Opinion
0015884/2004.
February 29, 2008.
DECISION AND ORDER
The following papers numbered 1 to 5 read on this motion: Papers Numbered 1-2 3-4 5
Notices of Motion/ Affidavits (Affirmations) Annexed Affirmations in Opposition Affirmations in ReplyIn this action for personal injuries resulting from an automobile accident that occurred on September 23, 2003, the plaintiff moves this Court for an Order pursuant to CPLR § 5015(a) vacating a default Order that resulted in summary judgement being granted against him, as well as a further Order setting a date that the defendants' underlying summary judgement motions can be argued. In opposition to the motion, defendants GREATER N.Y. FROZEN FOOD COMPANY, INC., and OLGER W. BURBANO argue that the plaintiff has neither presented a reasonable excuse for his default, nor an affidavit of merit, and as such, the motion should be denied.
In a separate motion, defendants DULLY PIERRE and HARALD D. PIERRE move this Court for an Order pursuant to CPLR § 3212 granting summary judgement to defendants DULLY PIERRE and HARALD D. PIERRE on the grounds that the plaintiff has not sustained a "serious injury" as defined by § 5102(d) of the Insurance Law. Plaintiff opposes the motion contending that he has submitted enough proof to demonstrate that he has sustained a "serious injury" and that the motion should be denied.
Discussion
It is well settled that a party seeking to vacate a default must demonstrate a reasonable excuse for the default, as well as a meritorious claim or defense to the action. See generally, N.Y. C.P.L.R. 5015(a)(1); Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., Inc., 67 N.Y.2d 138, 501 N.Y.S.2d 8, 492 N.E.2d 116 (1986); Genesee Management Inc. v. Barrette, 4 A.D.3d 874, 771 N.Y.S.2d 778, (4th Dept., 2004); D'Aniello v. T.E.H. Slopes, Inc., 301 A.D.2d 556, 756 N.Y.S.2d 54 (2nd Dept., 2003); "A court may excuse a default upon a showing of a meritorious defense and a justifiable excuse for the default.", Mena v. Choon-Ket Kong, 269 A.D.2d 575, 703 N.Y.S.2d 923 (2nd Dept., 2000); "The determination of what constitutes a reasonable excuse lies within the sound discretion of the court.", Barbagallo v. Nationwise Exterminating Deodorizing, Inc., 260 A.D.2d 518, 688 N.Y.S.2d 246, (2nd Dept., 1999).
The motion must be made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry. N.Y. C.P.L.R. 5015(a)(1). In order to establish a meritorious defense, the moving party must submit to the court an affidavit "from an individual with knowledge of the facts", who must set forth the facts demonstrating the merit of the defense. Peacock v. Kalikow, 239 A.D.2d 188, 190, 658 N.Y.S.2d 7, 9 (1st Dept., 1997).
The determination of the sufficiency of the proffered excuse for the default and the statement of merits of the cause of action or the defense rests within the sound discretion of the court on a motion seeking relief from an order or judgment on the basis of excusable default. Goldman v. Cotter, 10 A.D.3d 289, 781 N.Y.S.2d 28, (1st Dept., 2004).
On this case, the Court sees no reason to vacate the plaintiff's default, as the record demonstrates that the plaintiff was dilatory in opposing the summary judgement motion that was made by defendants GREATER N.Y. FROZEN FOOD COMPANY, INC., and OLGER W. BURBANO. The plaintiff neither offers a reasonable excuse for his default, nor does he offer any proof that his claim has merit. Plaintiff argues that as a result of changing attorneys, matters were delayed, and that as a result of his new attorneys taking over all of the files from his former attorney, they were overwhelmed. This argument is far from persuasive. According to Court records, the Plaintiff's prior attorney appeared in opposition to the motion on March 22, 2006 and again on May 31, 2006 and requested adjournments on both occasions without ever submitting an affirmation in opposition. On or about July 1, 2006, plaintiff's current counsel assumed responsibility for the plaintiff's file, as well as all of the other files that had been handled by the plaintiff's former attorney, Steven J. Kaye Associates, P.C. More than three (3) weeks later, the motion appeared on the Court's calendar again on July 26, 2006, and once again, plaintiff requested an adjournment so that he could interpose opposition papers. The Court graciously adjourned the motion again for almost two (2) months, until September 20, 2006, but gave the motion a final marking. On September 20, 2006, plaintiff had still not submitted any opposition papers, and requested another adjournment to do so, which the Court promptly denied. As there was no opposition, when the Court heard the motion, it was granted.
