State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 519962 

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KEVIN P. MOLESKY et al.,

Appellants,

v MEMORANDUM AND ORDER

CYNTHIA MARRA et al.,

Respondents. 

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Calendar Date: June 1, 2015

Before: Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

__________

Feeney, Centi & Mackey, Albany (L. Michael Mackey of

counsel), for appellants.

Bailey, Kelleher & Johnson, PC, Albany (Vincent J.

DeLeonardis of counsel), for respondents.

__________

Lahtinen, J.P.

Appeal from an order of the Supreme Court (Zwack, J.),

entered July 28, 2014 in Albany County, which, among other

things, granted defendants' motion for summary judgment

dismissing the complaint.

In July 2011, plaintiffs' vehicle was stopped at an

intersection when a vehicle operated by defendant Cynthia Marra

contacted their vehicle from the rear at a low rate of speed,

which did not damage plaintiffs' vehicle. The parties exchanged

insurance information and departed, with no one summoning an

ambulance or police. Approximately a year later, plaintiffs

commenced this action claiming that they had both sustained

serious injuries in the accident. Disclosure revealed, among

other things, that both plaintiffs had various preexisting
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conditions such that, when in their early 40s about five years

before the accident, each had received disability retirements

from government jobs. Also, plaintiff Kevin P. Molesky had

previously brought a lawsuit for similar injuries as alleged here

following a 2002 motor vehicle accident, and plaintiff Michele D.

Molesky had received a settlement for neck and back injuries

allegedly suffered in a 1994 motor vehicle accident. Defendants

moved for summary judgment asserting, among other things, that

neither plaintiff sustained a serious injury (see Insurance Law §

5102) causally related to this accident. Plaintiffs cross-moved

for summary judgment on the issue of liability. Supreme Court

granted defendants' motion and denied plaintiffs' cross motion. 

Plaintiffs appeal.

Defendants met their threshold burden with respect to both

plaintiffs by submitting proof, including competent medical

evidence, establishing that neither plaintiff suffered a serious

injury caused by this accident (see Toure v Avis Rent A Car Sys.,

98 NY2d 345, 352 [2002]; Raucci v Hester, 119 AD3d 1044, 1044

[2014]; Cole v Roberts-Bonville, 99 AD3d 1145, 1146 [2012]). 

Defendants offered detailed and lengthy reports from Harvey

Seigel, a physician who examined both plaintiffs, as well as

their respective medical records. With regard to Kevin Molesky,

Seigel noted that he had undergone a C5-6 anterior cervical

discectomy in 2002 after another motor vehicle accident. At Kevin

Molesky's deposition of the action arising from the 2002 motor

vehicle accident, he testified that he suffered from a herniated

disc at both C5-6 and C6-7, but that C6-7 was not repaired during

his 2002 surgery because his surgeon, Darryl DiRisio, felt it was

not damaged enough to repair. An X ray from such time showed

disc space was narrowing between C6-7, where Kevin Molesky

eventually had surgery in November 2011. Seigel noted that Kevin

Molesky admitted no neck pain immediately after the accident, and

he did not seek treatment for five weeks after the accident. 

Seigel stated that if the low-impact accident had caused the

alleged damage to Kevin Molesky's cervical spine, he would have

experienced immediate pain and needed treatment much sooner than

five weeks after the accident. In Seigel's opinion, the November

2011 surgery "had absolutely nothing to do with" the July 2011

accident, but was "the natural progression of the multilevel

degenerative disease noted as far back as 2002, which was
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accelerated due to the December 2002 fusion surgery." Although

Kevin Molesky submitted an affirmation from DiRisio, his surgeon

in 2002 and 2011, opining that the November 2011 surgery was the

result of an injury sustained in the July 2011 accident, DiRisio

failed to sufficiently and objectively distinguish the purported

recent injury from the prior injury or adequately indicate that

the accident exacerbated a preexisting condition (see Dudley v

Imbesi, 121 AD3d 1461, 1462 [2014]; Thomas v Ku, 112 AD3d 1200,

1201 [2013]; Russell v Cornell Univ., 110 AD3d 1236, 1237-1238

[2013]). 

Turning to Michele Molesky, Seigel pointed out that her

extensive medical records revealed prior accidents that resulted

in back injuries, and that she had been under more than 10 years

of ongoing care for neck and back pain prior to the July 2011

accident. Her condition had provided the basis for her to

receive a state disability retirement, as well as Social Security

disability. Seigel noted that less than two weeks before the

accident, she had undergone multiple rhizotomy procedures to

treat her back, leg and neck pain. He opined that she sustained,

at most, "a very minor exacerbation" of her longstanding chronic

neck and back problems. While DiRisio believed that Michele

Molesky's subjective complaints resulted from the accident,

Michele Molesky failed to submit sufficient objective evidence of

a medically determined serious injury related to the subject

accident (see Falkner v Hand, 61 AD3d 1153, 1155 [2009]; see also

Cole v Roberts-Bonville, 99 AD3d at 1148; Creech v Walker, 11

AD3d 856, 857 [2004]). The remaining arguments have been

considered and are not persuasive.

Egan Jr., Devine and Clark, JJ., concur.
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ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court