However, the affirmed medical report which Dr. Rosenthal prepared with regard to his examination of Mrs. O'Shea established, prima facie, that her injuries were not serious within the statutory definition (see Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The affirmed medical report prepared by Dr. Arnold Goran, which was submitted in opposition to the motion insofar as it concerned Mrs. O'Shea, failed to raise a triable issue of fact.   Dr. Goran found that she had full range of motion when he first examined her two months after the accident, and again almost six months after the accident.   While Dr. Goran found a 20% reduction in range of motion in Mrs. O'Shea's cervical spine nearly 18 months after the accident, he failed to causally relate that limitation to the accident (see Verrelli v. Tronolone, 230 A.D.2d 789, 646 N.Y.S.2d 542) or to explain the apparent inconsistency in his findings (see Doran v. Sequino, 17 A.D.3d 626, 627, 795 N.Y.S.2d 245).   Accordingly, the court should have granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by Mrs. O'Shea on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).