Other than plaintiff's claim that his new lawyers were overwhelmed, no explanation is offered as to why, despite the long period of time afforded him by the Court, the plaintiff never submitted any opposition to the motion. Plaintiff's counsel's attempt to rely upon the excuse of "law office failure" is also unpersuasive. This was not a situation where a calendar clerk noted a date in a diary incorrectly. Here, plaintiff and his attorneys had more than seven (7) months to prepare and submit opposition papers to the defendants' motion, yet they failed to do so. The fact that the narrative report that the plaintiff would have submitted in opposition to the underlying threshold motion is dated March 9, 2006, makes the plaintiff's failure that much more glaring. If the plaintiff had a narrative medical report from his treating doctor in March of 2006, six (6) months before the Court granted the defendants' motion on default, the Court can only wonder as to why it was never submitted.
Plaintiff also fails to annex an affidavit of merit from a person with knowledge of the case. It was only after the plaintiff received the defendants' opposition papers that he realized that he had not included an affidavit of merit, and in an attempt to correct this error, attaches an affidavit of merit to his reply papers. However, as the affidavit was submitted with plaintiff's reply papers, the Court cannot and will not consider it. CPLR § 2214(b), in discussing the service of papers where a motion is made on notice, makes reference only to "the notice of motion and supporting affidavits," "answering affidavits", and "reply affidavits". See CPLR § 2214(b). While the parties to a litigation are generally free to chart their own procedural course, courts are loath to tolerate protracted motion practice. Accordingly, motion practice beyond the papers specified in CPLR § 2214(b) may be rejected. Schultz v. 400 Co-op. Corp., 292 A.D.2d 16, 736 N.Y.S.2d 9, (1st Dept., 2002);Pinkow v. Herfield, 264 A.D.2d 356, 695 N.Y.S.2d 20, (1st Dept., 1999). There is no right to respond to a reply. See Pinkow v. Herfield, supra;Kushaqua Estates Inc. v. Bonded Concrete Inc., 215 A.D.2d 993, 627 N.Y.S.2d 140, (3rd Dept., 1995). If proper procedure has been followed, no unfairness results to the moving party because the function of a reply affidavit is only to address arguments raised in the answering affidavits; evidentiary matters submitted or arguments raised for the first time in a reply should be disregarded. In Mu Ying Zhu v. Zhi Rong Lin, 1 A.D.3d 416, 766 N.Y.S.2d 897, (2nd Dept., 2003), the Court properly rejected a physician's affidavit submitted for the first time in reply papers. See also Lazar v. Nico Industries, Inc., 128 A.D.2d 408, 512 N.Y.S.2d 693, (1st Dept., 1987). Thus, a movant who in preparation of a motion for summary judgment fails to assemble sufficient proof to dispel all questions of material fact cannot make up for the deficiency in a reply affidavit. Ritt by Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 582 N.Y.S.2d 712, (1st Dept., 1992).
As the plaintiff has failed to offer a reasonable explanation for either his failure to timely submit opposition papers to the defendants' motion for summary judgement or for the resultant default judgement, and the plaintiff has also failed to attach an affidavit of merit from someone with knowledge of the facts of this case, the plaintiff's motion is denied.
Even if the Court had granted the plaintiff's motion to vacate his default, the plaintiff's case would still be subject to dismissal as a result of his inability to successfully oppose the defendants motions for summary judgement based upon their contention that the plaintiff did not sustain a serious injury as defined in Insurance Law § 5102(d).
