Eric Cisler, Plaintiff, v. JOEL JOHNSTON JACK STRAIGHT STRAIGHT SEPTIC SERVICE SHAWN ARRUDA (2026)

The plaintiff was involved in a motor vehicle accident in April 2019 ("Clifton Park Accident"), as well as a subsequent motor vehicle accident in August 2020 ("Queensbury Accident"). After he commenced this action against the drivers and owners of the vehicles involved in these two accidents, the plaintiff was involved in a third motor vehicle accident in December 2023 ("Third Accident"), which is the subject of a separate lawsuit (see NYSCEF, Schenectady County Supreme Court, Index No. 2025-2066, Eric Cisler v David Mix et al.).

Following the completion of discovery in this action, the driver and owner of the vehicle involved in the Clifton Park Accident (the "Johnstons") moved for summary judgment dismissing the claims against them on the ground that the plaintiff did not sustain a serious injury, as defined in Insurance Law § 5102 (see e.g. Williams v Ithaca Dispatch, Inc., 232 AD3d 1165 [3d Dept 2024]; Lemieux v Horn, 209 AD3d 1100 [3d Dept 2022], affd 39 NY3d 1108 [2023]; Mesiti v Martin, 190 AD3d 1145 [3d Dept 2021]).¹ In support of their motion, the Johnstons have relied upon, among other things, medical and chiropractic records, an IME report, and a detailed affirmation from a licensed physician certified in orthopedic surgery. The expert affirmation and the IME report provide a detailed discussion of the plaintiff's medical records, attribute the alleged injuries to pre-existing conditions, and conclude that the plaintiff did not sustain a serious injury from the Clifton Park Accident. The evidence submitted also indicates that, following the Clifton Park Accident in April 2019, the plaintiff was not hospitalized; he did not suffer any fractures; he missed only one full day of work; and he could perform most, if not all, of his daily activities following the accident. The medical and chiropractic records provided also do not contain sufficient objective evidence to support the finding of a serious injury. The Court therefore finds that the Johnstons have met their initial burden on the motion, subject to further consideration of the specific challenges made by the plaintiff in his opposition papers (discussed below).

In opposition, the plaintiff relies on, among other things, deposition transcripts, medical records, an expert report from his chiropractor, and an expert report from a licensed physician certified in orthopedic surgery. The opposition papers assert five specific grounds for denying the motion. They are as follows:

Issue No. I: The plaintiff first contends that the expert medical opinions relied upon by the Johnstons lack any probative value because they are based on a review of uncertified copies of medical and chiropractic records. This contention is contrary to controlling case law. Where, as here, a defendant seeks summary judgment in a motor vehicle accident case, he or she may rely upon uncertified medical and chiropractic records to meet his or her initial burden of showing that the plaintiff did not sustain a serious injury (see Fillette v Lundberg, 150 AD3d 1574, 1577 n 2 [3d Dept 2017]; Martin v LaValley, 144 AD3d 1474, 1475 [3d Dept 2016]; Womack v Wilhelm, 96 AD3d 1308, 1309 [3d Dept 2012]).

Issue No. 2: The plaintiff next contends that the IME report relied upon by the Johnstons in support of their motion creates a triable issue of fact as to whether he sustained a serious injury from the Clifton Park Accident. This contention, however, is erroneously based on a selective and incomplete reading of the IME report. While the report states that the plaintiff sustained some injuries as a result of the Clifton Park Accident, it falls far short of opining that any of the injuries qualify as a serious injury. In fact, the sentence of the report relied upon by the plaintiff (which is contained on page 6 of the report) is much more limited in scope. It reads, as follows: "it appears the claimant sustained injuries of the cervical spine, lumbar spine, and thoracic spine with his initial injury of 4/16/19 that required chiropractic care, nothing more significant" (see NYSCEF, Document No. 89, at p. 6 [emphasis added]). The report further concludes that the Clifton Park Accident did not cause a serious injury (see NYSCEF, Document No. 89, at p. 7 [" it does not appear that the injury of 4/16/19 [satisfies] the definition of serious injury, given the significant pre-existing conditions"]).

Contrary to the plaintiff's contention, the IME report itself does not opine that the Clifton Park Accident from April 2019 exacerbated or aggravated the plaintiff's prior pre-existing conditions. Rather, the report merely opines in general terms that the plaintiff's pre-existing conditions and/or his cervical and lumber spine "where impacted upon by the motor vehicle accident of 4/16/19" (NYSCEF, Document No. 89, at pp. 6-7). Again, the IME report does not find that this "impact" was significant enough to qualify as a serious injury. On the contrary, the report finds that the "impact" (if any) was very limited and insufficient to qualify as a serious injury.

