Opinion
1380/03.
Decided November 30, 2004.
The motion by defendant, Monique McCauley ("McCauley") and cross-motion by defendants, Deneshwarie Basdeo and Mabendranauth Basdeo ("Basdeo"), for summary judgment in their favor as against the plaintiff, Estelle Scott, on the issue of threshold injury are hereby denied. The summary judgment motion by McCauley on the issue of liability is hereby denied.
This action arises out of a two-car motor vehicle accident which occurred on May 12, 2001 at or near River Avenue and 161st Street in the County the Bronx and City and State of New York. Plaintiff, Estelle Scott, was a passenger in a vehicle operated by McCauley, which collided with Basdeo's vehicle. The plaintiff commenced this action to recover damages as a result of personal injuries sustained as a result of said accident. Defendants filed summary judgment motions on the grounds that plaintiff did not present a prima facie case for a "serious injury." In addition, McCauley's motion requested summary judgment on the issue of liability.
Threshold Injury
The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 (Ct.App. 1986) and Winegrad v. New York University Medical Center, 64 NY2d 851, 487 N.Y.S.2d 316 (Ct.App. 1985). It is well-settled that a defendant seeking summary judgment as to the no-fault threshold bears the initial burden of establishing the absence of a serious injury as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case. Villalta v. Schechter, 273 AD2d 299, 710 N.Y.S.2d 87 (2nd Dept. 2000) and Pirrelli v. Long Island Railroad, 226 AD2d 166, 641 N.Y.S.2d 240 (1st Dept. 1996).
In support of a claim that the plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physician or the unsworn reports of the plaintiff's examining physician. Pagano v. Kingsbury, 182 AD2d 268, 587 N.Y.S.2d 692 (2nd Dept. 1992). Also, an affirmed physician's report, being in admissible form and showing that a plaintiff was not suffering from any disability or consequential injury from the accident would be sufficient to satisfy a defendant's burden of proof and shifts to the plaintiff the burden of establishing the existence of a triable issue of fact. See Gaddy v. Eyler, 79 NY2d 955, 582 N.Y.S.2d 990 (Ct.App. 1992), where defendant established a prima facie case that plaintiff's injuries were not serious through the affidavit of a physician who examined plaintiff and concluded that plaintiff had a normal examination. When the movant has made such a showing, the burden shifts and it then becomes incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 (Ct.App. 1986).
In support of their motions, defendants submitted a copy of the emergency room report from Harlem Hospital which is not certified pursuant to CPLR 4518 (a), and an unsworn report from Neil Ganz, D.C., a chiropractor. Given that these reports are not in admissible form, they are precluded from consideration. Defendants also submitted two unsworn reports from plaintiff's doctor, Steven Brownstein, M.D., a board certified radiologist, who found no abnormalities in the CT scan of plaintiff's cervical spine, and degenerative changes in the CT scan of the lumbar spine. Although, these reports are unsworn, they may be considered since the reports are from plaintiff's examining doctor. However, the reports of the MRI by Dr. Brownstein, standing alone, are not sufficient to meet the burden for summary judgment. Unsworn MRI reports are not competent evidence unless both sides rely on these reports. Gonzalez v. Vasquez, 301 AD2d 438, 754 N.Y.S.2d 7 (1st Dept. 2003) and Ayzen v. Melendez, 299 AD2d 381, 749 N.Y.S.2d 445 (2nd Dept. 2002).
In addition, defendants submitted an affirmed report from Xiaoping Zhou, OMD, L.Ac., Board Certified in Acupuncture. Mr. Zhou is a licensed acupuncturist, and not a physician, as such he is not competent to render a medical opinion. See Norris v. Metropolitan Life Insurance, 116 Misc 2d 296, 457 N.Y.S.2d 673 (1982), where the First Department determined that the practice of acupuncture is not the practice of medicine. Therefore, it would appear that a licensed acupuncturist is not competent to report on plaintiff's injuries. In addition, the report is inadmissible. Pursuant to CPLR 2106, a duly licensed physician, attorney, dentist or osteopath may affirm, otherwise the proper form is an affidavit. Therefore, the report of Mr. Zhou is not in admissible form.
Defendant also submitted a report from Robert Orlandi, M.D., an orthopedic surgeon. Dr. Orlandi examined plaintiff on May 6, 2003. As a result of his examination, Dr. Orlandi found normal cervical or lumbar lordotic curvatures, no muscular spasm, full range of motion of cervical spine, straight leg raising test was negative, and no radicular symptoms. As a result of his examination, Dr. Orlandi concluded that there were no abnormalities or disabilities as a result of the accident. The medical evidence submitted in support of summary judgment indicates that plaintiff has not suffered a serious injury or disability as a result of the accident, thereby shifting the burden to plaintiff to make a prima facie showing of serious injury.