Originally, defendants GREATER N.Y. FROZEN FOOD COMPANY, INC., and OLGER W. BURBANO moved this Court for summary judgement on the grounds that the plaintiff did not sustain a "serious injury". The plaintiff failed to timely oppose that motion and it was granted on default. Now defendants DULLY PIERRE and HARALD D. PIERRE also move this Court for summary judgement, claiming that the plaintiff did not sustain a "serious injury" as defined in § 5102(d) of the Insurance Law.
It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Alvarez v Prospect Hospital, 68 NY2d 320, (1986); Zuckerman v City of New York, 49 NY2d 557, (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, (3rd Dept., 1981); Greenburg v Manlon Realty, 43 AD2d 968, 969 (2nd Dept., 1974); Winegrad v New YORK University Medical Center, 64 NY2d 851, (1985).
CPLR § 3212(b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v Dino Artie's Automatic Transmission Co., 168 AD2d 610, (2nd Dept., 1990). Summary judgment shall be granted only where there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065, (1979).
In support of their motion, defendants DULLY PIERRE and HARALD D. PIERRE submit medical reports and affirmations from a neurologist, Dr. Daniel J. Feuer, from an orthopedist, Dr. J. Marvyn Lloyd, and from a radiologist, who reviewed and opined on the plaintiff's MRI films, Dr. A. Robert Tantleff.
Dr. Feuer examined the plaintiff in September of 2005 and concluded that the plaintiff had normal motor, reflex and sensory examinations. Dr. Feuer also reports that there were no findings on examination to support a diagnosis of either cervical or lumbar radiculopathy, that the plaintiff's neurological examination was within normal limits, and that he does not demonstrate any objective neurological disability or neurological permanency. In Dr. Feuer's report, he states that he conducted a physical examination of the plaintiff and that, when compared to "normal", he found that the plaintiff had full ranges of motion in his cervical spine and lumbosacral spine, with no tenderness or spasm noted.
Dr. Lloyd also examined the plaintiff in September of 2005 and concluded that the plaintiff's exam revealed evidence of a resolved cervical sprain, a resolved lumbar sprain, and a resolved right knee sprain. Dr. Lloyd states he found no objective abnormality on his exam. He also states that there is no evidence of cervical or lumbar radiculopathy, and that there are no objective findings that can be correlated with the MRI or electrodiagnostic studies. Dr. Lloyd also reports that the plaintiff had no complaints relative to his neck, and that the plaintiff has fully recovered from her injuries. In Dr. Lloyd's report, he states that he conducted a physical examination of the plaintiff and that, when compared to "normal", he found that the plaintiff had full ranges of motion in his cervical spine, upper extremities, lumbar spine, lower extremities, and right knee. Dr. Lloyd also states that he found no evidence of muscle spasm in the cervical and lumbar spines, muscle strength was normal in both the upper and lower extremities and the plaintiff's gait was normal. Dr. Lloyd's exam of the plaintiff's right knee noted that there was no joint effusion, no joint line tenderness and that the McMurray test was negative. Dr. Lloyd did, however, note a slight patello-femoral crepitus in the right knee.
Dr. Tantleff reviewed the MRI's of the plaintiff's right knee, cervical spine and lumbar spine in January of 2005. In his review of the plaintiff's right knee MRI, Dr. Tantleff notes that there is no evidence of bony contusion, soft tissue swelling, edema, or evidence of hematomas. He also notes that there is no evidence of cortical bony fracture or dislocation, no evidence of acute or traumatic meniscal tear, and that the anterior and posterior cruciate liagments are intact, as are the medial and lateral collateral complexes, patella ligament and quadriceps tendon. Dr. Tantleff opines that the MRI of the right knee reveals no evidence of recent trauma or sequella thereof, that there are age related degenerative changes of the knee, and that there is no evidence of post-traumatic change.