Issue No. 3: The plaintiff next contends that his objective range of motion measurements from 2019 demonstrate the existence of a serious injury, namely, a "significant limitation of use of a body function or system" (Insurance Law § 5102 [d]). To satisfy the threshold for this category of serious injury, however, there must be "objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing the plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system, and the proof must show those limitations to be more than mild, minor or slight" (Williams, 232 AD3d at 1166, quoting Lemieux, 209 AD3d at 1101; see Scarincio v Cerillo, 195 AD3d 1266, 1267 [3d Dept 2021]).

Here, both the Johnstons' expert and the IME physician reviewed the range of motion measurements. Neither found them indicative of a significant limitation. In fact, the Johnstons' expert expressly found that the chiropractor's records in June 2019 (approximately two months after the accident) showed that "the plaintiff's cervical and lumbar range of motion were documented as either being within the normal limit range of motion or showed an improvement over the documented findings prior to the accident" (NYSCEF, Document 90, at paragraph 15). While the plaintiff's counsel disputes the accuracy of the expert's opinion, the chiropractic records nevertheless show that the objective measurements displayed an alleged loss of motion range in only a few categories in June 2019, and that the plaintiff no longer had any loss of range of motion in any of the categories objectively measured in August and September 2019 (when compared to the "normal" measurements cited by the plaintiff and/or the similar measurements taken before the accident). In fact, the chiropractic records indicate that no objective measurements were taken in October 2019 or November 2019; and that the plaintiff last sought chiropractic care for the accident in November 2019 (see NYSCEF Document No. 93 & 121, at SOMF No. 9).

Further, although the plaintiff contends that his limited range of motion in June 2019 and July 2019 met the threshold objective standard required for a serious injury claim, the Court disagrees. As explained by the Third Department, while "permanency of limitation is not required[,] evidence that a plaintiff's range of motion has significantly improved or returned to normal will preclude a finding of a significant limitation of use" (Rosenblum v Irby, 194 AD3d 1147, 1148 [3d Dept 2021]; see Shackett v Nappi, 75 AD3d 709, 710 [3d Dept 2010]; Pugh v DeSantis, 37 AD3d 1026, 1029 [3d Dept 2007]; see also Scheer v Koubek, 70 NY2d 678 [1987]; Thrall v City of Syracuse, 60 NY2d 950 [1983]). Here, the objective evidence demonstrates that these alleged limitations in the plaintiff's range of motion significantly improved or returned to normal in August 2019, as well as in September 2019. As such, the measurements from June and July 2019 do not, by themselves, create an issue of fact.

Issue No. 4: The plaintiff also contends that a triable issue of fact exists based on his attorney's comparison of the results from the medical imaging taken before and after the accident. As with the range of motion measurements, both Johnstons' expert and the IME physician considered the imaging results from before and after the accident, and neither found them indicative of a serious injury. They found this imaging to be similar in comparison, reflective of pre-existing conditions, and insufficient to establish that the Clifton Park Accident in April 2019 caused a serious injury.² Moreover, to the extent that the plaintiff contends that any alleged material differences exist in the imaging results, the Court has reviewed the imaging results and will consider this issue further when reviewing the plaintiff's expert reports (addressed below).

Issue No. 5: Lastly, the plaintiff contends that his expert reports create a triable issue of fact as to whether he sustained a significant limitation of use of his cervical and/or lumber spine. As discussed above, the defendants satisfied their initial burden on the motion. The burden therefore "shifted to plaintiff to come forward with objective medical evidence sufficient to create a question of fact regarding the existence of a serious injury caused by the accident" (Williams, 232 AD3d at 1167-1168 [internal quotation marks and citations omitted]). Where a defendant has demonstrated that the plaintiff has preexisting conditions, "the plaintiff must provide objective medical evidence distinguishing the preexisting condition from the injuries claimed to have been caused by the accident underlying the action" (id. at 1168 [internal quotation marks, brackets, and citations omitted]).

