NY State Supreme Court judge rules plaintiff's injuries were not

Daily Record (Rochester, NY), Dec 19, 2005 by Kevin M. Momot

Where the plaintiff commenced an action alleging that she sustained a serious injury, under Insurance Law Section 5102(d), as a result of an automobile accident, evidence was not sufficient to prove the plaintiff's disabilities were causally related to the accident.

Reviewing the facts in Dolores M. Dipalma v. Eric C. Coleman, Sheri R. Coleman, Ford Motor Credit Co. and Ford Credit Titling Trust, New York State Supreme Court, Niagara County Judge Erin M. Peradotto granted summary judgment in favor of the defendant.

The Facts

In February 2001, the plaintiff, Dolores M. Dipalma, was involved in a motor vehicle accident while working as a part-time bus aide. The bus in which she was a passenger was struck by a vehicle operated by the defendant Eric C. Coleman. The vehicle was leased from the defendants Ford Motor Credit Co. and Ford Credit Titling Trust (Ford).

Dipalma commenced an action in February 2004 alleging that she sustained a serious injury under Insurance Law Section 5102(d) as a result of the accident.

Following the completion of discovery, Ford filed a motion for summary judgment on the grounds that the plaintiff did not sustain a serious injury, that pre-existing and intervening conditions interrupted the chain of causation between the accident and the claimed injuries, and that Vehicle and Traffic Law Section 388 was unconstitutional as applied to long-term lessors such as Ford.

Dipalma opposed the motion.

Medical Evidence

The medical evidence submitted by Ford in support of its motion included an affidavit of Dr. S. David Miller. Dr. Miller conducted an examination of Dipalma in March of this year and reviewed her medical records, including reports of x-rays and MRIs performed shortly after the accident, and MRIs taken more than two and a half years after the accident.

In his affidavit, Dr. Miller stated that the x-rays of Dipalma's cervical spine taken on the day of the accident revealed hypertrophic spurring (bony irregularities) on plaintiff's lower cervical spine ... [which were] the result of a chronic, degenerative process (as opposed to acute trauma), and therefore establish that plaintiff had a degenerative condition in her cervical spine that pre-dated the accident.

Dr. Miller also highlighted the fact that during the two and a half years after the accident, Dipalma continued to work as a school bus aide performing the same duties. She was employed by a company that transported children with disabilities, including children confined to wheelchairs. Dipalma assisted the disabled children during transportation and was required to lift handicapped children and ensure that the children in wheelchairs were properly secured on the bus.

Dr. Miller concluded that there was no objective evidence of any permanent or significant injury, or any residual physical disability as a result of the accident. He further concluded that Dipalma sustained, at most, a cervical strain and a contusion of her shoulder as a result of the accident.

In addition, Dr. Miller noted that the loss of Dipalma's two children to cystic fibrosis in May 2002 and June 2003 were psychosocial stressors that increased the her symptoms and interrupted the chain of causation between the accident and the her injuries.

Dipalma argued that despite efforts at conservative pain management, the pain in her neck, shoulder, arms and lower back continued to worsen, resulting in a consultation with Dr. Andrew Cappuccino in July 2003. At that initial examination, Dr. Cappuccino concluded that Dipalma had permanent and partial disabilities in both her neck and back.

Ultimately, Dr. Cappuccino performed surgery on Dipalma's cervical spine in July 2004, more than three years after the accident.

Ford argued it should be entitled to summary judgment as a long term lessor of the vehicle that was involved in the accident at issue based on both Due Process and Equal Protection challenges to Vehicle and Traffic Law (VTL) Section 388. Ford acknowledged that these arguments were rejected by the Appellate Division, Fourth Department, which held that VTL Section 388 is not unconstitutional as applied to long term lessors, Chilberg v. Chilberg, 13 AD3d 1089, 1091-93.

The court concluded Ford was not entitled to summary judgment on this ground.

Court's Analysis

Judge Peradotto noted proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations within a reasonable time after the accident, is insufficient to establish a 'serious injury' under the No-Fault Law, Pommells v. Perez, 4 NY3d 566, 574; Petinrin v. Levering, 17 AD3d 173, 174.

Here, the court determined Dipalma did not submit sufficient evidence demonstrating significant physical limitations reasonably contemporaneous with the accident.

Taking into account (1) the significant delay between the accident and the onset of the Dipalma's more serious symptoms that resulted in surgery, and (2) the lack of evidence of a disability directly related to the accident, Dipalma was required to explain the effect of her preexisting degenerative disease on her alleged injuries. The court determined she failed to do this.