In his review of the MRI of the plaintiff's cervical spine, Dr. Tantleff initially notes that the images are significantly grainy and blurry which degrades the image quality, detail and resolution and creates ghosting and phantom images which exacerbates the findings and creates faux abnormalities due to the motion artifact. He opines that the examination is markedly degraded and that it should have been repeated. Despite the deficiencies in the films, Dr. Tantleff noted that there appears to be diffuse degeneration and dessication with loss of height of the intervertebral discs with associated degenerative spondylosis. He also noted that the cervical cord, as presented, appears to be normal in size, shape and position without compression, deviation or displacement.
In his review of the plaintiff's lumbar spine MRI, Dr. Tantleff again notes that the image quality and image detail is extremely poor. Based on the degraded images, Dr. Tantleff notes a suggestion of degeneration and dessication of the L3-4, L4-5 and L5-S1 discs with associated discovertebral endplate spurring consistent with chronic degenerative discogenic disc disease and spondylosis. He also notes that the thecal sac appears to be maintained without compression, deviation or displacement, and that there is no definitive evidence of disc bulge, protrusion or herniation. He also opines that the plaintiff's diffuse chronic long standing degenerative discogenic changes are not causally related to the accident of September 25, 2003.
The evidence proffered by the defendants is sufficient for proving as a matter of law that the plaintiff has not sustained a "serious injury" pursuant to Insurance Law § 5102(d), and as such, the burden shifts to the plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that he did sustain such an injury, or that there are questions of fact as to whether the purported injury was serious. "The affirmed medical report of defendants' examining physician, who examined plaintiff approximately 1 ½ years after the motor vehicle accident and opined that he had no disability, was sufficient to satisfy defendants' burden, in a personal injury case arising from an accident, and of making a prima facie showing that plaintiff did not sustain a serious injury within the meaning of the No-Fault Law; the report was based on the physician's findings with respect to the various ranges of motion of plaintiff's cervical and lumbar spines and shoulders, lack of tenderness or muscle spasm, and the fact that the neurological examination was normal and other tests showed no abnormalities", Willis v. New York City Transit Authority, 14 A.D.3d 696, 789 N.Y.S.2d 223 (2nd Dept. 2005).
In opposition to the defendants' motion, plaintiff submits an attorney's affirmation, a copy of the police accident report, copies of the summons and complaint, answers, bill of particulars and note of issue, an affidavit of merit from the plaintiff, an un-affirmed narrative report and medical records from plaintiff's treating physician, Dr. Zenaida A. Reyes-Arguelles, un-affirmed MRI reports of the cervical and lumbar spines from Dr. Charles DeMarco, an un-affirmed MRI report of the right knee by Dr. John S. Lyons, un-affirmed neurological and range of motion test results, also from Dr. Zenaida A. Reyes-Arguelles, physical therapy records that are neither affirmed nor attributed to any specific doctor or medical facility, a narrative report from an examining chiropractor that is not in admissible form, and lastly, a properly affirmed narrative report from another examining physician, Dr. Raj Tolat, dated October 8, 2007, more than four (4) years after the subject motor vehicle accident.
Initially, it should be noted that self-serving statements contained in the plaintiff's attorney's affirmation and in plaintiff's affidavit have very little probative value and will not typically serve as evidence that plaintiff has sustained a serious injury. "Evidence consisting of counsel's affirmation, a copy of plaintiff's deposition testimony, a copy of an accident report, and photographs of the damaged vehicle, were insufficient to raise a triable issue of fact as to whether plaintiff's injuries were serious within the meaning of the No-Fault Law", Oliva v. Gross, 29 A.D.3d 551, 816 N.Y.S.2d 110, (2nd Dept. 2006).
