SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1304 

CA 13-00161 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ. 

 

ERIC M. FISHER AND DENISE E. FISHER, 

PLAINTIFFS-RESPONDENTS, 

V MEMORANDUM AND ORDER

NATHANIEL C. HILL AND MELINDA J. HILL, 

DEFENDANTS-APPELLANTS. 

 

LAW OFFICES OF KAREN LAWRENCE, PITTSFORD (BARNEY F. BILELLO OF

COUNSEL), FOR DEFENDANTS-APPELLANTS. 

RICHARD D. GRISANTI, ARCADE, FOR PLAINTIFFS-RESPONDENTS.

 

Appeal from an order of the Supreme Court, Wyoming County (Mark

H. Dadd, A.J.), entered October 5, 2012 in a personal injury action. 

The order denied the motion of defendants for summary judgment

dismissing the complaint. 

It is hereby ORDERED that the order so appealed from is reversed

on the law without costs, the motion is granted and the complaint is

dismissed. 

Memorandum: Plaintiffs commenced this action seeking damages for

injuries allegedly sustained by Eric M. Fisher (plaintiff) when the

vehicle he was driving collided with a vehicle operated by defendant

Nathaniel C. Hill and owned by defendant Melinda J. Hill. Supreme

Court denied defendants’ motion seeking summary judgment dismissing

the complaint on the ground that plaintiff did not sustain a serious

injury within the meaning of Insurance Law § 5102 (d). We conclude

that the court erred in determining that defendants failed to meet

their initial burden of establishing that plaintiff did not sustain a

serious injury (see generally Zuckerman v City of New York, 49 NY2d

557, 562). In support of their motion, defendants submitted medical

records and the affirmed report of a neuroradiologist who examined

plaintiff’s medical records at defendants’ request. The

neuroradiologist concluded that the objective medical findings related

only to a preexisting condition in plaintiff’s spine. “[W]ith

persuasive evidence that plaintiff’s alleged pain and injuries were

related to a preexisting condition, plaintiff[s] had the burden to

come forward with evidence addressing defendant[s’] claimed lack of

causation” and, here, plaintiffs failed to meet that burden (Carrasco

v Mendez, 4 NY3d 566, 580; see Mendola v Doubrava, 99 AD3d 1247,

1248). In particular, plaintiffs’ submissions did not adequately

address how plaintiff’s alleged injuries, “in light of [his] past
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medical history, [were] causally related to the subject accident”

(D’Angelo v Litterer, 87 AD3d 1357, 1357 [internal quotation marks

omitted]). Notably, plaintiff’s treating physician did not diagnose

any fracture after the accident, and the equivocal observation of his

neurosurgeon, made 15 months after the accident, that plaintiff “may

have actually” sustained a fracture is insufficient to raise an issue

of fact (see Brackenbury v Franklin, 93 AD3d 423, 423). Plaintiffs’

submissions are likewise insufficient to raise an issue of fact to the

extent that they are based upon plaintiff’s subjective complaints of

pain (see Sierson v Gacek, 67 AD3d 1431, 1432, lv denied 14 NY3d 704).

All concur except WHALEN, J., who dissents in part and votes to

modify in accordance with the following Memorandum: I respectfully

dissent because I conclude that there are issues of fact whether Eric

M. Fisher (plaintiff) sustained a serious injury within the meaning of

Insurance Law § 5102 (d) under the 90/180-day category. I therefore

conclude that Supreme Court properly denied defendants’ motion to that

extent, and would modify the order accordingly. “The proponent of a

summary judgment motion must make a prima facie showing of entitlement

to judgment as a matter of law, tendering sufficient evidence to

eliminate any material issues of fact from the case” (Winegrad v New

York Univ. Med. Ctr., 64 NY2d 851, 853; see Zuckerman v City of New

York, 49 NY2d 557, 562). “Once [that] showing has been made . . . ,

the burden shifts to the party opposing the motion for summary

judgment to produce evidentiary proof in admissible form sufficient to

establish the existence of material issues of fact which require a

trial of the action” (Alvarez v Prospect Hosp., 68 NY2d 320, 324). 

Here, I conclude that defendants failed to meet their burden of

establishing as a matter of law that plaintiff was able to perform

substantially all of his usual activities for not less than 90 days of

the 180 days immediately following the accident. Specifically,

defendants failed to establish what plaintiff’s usual and customary

daily activities were before and after the accident, and thus the

burden never shifted to plaintiffs with respect to that category of

serious injury (see Paolini v Sienkiewicz, 262 AD2d 1020, 1020; see

also § 5102 [d]). Indeed, the record establishes that, after the

accident, plaintiff was unable to return to the physical activities

associated with his toy train business, and that his wife and a friend

had to perform all of the physical activities associated with the

business. Defendants also failed to establish what plaintiff’s daily

activities were outside of the business before and after the accident.

I further conclude that defendants failed to establish as a

matter of law that plaintiff’s injuries with respect to the 90/180-day

category were related only to a preexisting condition. The physician

who offered an opinion to that effect on defendants’ behalf based that

opinion solely on a review of plaintiff’s CT scans and X rays from

2006 to 2009. He did not state that he reviewed plaintiff’s

deposition testimony or plaintiffs’ bill of particulars or that he

examined plaintiff in person. Thus, the physician had no knowledge of

what plaintiff’s usual and customary daily activities were before and

after the accident, and his opinion was therefore insufficient “to

foreclose the 90/180-day category of serious injury” (Colavito v

Steyer, 65 AD3d 735, 736). Moreover, I note that the physician’s
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CA 13-00161 

opinion with respect to plaintiff’s preexisting medical condition

fails to address plaintiff’s alleged injury to his left leg. The

record establishes that, although plaintiff had medical problems with

his right leg prior to the accident, he alleges injuries to both legs

as a result of the accident. The injury to plaintiff’s left leg

therefore must be a new injury, not a preexisting injury. Inasmuch as

the physician’s opinion fails to address plaintiffs’ “essential

factual allegations,” I conclude that it is insufficient to establish

defendants’ entitlement to summary judgment (Roques v Noble, 73 AD3d

204, 206). 

Entered: February 7, 2014 Frances E. Cafarell

Clerk of the Court