APRIL 2004

CONCLUSORY ASSERTIONS BY PLAINTIFF=S PHYSICIAN THAT PRE-EXISTING CONDITION HAD RESOLVED IS INSUFFICIENT TO DEFEAT SUMMARY JUDGMENT MOTION ON "SERIOUS INJURY."

 In Franchini v. Palmieri, 1 N.Y. 3d 536 (2003), the Court of Appeals recently upheld a Third Department decision dismissing plaintiff=s complaint on the "serious injury" threshold.  The Court based its decision upon plaintiff=s chiropractor=s failure to identify any medical foundation or objective basis that plaintiff=s pre-existing conditions had resolved and that plaintiff=s alleged injuries were causally related to the subject motor vehicle accident.  Although the Court of Appeals decision is not very informative, review of the lower court=s ruling is very instructive on this issue.

 The facts as set out in Franchini v. Palmieri, 307 A.D.2d 1056, 763 N.Y.S.2d 381 (3rd Dept., 2003), are as follows:   The defendant brought a summary judgment motion on the threshold issue of "serious injury."  In support of her motion, the defendant submitted plaintiff=s medical records which showed numerous pre-existing conditions and injuries that caused and would be expected to cause the types of symptoms which the plaintiff was attributing to the subject motor vehicle accident.  Significantly, the records reflected that the plaintiff had been treated for cervical spine arthritis, degenerative disc disease, headaches, spinal tenderness, muscle spasms and lower back pain for the seven years preceding the accident in question.  Additionally, only seven months prior to the accident plaintiff presented with headaches, swelling over her spine and limited range of motion in her neck as the result of an assault by her husband.   Finally, the defendant presented the reports of two physicians who opined that plaintiff=s symptoms had causes other than the subject accident, as well as an MRI report taken after the accident which was normal except for confirming plaintiff=s pre-existing degenerative disc disease.

 In response to this evidence, plaintiff produced an affidavit of plaintiff=s treating chiropractor, wherein he diagnosed the plaintiff with "cervicocranial syndrome," "cervical intervertebral disc syndrome," "lumbar intervertebral disc syndrome" and "low back syndrome."  He also opined that the plaintiff sustained limitations in her neck and lower back of 100 percent and that plaintiff=s injuries were separate and distinct from any pre-existing injuries.

 Based upon this evidence, the Third Department found that the plaintiff failed to raise a question of fact to defeat the motion, explaining that the chiropractor failed to support his opinion upon any objective evidence that plaintiff=s pre-existing condition had resolved or explain the reasoning behind his causal relationship between plaintiff=s injuries and the subject motor vehicle accident.  The Court stated that objective evidence is required to distinguish the aggravation of a pre-existing condition from the pre-existing condition itself, Franchini citing Lorthe v. Adeyeye, 306 A.D.2d 252, 760 N.Y.S.2d 530 (2003), and held that under these circumstances the plaintiff=s chiropractor=s opinion that her injuries were causally related to the accident was both speculative and conclusory.