Opinion
No. 527/12.
08-04-2014
Cary DONAWA, Plaintiff v. Daniel BLAIR and Applebaum Family Provisions, Inc., Defendants.
Lieber & Gary, Wendy Gary, Esq., New York, attorney for plaintiff. Richard T. Lau & Associates, Gene W. Wiggins, Esq., Jericho, attorney for defendant.
Lieber & Gary, Wendy Gary, Esq., New York, attorney for plaintiff.
Richard T. Lau & Associates, Gene W. Wiggins, Esq., Jericho, attorney for defendant.
Opinion
FRANCOIS A. RIVERA, J.
By notice of motion filed on January 6, 2014, under motion sequence two, defendants Daniel Blair (hereinafter Blair) and Applebaum Family Provisions, Inc. (hereinafter AFP) jointly move pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that the plaintiff Cary Donawa (hereinafter Donawa) did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Donawa has opposed the motion.
Notice of Motion
Attorney Affirmation
Exhibits A–H
Affirmation in Opposition
Exhibits A–O
Reply Affirmation
Exhibits 1–6
BACKGROUND
On January 10, 2012, Donawa commenced the instant action for damages for personal injuries sustained in a motor vehicle accident by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer dated September 11, 2012, the defendants joined issue. On November 8, 2013, a note of issue was filed.Donawa has alleged in his complaint and bill of particulars that on February 4, 2010, at approximately 11:15 a.m., he was driving a car in the vicinity of Atlantic Avenue at the intersection of Noll Street and Wilson Avenue in Brooklyn, New York. At that date, time and location he was struck by a vehicle negligently driven by Blair and owned by AFP and sustained serious physical 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 any material facts (Giuffrida v. Citibank, 100 N.Y.2d 72 [2003] ).
A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 N.Y.2d 923 [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, 68 N.Y.2d 320 at 324 [1986] ). A party opposing a motion for summary judgment is obligated “to lay bear his proofs” to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v. Associated for Manufacturers, Inc., 46 N.Y.2d 1065 [1979] ). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525 [1991] ).
“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 (People ex rel. Spitzer v. Grasso, 50 AD3d 535, 544 [1st Dept 2008] ; citing Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 [2nd Dept 1990] ).
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 [2nd Dept 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 Brookdale University Hospital and Medical Center. They also submitted the plaintiff's deposition transcripts, the plaintiff's verified bill of particulars, and the affirmed report of Drs. Jacqueline Emmanuel and Michael L. Russ.
The defendants submitted plaintiff's verified bill of particulars to show that the plaintiff was not claiming a permanent and total loss of use of his cervical spine. The defendants did not indicate how they obtained the emergency room record of Brookdale University Hospital and 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 (Zelman v. Mauro, 81 AD3d 936, 937 [2nd Dept 2011]citing Kearse v. New York City Tr. Auth., 16 AD3d 45 [2nd Dept 2005] ). The emergency room records were not affirmed or certified and their respective contents were not explained by a physician. They are therefore disregarded.
Dr. Michael L. Russ, a medical doctor, conducted an independent medical examination of the plaintiff for purposes of determining his eligibility for no fault benefits. Dr. Russ was not hired by the defendants in connection with the instant litigation. On April 21, 2010, within the first sixty days of plaintiff's accident, Dr. Russ examined and conducted range of motion testing of the plaintiff's cervical and lumber spine. He set forth his findings and compared those findings to what is normal and concluded in his affirmed report that plaintiff had full unrestricted range of motion. However, with regard to the range of motion testing performed on the plaintiff's lumbar spine, Dr. Russ, indicated only that the straight leg raise was negative bilaterally,” and failed to compare his finding to what is normal (Shirman v. Lawal, 69 AD3d 838 [2nd Dept 2010]citing Walker v. Public Adm'r of Suffolk County, 60 AD3d 757, 758 [2nd Dept 2009] ).
Dr. Jacqueline Emmanuel, an orthopedist, was hired by the defendants to conduct an independent medical examination of the plaintiff in connection with the instant action. On December 5, 2013, Dr. Emmanuel also examined and conducted range of motion testing of the plaintiff's cervical and lumber spine. He set forth his findings and compared those findings to what is normal and concluded in his affirmed report that plaintiff had full unrestricted range of motion and no neurological deficits. However, with regard to range of motion testing performed on the plaintiff's lumbar spine, Dr. Emmanuel, indicated only that the straight leg maneuver was negative to “about 75 degrees in both the sitting and supine position,” and failed to compare his finding to what is normal (Id.; see also Walker v. Public Adm'r of Suffolk County, 60 AD3d at 757). By not comparing their findings to what is normal, the defendants did not meet their burden of establishing that the plaintiff's injuries were not serious within the meaning of Insurance Law § 5102(d).
Accordingly, defendants' motion must be denied regardless of the sufficiency of the plaintiff's opposing papers (Dowling v. Valeus, 989 N.Y.S.2d 386, 2014 WL 3605807 [2nd Dept 2014]citing Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ).
CONCLUSION
Defendants' motion for summary judgment dismissing the complaint on the basis that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.
The foregoing constitutes the decision and order of this court.