Opinion
0972/05.
Decided May 1, 2007.
ROBERT J. DI GIANNI, JR., ESQ., PHILIP J. SPORN ASSOCIATES, Attorneys for Plaintiff, New York, New York.
DEBRA A. KELLMAN, ESQ., JOHN C. BURATTI ASSOCIATES, Yonkers, New York, Attorneys for Defendant.
The plaintiff moves for summary judgment on the issue of the defendant's liability for negligently causing the motor vehicle accident which is the subject of this action. The defendant moves for summary judgment dismissing the plaintiff's complaint on the ground that the plaintiff did not suffer a serious injury as defined by Insurance Law § 5102.
It is well settled that in order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." ( Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067.) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. ( Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681.) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. ( Zuckerman v. City of New York, 49 NY2d 557, 562.)
LIABILITY
The plaintiff has presented evidence that at the time of the accident, he was stopped behind five or six cars waiting for the red light to change when the defendant's vehicle struck the plaintiff's vehicle in the rear. It has been held that "a rear-end collision into a stopped automobile creates a prima facie case of negligence with respect to the operator of the moving vehicle, imposing a duty of explanation on its operator." ( Danza v. Longieliere, 256 AD2d 434, 435 [2d Dept. 1998] appeal dismissed 93 NY2d 957.) The defendant has not provided an affidavit setting forth such an explanation in opposition to this motion. I find that there are no triable issues of fact as the defendant has failed to overcome the presumption that he was negligent in causing the subject accident. ( Hurley v. Cavitolo, 239 AD2d 559 [2d Dept. 1997].) Therefore, it is ordered that the plaintiff's motion is granted and he shall have summary judgment on the issue of the defendant's liability for negligently causing the subject accident. SERIOUS INJURY The plaintiff's bill of particulars asserts that he has suffered a permanent, consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; and, a medically determined injury or impairment of a non-permanent nature which prevents him from performing substantially all of the material acts which constitute the plaintiff's usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the injury. The defendant has presented competent evidence establishing, on a prima facie basis, that the plaintiff has not suffered a serious injury as defined by Insurance Law § 5102 as a result of the subject motor vehicle accident.
The plaintiff relies upon the affirmations of Robert Waxman, M.D.; Robert Diamond; Luis Mendoza, M.D.; Victor Khabie, M.D.; and, Debra Petrucci, M.D. in opposition.
Dr. Waxman affirms findings based on his review of an MRI on December 15, 2004. Dr. Waxman finds that the plaintiff has suffered a broad based disc herniation at C6-C7 with ventral epidural space effacement and bilateral proximal neural foraminal stenosis. He makes no conclusion that this condition represents a permanent, consequential limitation of use of a body organ or member or is a significant limitation of use of a body function or system. There is no assertion that the plaintiff was prevented from performing his usual and customary daily activities for a ninety day period. Additionally, Dr. Waxman fails to affirm that the injuries he has diagnosed are causally related to the subject accident. I find that Dr. Waxman's affirmation fails to establish a triable issue of fact.
Dr. Diamond has provided an affirmation with regard to an MRI taken on January 9, 2006. Dr. Diamond diagnoses certain conditions in the plaintiff which were revealed by the MRI. However, Dr. Diamond does not conclude that the plaintiff has suffered a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system. There is no assertion that the plaintiff was prevented from performing his usual and customary daily activities for a ninety day period. Additionally, Dr. Diamond does not make a causal link between the plaintiff's physical condition and the subject automobile accident. I find that Dr. Diamond's affirmation fails to establish a triable issue of fact.
Dr. Khabie conducted an examination of the plaintiff on February 20, 2006 and diagnosed a "left shoulder impingement syndrome, AC joint arthrosis, as well as partial-thickness cuff tear activated by a motor vehicle accident of 10/01/04." Dr. Khabie's report does not indicate what objective medical findings he relied upon to make his conclusions and does not list a description of the tests and procedures which would reveal those objective medical findings. ( Herman v. Church, 276 AD2d 471 [2d Dept. 2000].) Dr. Khabie has failed to conclude that the plaintiff suffered a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system. There is no assertion that the plaintiff was prevented from performing his usual and customary daily activities for a ninety day period. I find that Dr. Khabie's affirmation fails to establish a triable issue of fact.
The plaintiff has also submitted a physiatric and electrodiagnostic evaluation performed on November 18, 2005 by Nicholas Jones and Scott Jones. The report concludes that the plaintiff suffers from cervical strain, cervical derangement, cervical pain and muscle spasm and cervical radiculitis. The report does not conclude that the plaintiff has suffered a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function of system. There is no assertion that the plaintiff was prevented from performing his usual and customary daily activities for a ninety day period. There is no causal link to the motor vehicle accident. I find that the report of Drs. Jones fails to establish a triable issue of fact.
The report submitted by Dr. Petrucci stem from a medical examination of the plaintiff which took place on March 29, 2005. Dr. Petrucci states that the etiology of the plaintiff's complaints is "uncertain," and she makes no causal connection to the subject motor vehicle accident. Dr. Petrucci does not conclude that the plaintiff suffered a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system as a result of the subject motor vehicle accident. There is no assertion that the plaintiff was prevented from performing his usual and customary daily activities for a ninety day period. Dr. Petrucci fails to establish a triable issue of fact.
None of the above findings were based on a recent medical examination of the plaintiff and they have no probative value for that reason alone. ( Grossman v. Wright, 268 AD2d 79, 84 [2d Dept. 2000].)
Dr. Mendoza performed examinations on the plaintiff on November 16, 2005; December 15, 2005; January 18, 2006; March 6, 2006; May 30, 2006; and, January 16, 2007. Dr. Mendoza's findings from the most recent examination concluded that the plaintiff suffered a restricted range of motion in his neck, his thoracic and lumbar spine, and in his left shoulder. While Dr. Mendoza has indicated the degree of plaintiff's respective ranges of motion, he has failed to describe all of the objective tests employed in making those findings. ( Palacios v. Lee, 291 AD2d 387, 388 [2d Dept. 2002]; Grossman, supra.) Dr. Mendoza avers that:
"In the course of my examination, evaluation, diagnosis, and treatment of Mr. Scotto, I reviewed and relied upon the aforementioned medical records of Dr. Robert Waxman, Dr. Robert Diamond, and Drs. Nicholas and Scott Jones."
It is well settled that these diagnostic examinations, prepared by doctors other than Dr. Mendoza, cannot constitute the requisite objective proof needed to establish that the plaintiff sustained a serious physical injury. ( Merisca v. Alford, 243 AD2d 613 [2d Dept. 1997].)
The plaintiff has not presented any objective evidence that he sustained a medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the subject accident. The plaintiff has presented no evidence of confinement, incapacity or any other substantial curtailment of daily activities sufficient to make out a prima facie showing of serious injury within the "90\180" category. ( Hewan v. Callozzo, 223 AD2d 425 [1st Dept. 1996]; Rivera v. Francis , 7 AD3d 690 [2d Dept. 2004].)
I find that the plaintiff has failed to submit any objective medical proof that he has suffered a serious injury and therefore has failed to raise a triable issue of fact with regard to this motion. ( Eastman v. Holland , 19 AD3d 444 [2d Dept. 2005].) Therefore, it is ordered that the defendant's motion is granted and the plaintiff's complaint is dismissed as the plaintiff has not suffered a serious injury as defined by Insurance Law § 5102.
The foregoing constitutes the decision and order of the Court.