Once the burden shifts, it is incumbent upon a plaintiff, in opposition to a defendant's motion, to submit proof of serious injury in admissible form. A claim of serious injury can be sustained by a chiropractic expert's designation of the numeric percentage of the loss of range of motion showing the extent or degree of the plaintiff's physical limitation; or by an expert's qualitative assessment, upon an objective basis, of a plaintiff's condition and compares the plaintiff's limitations to the normal function, purpose or use of the affected organ, member, function or system. Toure v. Avis Rent A Car Systems, 98 NY2d 345, 746 N.Y.S. 2d 865 (Ct.App. 2002).
Plaintiff has submitted a sworn affidavit from Dr. Jeff Mollins, a chiropractor, who had examined plaintiff approximately three years after the accident. Dr. Mollins diagnosed plaintiff with cervical and lumbar sprain/strain, cervical and lumbar radiculopathy, cervical and lumbar muscle spasm and tenderness. Dr. Mollins opined that plaintiff suffered the following permanent consequential limitations that were a result of said accident: 30% loss of her normal range of cervical motion, 36% loss of her normal range of lumbar motion, and 23% whole person impairment of the overall use of her spine. Dr. Mollins assessed plaintiff's limitations based on objective tests such as Yeomans, Soto Hall, Kemps, Brectrews, Adson's, Trendelberg, heel/toe, straight leg raises, lumbar and cervical flexion/extension, lumbar and cervical rotation, and foraminal compression test. Some of his findings include limitations of the cervical spine: flexion at 42 degrees (normal is 60), extension at 35 degrees (normal is 50), left and right rotation at 56 degrees (normal at 80), left and right lateral flexion at 28 degrees (normal at 40); limitations of the lumbar spine: flexion at 63 degrees (normal is 90), extension and left rotation at 21 degrees (normal is 30), right rotation at 21 degrees (normal is 30), left rotation at 15 degrees (normal is 30), left lateral flexion at 14 degrees (normal is 20), right lateral flexion at 10 degrees (normal is 20), straight leg test positive at 30 degrees left and 20 degrees right, Kemps positive right, patella reflex right, positive cervical compression test bilaterally. Dr. Mollins opined that these injuries are permanent in nature and are a direct result of said accident.
The medical evidence presented by plaintiff's chiropractor is sufficient to survive summary judgment. See Ramos v. Dekhtyar, 301 AD2d 428, 753 N.Y.S. 489 (1st Dept. 2003), where First Department found sufficient objective medical evidence to defeat summary judgment within a chiropractor's affidavit where the chiropractor determined there to be numeric limitations based on range of motion tests that were conducted by the chiropractor as an expert. The fact that Dr. Mollins' report is based on an examination that was conducted approximately three years after the accident goes to the weight of the evidence, not the admissibility. Brown v. Achy, 9 AD3d 30, 776 N.Y.S. 2d 56 (1st Dept. 2004).
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to non-moving party. Assaf v. Ropog Cab Corp., 153 AD2d 520, 544 N.Y.S.2d 834 (1st Dept. 1989). It is well-settled that issue finding, not issue determination, is the key to summary judgment. Rose v. Da Ecib USA, 259 AD2d 258, 686 N.Y.S.2d 19 (1st Dept. 1999). Summary judgment will only be granted if there are no material, triable issues of fact. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 165 N.Y.S.2d 498 (Ct.App. 1957). Whether or not the injuries discussed by Dr. Mollins were a result of the accident is a material issue that should be determined by a jury. In addition, the weight given to the medical opinion given by Dr. Mollins, which took place two or more years after the accident, is also proper determination for a jury. Ramos v. Dekhtyar, 301 AD2d 428, 753 N.Y.S. 489 (1st Dept. 2003). The nearly three year gap in treatment between plaintiff's regular visits, and recent examination conducted by plaintiff's chiropractor, go to the weight of the evidence, not the admissibility. Where, as here, plaintiff's chiropractor averred that plaintiff had reached her maximal medical improvement, has with minimal adequacy, explained the treatment gap in this case. To find differently at this juncture would, according to precedent, invade the jury's province. Brown v. Achy, 9 AD3d 30, 776 N.Y.S. 2d 56 (1st Dept. 2004).
