Cirillo v Swan, 2012 NY Slip Op 03493 (3rd Dept. 2012)
“[d]efendant relied upon a sworn report from orthopedic surgeon Robert Hendler, who reviewed plaintiff’s medical records and found no objective evidence of pathology stemming from the accident. Indeed, plaintiff had significant neck and back pain due to injuries predating the accident, was found to have only nonspecific and mild pain after it, and was quickly cleared to return to work. Hendler’s own examination of plaintiff was “completely normal,” and he opined that plaintiff suffered no more than a neck or lower back sprain, or temporary aggravation of a prior condition that had fully resolved. Defendant thus met her initial burden as to all claimed categories of serious injury….”
Triable issue of fact not raised:
(1) “MRIs of her spine revealed disc bulges and possible herniations, and opined that those conditions arose out of the automobile accident and left plaintiff permanently and significantly disabled. He did not, however, provide any explanation or objective medical basis for his belief that plaintiff’s limitations were unrelated to her several prior complaints for which she had received extensive treatment”
(2) “Gamberg, a spine pain management specialist, found that plaintiff sustained injuries in the accident and also quantified how they significantly limited her range of motion. His affidavit is nonetheless inadequate, however, in that he wholly failed to address plaintiff’s prior back condition and injuries; nor did he sufficiently describe the objective tests used to determine her limitations”
If you read Perl, you would have to somewhat struggle to find how what are now deemed fact issues can still be deemed legal issues. It is not as though I agree with Perl since it put New York somewhat on the same path as New Jersey after the DeProspero case, but the resistance from at least the Third Department is interesting.
