Opinion
No. 20322/09.
2012-05-7
Anthony P. CAMARDA, Plaintiff, v. John S. TYLER and Robert W. Barton, Defendants.
Robert George Bombara, Esq., Howard Beach, Attorney for Plaintiff. Joseph G. Gallo, Esq., Richard T. Lau & Associates, Jericho, Attorney for Defendants.
Robert George Bombara, Esq., Howard Beach, Attorney for Plaintiff. Joseph G. Gallo, Esq., Richard T. Lau & Associates, Jericho, Attorney for Defendants.
FRANCOIS A. RIVERA, J.
By notice of motion filed on February 14, 2012, under motion sequence four, defendants John S. Tyler (Tyler) and Robert W. Barton (Barton) jointly move pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that the plaintiff Anthony P. Camarda (Camarda) did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Plaintiff oppose the motion.
BACKGROUND
On August 11, 2009, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer dated January 8, 2010 the defendants joined issue. On December 30, 2011, a note of issue was filed.
The instant action is to recover damages for personal injuries sustained as a result of a motor vehicle accident. Plaintiff alleges in his complaint and bill of particulars that on September 8, 2008, at approximately 12:00 p.m., he was driving his wife's car in the vicinity of Richards Street and Dikeman Street in Brooklyn, New York. At that date, time and location he was struck by a vehicle negligently driven by Tyler and owned by Barton and sustained serious injuries.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v. Citibank, 100 N.Y.2d 72 [2003] ).
A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 N.Y.2d 1062 [1993] ). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, supra, 68 N.Y.2d at 324).
“Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, “that there is no defense to the cause of action or that the cause of action or defense has no merit.” Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 [1990] )” (People ex rel. Spitzer v. Grasso, 50 AD3d 535, 544 [1d 2008] ).
Insurance Law § 5102(d) defines serious injury as: “[A] personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”
“A defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim.” ( see Grossman v. Wright, 268 A.D.2d 79, 83 [2d 2000] ). “With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. The plaintiff in such a situation must present objective evidence of the injury.” ( Id. at 84.)
In support of the instant motion, defendants submitted what they described as plaintiff's emergency room hospital records for New York Methodist Hospital and for Lutheran Medical Center. They also submitted an MRI report of the plaintiff's brain dated September 16, 2008, the plaintiff's deposition transcripts, the plaintiff's verified bill of particulars, and the affirmed report of Drs. Lisa Nason and Melissa Sapan Cohen.
The defendants submitted plaintiff's verified bill of particulars to show that plaintiff was not claiming a serious injury under the 90/180 category of Insurance Law § 5102(d). The defendants did not indicate how they obtained the emergency room record of New York Methodist Hospital and Lutheran Medical Center or the basis of their knowledge that the records were what they purported them to be. A defendant may rely on unsworn medical records provided by the plaintiff to the defendant in support of a motion for summary judgment (Kearse v. New York City Tr. Auth., 16 AD3d 45 [2d 2005] ). The documents were not affirmed or certified and their respective contents were not explained by a physician. The court could not make out most of the contents of either document since the text was in very small print and was filled with unfamiliar abbreviations. The New York Methodist Hospital record indicated that an x-ray had been ordered and stated the conclusion that plaintiff did not sustain a fracture. However, neither the x-ray or the report of the x-ray were annexed.
The Lutheran Medical Center records contained an entry stating that plaintiff had normal range of motion in all extremities. However, it did not indicate what plaintiff's actual findings were or compare those findings to what is normal ( see Chiara v. Dernago, 70 AD3d 74 [2d 2010], citing, Wallace v. Adam Rental Transp., Inc., 68 AD3d 857 [2d 2009] ).
Dr. Lisa Nason, an orthopedist, was hired by the defendants to conduct an independent medical examination of the plaintiff. On October 20, 2011, Dr. Nason examined the plaintiff's muscle reflexes and conducted range of motion testing of his cervical and lumbar spine. She set forth her findings and compared those findings to what is normal and concluded in her affirmed report that plaintiff had full unrestricted range of motion and normal muscle reflexes.
The MRI report of the plaintiff's brain was not affirmed. Dr. Melissa Sapan Cohen, a radiologist, was hired by the defendants to review plaintiff's cervical and brain MRI. The cervical MRI was conducted on June 18, 2008 and the brain MRI was conducted on September 16, 2008. Dr. Cohen found that the MRI studies were essentially normal.
Without considering the emergency room records of New York Methodist Hospital and Lutheran Medical Center, the defendants, nevertheless, met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345 [2002];Gaddy v. Eyler, 79 N.Y.2d 955, 956–957[1992] ). The affirmed report of Drs. Lisa Nason and Melissa Sapan Cohen were competent medical evidence establishing, prima facie, that the alleged injuries to the cervical region of the plaintiff's spine and to plaintiff's brain did not constitute a serious injury within the meaning of Insurance Law § 5102(d) ( see Rodriguez v. Huerfano, 46 AD3d 794, 795 [2d 2007] ).
In opposition plaintiff submitted the affirmed narrative report of Dr. Dominique Cozien, his treating neurologist since September 12, 2008. On March 1, 2012, Dr. Cozien conducted a neurological examination and range of motion testing of plaintiff's cervical and lumbar spine. He found tenderness along the cervical spine at the C7–C8 level and along the lumbar spine at the L5 level. Dr. Cozien set forth his findings and compared those findings to what is normal. Plaintiff's range of motion in the cervical spine was 25 degrees in flexion with 30 degrees being normal and 15 degrees in extension with 30 degrees being normal. Plaintiff's range of motion in the lumbar spine was 35 degrees in flexion with 90 degrees being normal and 20 degrees in extension with 45 degrees being normal. Dr. Cozien opined with a reasonable degree of medical certainty that the automobile accident of September 8, 2008 was the competent producing cause of the impairment and continued restriction in plaintiff's lumbar and cervical spine.
Plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbar and cervical region of his spine constituted a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Hossan v. Hernandez, 941 N.Y.S.2d 878 [2d 2012]; citing Perl v.. Meher, 18 NY3d 208, 215–218, [2011] ).
Accordingly, Tyler and Barton's motion to dismiss the complaint pursuant to CPLR 3212 based on plaintiff's failure to sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.
The foregoing constitutes the decision and order of this court.