Summary
finding sufficient a chiropractor's report based on range of motion testing
Summary of this case from Hodder v. U.S.Opinion
December 24, 1986
Appeal from the Supreme Court, Ulster County (Cobb, J.).
In March 1983, plaintiff commenced this personal injury action for damages allegedly sustained as a result of an automobile accident. Defendants subsequently moved for summary judgment on the ground that plaintiff had not suffered a "serious injury" (see, Insurance Law § 5102 [d]; § 5104 [a]). The motion was denied and this appeal ensued.
The proponent of a summary judgment motion has the burden of establishing by competent evidence that he is entitled to judgment as a matter of law (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065; Mulhauser v. Wood, 107 A.D.2d 1019, appeal dismissed 65 N.Y.2d 637). Here, in support of their motion for summary judgment, defendants submitted unsworn medical reports from a chiropractor who treated plaintiff and from a medical doctor retained by defendants to examine plaintiff. It is well established that unsworn medical reports are inadequate to support a motion for summary judgment (Proper v. Saunders, 102 A.D.2d 907; Savage v. Delacruz, 100 A.D.2d 707; La Frenire v. Capital Dist. Transp. Auth., 96 A.D.2d 664). Hence, the medical reports submitted by defendants are insufficient to establish that they are entitled to summary judgment.
Defendants, relying on Dwyer v. Tracey ( 105 A.D.2d 476), claim that the examination before trial of plaintiff and a chiropractor's affirmation submitted by plaintiff provide a sufficient basis to support their motion for summary judgment. We cannot agree. Upon consideration of plaintiff's testimony at the examination before trial, we do not find sufficient evidence therein to entitle defendants to judgment as a matter of law. Further, the affirmation of Frank Maniscalco, a doctor of chiropractic who has provided a continuous course of treatment to plaintiff since shortly after the accident, fails to support defendants' position. Maniscalco stated that, among other things, plaintiff was suffering from a chronic recurrent strain with accompanying irritation of the cervical soft tissue, spasms and pain. An examination of plaintiff done by Maniscalco shortly before defendants' motion revealed plaintiff had "limitation of range of motion in the cervical region consisting of a limitation of 15° of flexion, 15° of extension, 10° right lateral flexion, 32° left lateral flexion, 30° right rotation and 35° left rotation". Maniscalco stated that a further course of treatment was necessary. Under these circumstances, we conclude that Special Term properly denied defendants' motion for summary judgment (see, Lopez v. Senatore, 65 N.Y.2d 1017).
Finally, we note that while the burden is on defendants when making a motion for summary judgment, at trial, plaintiff will carry the burden of establishing "serious injury" (see, Licari v Eliott, 57 N.Y.2d 230; Mulhauser v. Wood, supra). If he fails to meet that burden, defendants can then move to dismiss the complaint (see, CPLR 4401; Savage v. Delacruz, supra, p 708).
Order affirmed, with costs. Main, J.P., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.