Liability of Defendant McCauley
Defendant McCauley moves this court for summary judgment on the issue of liability. In favor of the summary judgment motion, McCauley relies on her sworn deposition testimony, where she testified that she was not speeding as she proceeded through the green light and that Basdeo's car was not visible because it was coming out of a tunnel. She also relied on the sworn deposition testimony of Mabendranauth Basdeo, who stated that he did not see the traffic light, and on the sworn deposition testimony of plaintiff, who stated that McCauley was not speeding as she proceeded through the green light. McCauley also relies on the statement that plaintiff made during the sworn deposition, that no one could see Basdeo's car coming out of the tunnel, which is purely conjectural. McCauley's claim is that no triable issue concerning her liability has been raised. The court disagrees.
It is well-settled that a driver of a motor vehicle must "exercise reasonable care notwithstanding the invitation to proceed by the green light." Siegel v. Sweeney, 266 AD2d 200, 697 N.Y.S. 2d 317 (2nd Dept. 1999). Furthermore, under the doctrine of comparative negligence, a driver who lawfully enters an intersection may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection. Costalas v. City of New York, 143 AD2d 573, 532 N.Y.S. 2d 868 (1st Dept. 1988).
In order to defeat a motion for summary judgment, the plaintiff must raise a triable issue of fact as to whether the defendant was at fault in causing the accident or whether defendant could have done anything to avoid the collision. Casanova v. NYC Transit Authority, 279 AD2d 495, 719 N.Y.S. 125 (2nd Dept 2001). Furthermore, the courts have differentiated between those cases where evidence of a party's negligence has been submitted, Boston v. Dunham, 274 AD2d 708, 711 N.Y.S. 2d 54 (3rd Dept. 2000), and those where allegations of negligence are supported only by hope, surmise and conjecture. O'Hara v. Tonner, 288 AD2d 513, 732 N.Y.S. 2d 147 (3rd Dept. 2001).
Plaintiff asserts that issues of fact concerning McCauley's comparative negligence should be submitted to the jury. Plaintiff submits that McCauley breached her duty of reasonable care by failing to keep a proper lookout and as a result, McCauley failed to observe the other vehicle prior to the accident. The proof submitted was the sworn deposition testimony of McCauley, whereby she stated that she did not see the other vehicle prior to the moment of collision. Plaintiff asserts that McCauley, being bound "to see what by the proper use of her senses she might have seen," Weigand v. United Traction Co., 221 NY 39, 42, 116 N.E. 345 (Ct.App. 1917), should have observed the other vehicle prior to the moment of impact; thus enabling her to take some form of evasive action in an attempt to avoid said accident. Siegel v. Sweeney, 266 AD2d 200, 697 N.Y.S. 2d 317 (2nd Dept. 1999). Therefore, questions of fact exist as to McCauley's liability. In addition, plaintiff argues that "negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination. " Ugarizza v. Schmieder, 46 NY2d 471, 414 N.Y.S.2d 304 (Ct.App. 1979).
Plaintiff has raised a triable issue of fact as to whether McCauley was at fault in causing the accident and/or whether she could have done anything to avoid the collision. A material issue of fact exists as to whether McCauley exercised reasonable care in the operation of her motor vehicle by failing "to see what by the proper use of her senses she might have seen," see Weigand v. United Traction Co., 221 NY 39, 42, 116 N.E. 345 (1917). Even if McCauley had a greed light and was not speeding as she proceeded through the intersection, she may still be found comparatively negligent. Although McCauley may have had the right-of-way and was entitled to anticipate that Basdeo would comply with the directive to stop and yield, Rowe v. Harrison, 303 AD2d 863, 758 N.Y.S.2d 693 (3rd Dept. 2003), if the circumstances were such that McCauley should have observed Basdeo's vehicle, she was not authorized to proceed without reference to his car, and was "bound to use such care to avoid collision as an ordinary prudent man would have used under the circumstances." Walker v. Dartmouth Plan Leasing Corporation, 180 AD2d 952, 580 N.Y.S.2d 535 (3rd Dept. 1992). Whether or not McCauley should have observed the car prior to the moment of impact is a question of fact that must be determined by a jury. Furthermore, "because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve." Costalas v. City of New York, 143 AD2d 573, 532 N.Y.S. 2d 868 (1st Dept. 1988). Therefore, McCauley's motion for summary judgment on the issue of liability is hereby denied. Given that McCauley's motion for summary judgment is denied, the court need not make a determination as to the liability of Basdeo.
CONCLUSION
Considered in the light most favorable to the plaintiffs, the evidence adduced is insufficient to conclude, as a matter of law, that the plaintiff has not sustained a statutory serious injury as a result of this accident. Accordingly, the motions by defendants for summary judgment on the threshold issue is hereby denied.
Furthermore, a material issue of fact concerning the negligence of McCauley exists. Accordingly, the motion by defendant McCauley for summary judgment in favor of McCauley is hereby denied.
This constitutes the decision and Order of this Court.