State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 10, 2016 521579 

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MARSHA J. SHEA et al.,

Appellants,

v MEMORANDUM AND ORDER

STEVEN C. IVES et al., 

Respondents.

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Calendar Date: January 14, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

Tabner, Ryan & Keniry, LLP, Albany (Thomas R. Fallati of

counsel), for appellants.

Law Office of Theresa J. Puleo, Albany (Shannon K.

Starowicz of counsel), for respondents.

__________

McCarthy, J.P.

Appeal from an order and judgment of the Supreme Court

(Ferreira, J.), entered June 9, 2015 in Albany County, which

granted defendants' motion for summary judgment dismissing the

complaint.

Plaintiff Marsha J. Shea and defendant Stephen C. Ives were

involved in a car accident. Shea and her husband, derivatively,

brought this negligence action against defendants, alleging that

Shea sustained serious injuries to her right knee, left hip,

back, neck and left ear as a result of the accident and economic

loss greater than basic economic loss. Supreme Court thereafter

granted defendants' motion for summary judgment and dismissed the

complaint. Plaintiffs appeal and argue that summary judgment was

improper in regard to Shea's knee injury. We affirm. 
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Turning first to the permanent consequential limitation and

significant limitation statutory categories (see Insurance Law §

5102 [d]), "'[w]hether a limitation of use or function is

significant or consequential' (i.e., important . . .) relates to

medical significance and involves a comparative determination of

the degree or qualitative nature of an injury based on the normal

function, purpose and use of the body part'" (Toure v Avis Rent A

Car Sys., 98 NY2d 345, 353 [2002], quoting Dufel v Green, 84 NY2d

795, 798 [1995]). An orthopedic surgeon averred that, based on

multiple observations, including that Shea could bend her knee

beyond 90 degrees, the knee was "objectively normal." This proof

satisfied defendants' burden by establishing that there was no

comparative loss of the normal function, purpose and use of

Shea's knee. Plaintiffs failed to raise a triable issue of fact. 

Plaintiffs' medical proof, an affidavit from an orthopedist, did

not provide a quantitative or qualitative comparison of Shea's

knee to the normal function, purpose and use of a knee (see

Howard v Espinosa, 70 AD3d 1091, 1094 [2010]; Felton v Kelly, 44

AD3d 1217, 1219 [2007]). 

Defendants also established, in regard to the

aforementioned statutory categories, that summary judgment was

appropriate based on causation. Once a defendant provides

evidence establishing a preexisting condition, a plaintiff must

provide "'objective medical evidence distinguishing [a]

preexisting condition from the injuries claimed to have been

caused by the [instant] accident'" (Thomas v Ku, 112 AD3d 1200,

1201 [2013], quoting Falkner v Hand, 61 AD3d 1153, 1154-1155

[2009]). Defendants put forward proof establishing a preexisting

degenerative knee condition based on, among other things, Shea's

reports – some made years prior to the accident – of pain in her

right knee and a radiologist's opinion that Shea suffered from a

preexisting degenerative arthritic condition, affecting her right

knee, that was unrelated to the accident. Although plaintiffs'

submissions included the opinion of the orthopedist who opined

that the accident caused the present knee problems, the

orthopedist provided no factual explanation distinguishing Shea's

preexisting knee condition (see Thomas v Ku, 112 AD3d at 1201;

Falkner v Hand, 61 AD3d at 1155).

Finally, summary judgment was properly granted in regard to
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the 90/180-day category of serious injury. Treatment records

from after the accident reveal that Shea was discharged from the

hospital on the day of the accident with instructions to take

Tylenol. Shea's treatment records following the accident do not

impose any restrictions on work or other activities. Shea's

physical therapy evaluations reflect that, within approximately

two months of the accident, Shea reported playing golf. This

evidence satisfied defendants' prima facie burden. Given that

Shea was unable to provide objective medical evidence to support

her self-serving assertions that she was "prevented from

performing substantially all of the material acts that

constituted [her] usual and customary daily activities" for the

relevant period, plaintiffs' submissions failed to raise a

question of fact regarding the 90/180-day category (Amamedi v

Archibala, 70 AD3d 449, 450 [2010], lv denied 15 NY3d 713 [2010];

see Clausi v Hall, 127 AD3d 1324, 1327 [2015]). Accordingly,

Supreme Court properly granted defendants' motion for summary

judgment dismissing the complaint. 

Garry, Lynch, Devine and Clark, JJ., concur.

ORDERED that the order and judgment is affirmed, with

costs.

ENTER:

Robert D. Mayberger

Clerk of the Court