The vast majority of the exhibits submitted by the plaintiff in opposition to the defendants' motion are not in admissible form, and as such, cannot be considered by the court. "An unsworn medical statement by a treating physician cannot be considered in opposition to a summary judgment motion in which the issue is whether the motorist involved in an accident suffered a "serious injury" for purposes of the no-fault law.", Hagan v. Thompson, 234 A.D.2d 420, 651 N.Y.S.2d 122, (2nd Dept., 1996); leave to appeal granted 89 N.Y.2d 813, 658 N.Y.S.2d 243, 680 N.E.2d 617, appeal withdrawn 90 N.Y.2d 937, 664 N.Y.S.2d 275, 686 N.E.2d 1370; See also,Oquendo v. New York City Transit Authority, 246 A.D.2d 635, 668 N.Y.S.2d 398, (2nd Dept., 1998). "An unsworn doctor's report tendered by the motor vehicle accident victim as proof of a "serious injury" was in inadmissible form and would not defeat a motion for summary judgment.", Grasso v. Angerami. 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76, (1991). "Unsworn medical reports regarding injuries sustained by a passenger involved in serial rear-end automobile collisions were inadmissible on defendants' summary judgment motion to prove that passenger suffered a "serious injury," as required to recover under New York's no-fault insurance law.", Charlton v. Almaraz, 278 A.D.2d 145, 718 N.Y.S.2d 52, (1st Dept., 2000). "A personal injury plaintiff seeking to show the requisite "serious injury" within the meaning of the no-fault statute's provision governing the threshold for tort recovery could not rely on a doctor's unsworn magnetic resonance imaging (MRI) reports.", Goldin v. Lee, 275 A.D.2d 341, 712 N.Y.S.2d 154, (2nd Dept., 2000). "Unsworn medical reports which motorists submitted in opposition to defendant's summary judgment motions were inadmissible, for purposes of establishing that they sustained serious injuries, within the meaning of the no fault statutes.", Young v. Ryan, 265 A.D.2d 547, 697 N.Y.S.2d 150, (2nd Dept., 1999). "An examining physician's report, which was neither affirmed nor sworn to, could not be the basis for a prima facie showing that an individual sustained a serious injury within the meaning of the no-fault law."Simms v. APA Truck Leasing Corp., 14 A.D.3d 322, 788 N.Y.S.2d 63, (1st Dept., 2005).
The narrative report of the plaintiff's examining chiropractor is also inadmissible. Aside from the fact that the affirmation itself is not in proper form due to the fact that the chiropractor neither states that he is affirming "pursuant to CPLR § 2106", nor does he state that the affirmation is made "under penalties of perjury". While this error would normally make any medical doctor's affirmation inadmissible, the Courts of this state have consistently held that for chiropractors, who are not medical doctors, an affirmation does not suffice, and that their submission must be in the form of an affidavit, signed before a notary public. In Barbarulo v. Allery, 271 A.D.2d 897, 707 N.Y.S.2d 268, (3rd Dept., 2000), the Court ruled that, on a motion for summary judgement, "the unsworn affidavit from the chiropractor who treated the motorist following an accident was of no probative value for purposes of defeating a prima facie showing of no serious injury within the meaning of the no-fault insurance law."
"An affirmation by the motorist's treating chiropractor, which was not subscribed to before a notary or other authorized official, was not admissible evidence, in opposition to a motion for summary judgment, to show that the motorist sustained a serious injury in the automobile collision, within the meaning of the no fault statutes.", Young v. Ryan, supra. "The statute under which an attorney, physician, osteopath, or dentist may make an affirmation which has same force and effect as an affidavit, without the necessity of appearing before a notary or other official authorized to administer oaths, does not afford chiropractors the privilege of doing so.", Doumanis v. Conzo, 265 A.D.2d 296, 696 N.Y.S.2d 201, (2nd Dept., 1999). "The affirmations of the chiropractor for the plaintiff's in an action arising from an automobile accident, which were not subscribed by a notary or other authorized official, were not entitled to judicial cognizance in connection with a defendant's motion for summary judgment on the basis that the plaintiff's did not sustain a "serious injury" within the meaning of the No-Fault Law; the chiropractor did not come within the scope of the statute giving affirmations the same effect as affidavits, and was required to comply with the formalities which generally govern affidavits." Doumanis v. Conzo, supra. "An affirmation by a motorist's chiropractor, which was not in admissible form, could not be considered in determining whether the motorist had suffered a "serious injury" within the meaning of the No-Fault Law". Rum v. Pam Transport, Inc., 250 A.D.2d 751, 673 N.Y.S.2d 178, (2nd Dept., 1998).