Here, the plaintiff mistakenly asserts that the report from his expert physician (Dr. Hausmann) finds that the plaintiff's "pre-existing cervical and lumbar conditions were aggravated, accelerated and exacerbated by the Johnston Accident" in April 2019 (NYSCEF, Document No 120, at p. 23). On the contrary, the report merely finds that the plaintiff suffered a "strain" and that a "large disc osteophyte complex at C6-7 with disc herniation [was] clearly aggravated by the second accident with some contribution from his first accident" (NYSCEF, Document No. 112, at p. 6). The finding of a strain, by itself, does not establish a serious injury. In addition, the finding of "some contribution" is also insufficient, as this finding is conclusory and rests on a comparison of imaging results taken after the first accident with imaging results taken after the second accident (i.e., a comparison of imaging from July 2019 with imaging from December 2020), without any discussion of the 2018 x-rays or explanation regarding how the Clifton Park Accident allegedly contributed to or otherwise caused a serious injury (see e.g. Lemieux, 209 AD3d at 1102-1103, affd 39 NY3d 1108; Iannillo v Felberbaum, 198 AD3d 1247, 1251 [3d Dept 2021]).

In addition, the plaintiff's expert physician mistakenly relies on the range of motion test measurements from June and July 2019, while completely ignoring the results from August and September 2019. As explained above, the measurements evidencing a limited reduction in a range of motion during these two months are insufficient to satisfy the significant limitation category of serious injury (see e.g. Rosenblum, 194 AD3d at 1148; Shackett, 75 AD3d at 710; Pugh, 37 AD3d at 1029). Moreover, the so-called "limitations" in the plaintiff's activities of daily living noted in the chiropractic records (based upon the plaintiff's subjective complaints) are similarly insufficient to create an issue of fact as they do not constitute "objective medical evidence" required to allow the claim to proceed to trial.³

Similarly, the report from the plaintiff's chiropractor (NYSCEF Document No. 118) does not create a triable issue of fact. As discussed above, the objective measurements taken in June and July 2019 by the chiropractor are insufficient, by themselves, to establish a serious injury. The chiropractor also does not provide any meaningful analysis to causally relate the Clifton Park Accident to a serious injury. Rather, the chiropractor opines that "the majority of the cervical central canal and neural foraminal narrowing [was] due to degenerative disc disease," and further notes that the lumbar MRI showed "Grade 1 retrolisthesis of L1 on L2 without spondylolysis," yet adds only conclusory opinions that these conditions "could have been" caused or exacerbated by the Clifton Park Accident. This opinion is not based on a reasonable degree of medical certainty, nor does it provide any explanation as to how such conditions could have been caused or exacerbated by the Clifton Park Accident. The chiropractor report (as it relates to the Clifton Park Accident) also focuses on results of the medical imaging taken after the accident, while failing to meaningfully discuss the two x-rays from May 2018 and the plaintiff's preexisting conditions.

The motion seeking summary judgment (Motion No. 2) is therefore GRANTED and the complaint is DISMISSED as against Defendants, Michelle Johnston and Joel Johnston.

This shall constitute the Decision & Order of the Court. The Court is hereby uploading the original into the NYSCEF system for filing and entry by the County Clerk. The Court further directs the parties to serve notice of entry in accordance with the Local Protocols for Electronic Filing for Saratoga County.

So-Ordered.

Dated: June 5, 2026

at Ballston Spa, New York

HON. RICHARD A. KUPFERMAN

Justice Supreme Court

Enter.

FOOTNOTES

1.   Another defendant in this action, Shawn Arruda, has also moved for summary judgment. As that motion concerns the Queensbury Accident from August 2020, the Court has addressed the merits of that motion in a separate written decision to avoid confusion.

2.   For example, an x-ray of the plaintiff's lumbar spine was taken on May 22, 2018, for "[l]ow back pain for 10 years. old hockey injury" and demonstrated "[m]ild-moderate disc space narrowing at T12-L1 and L1-2 and mild disc space narrowing at L3-4 with associated disc osteophyte complexes. 7 mm of retrolisthesis at L1-2 and 5 mm of retrolisthesis at L2-3. No spondylolysis." The impression was mild-moderate multilevel degenerative disc disease and grade 1 retrolisthesis at L1-2 and L2-3 (see NYSCEF Document No. 82, at numbered page 12).

3.   The plaintiff does not claim in his opposition papers that an issue of fact exists regarding the 90/180-day category for a serious injury (see NYSCEF Document No. 120, at p. 21 n 2 [Plaintiff's MOL]), and even if he had opposed the motion on this ground, these chiropractor notations would not be sufficient to create an issue of fact based on the controlling case law (see e.g. Lemieux v Horn, 209 AD3d 1100, 1101 [3d Dept 2022], affd 39 NY3d 1108 [2023]; Rosenblum v Irby, 194 AD3d 1147, 1150 [3d Dept 2021]; Shackett v Nappi, 75 AD3d 709, 710 [3d Dept 2010]).

Richard A. Kupferman, J.