Plaintiff does, however, submit a properly affirmed medical report from an examining physician, Dr. Raj Tolat. In his affirmation, Dr. Tolat relates the plaintiff's course of treatment, as well as the findings of other medical providers who treated or performed tests on the plaintiff. Although Dr. Tolat opines that the plaintiff had a reduced range of motion at the time of the examination, and compares the plaintiff's range of motion with what is considered "normal", he fails to identify what tests he conducted to reach that conclusion. More importantly, the vast majority of his findings are based upon the unsworn findings of other medical providers, which is inadmissible. "The affirmation of plaintiff's examining physician relied on unsworn reports from outside sources and failed to set forth the tests used to arrive at the conclusion that the plaintiff suffered a loss in range of motion of his right knee and cervical spine, and thus was insufficient to raise fact issue as to whether plaintiff sustained "serious injury" under the No-Fault Law as result of a motor vehicle accident, as required to preclude summary judgment in a personal injury action." Kivlan v. Acevedo, 17 A.D.3d 321, 792 N.Y.S.2d 573, (2nd Dept., 2005). "Plaintiffs' physician improperly relied upon numerous unsworn medical records and reports in formulating his opinion, in opposition to a motion for summary judgment, that the plaintiff's sustained a serious injury within the meaning of no-fault law." Garces v. Yip, 16 A.D.3d 375, 790 N.Y.S.2d 712, (2nd Dept., 2005).
Even if Dr. Tolat's affirmation did not suffer from the previously mentioned deficiencies, the plaintiff's case is still subject to dismissal as a. result of the unexplained gap of more than three years between his cessation of treatment after the accident and his exam with Dr. Tolat in October of 2007. Although the plaintiff claims that he received physical therapy for a period of four (4) months following the accident, this claim is not substantiated by the medical records and is belied by the plaintiff's deposition testimony, wherein he could not recall the length of time that he received treatment. In his affidavit, the plaintiff also attempts to explain his cessation of treatment by claiming that his no fault benefits were denied and that he lacked the funds to continue receiving treatment. However, no proof has been offered to verify if and when the plaintiff's no fault benefits were terminated. Similarly, plaintiff has not offered any proof or explanation to demonstrate that he had no other means of continuing treatment, whether it be through private insurance through his job as a bus driver, if available, or out of his own pocket.
In Pommels v. Perez, 4 NY3d 566, 830 N.E.2d 278, 797 NYS2d 380, (2005), the Court of Appeals concluded that, even when there is objective medical proof of an injury, "when additional contributory factors interrupt the chain of causation between the accident and the injury-such as a gap in treatment, an intervening medical problem or a pre-existing condition-summary dismissal of the complaint may be appropriate." InGomez v. Ford Motor Credit Co., 10 Misc.3d 900, 810 N.Y.S.2d 838, (2005), the Court ruled that a motorist, who claimed to have sustained a serious injury within the meaning of the no-fault law during an automobile accident, failed to offer any evidence to substantiate his claim that a three-year gap in treatment was triggered by discontinuance of no-fault benefits, and thus the patient failed to establish that he sustained a serious injury in light of the three-year gap in treatment; no substantiation of the motorist's claim was provided, the motorist failed to explain why he could not have continued treatment through his employee health benefits which he testified he received, and the motorist failed to explain why he could not continue treatment by paying for it out of his own pocket.
Based upon the foregoing, the plaintiff has failed to meet his burden and establish that he sustained a "serious injury" as defined and contemplated in Insurance Law § 5102 (d), and as such, the defendants' motions to dismiss the plaintiff's case must be granted.
Conclusion
Accordingly, it is
ORDERED, that the plaintiffs' motion to vacate the default Order of September 20, 2006 is denied in its entirety; and it is further,
ORDERED, that the defendants' motion for summary judgement and dismissal of the instant action, pursuant to CPLR § 3212, on the grounds that the plaintiff has not met the "threshold" for a "serious injury" as defined in New York Insurance Law § 5102 (d), is granted.
This constitutes the Decision and Order of the Court.