Opinion
27022/06.
Decided July 21, 2010.
Nicole N. Sinclair, Esq., Schachter Levine, LLP, New York, New York, Counsel for plaintiff.
David H. Knel, Esq., Baker, McEvoy, Morrissey Moskovits, P.C., New York, New York, Counsel for the defendants.
By notice of motion filed on January 21, 2010, under sequence number six, defendants Carlos Berrios (Berrios) and Jib II Express (JIIE) jointly move pursuant to CPLR § 3212 for an order dismissing the complaint on the basis that plaintiff Edwin H. Anderson (Anderson) did not sustain a serious injury as contemplated by Insurance Law § 5102(d). Anderson opposes the motion.
BACKGROUND
On September 8, 2006, Anderson commenced this action for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. Berrios and JIIE joined issue by their verified answer dated November 2, 2006. Anderson's complaint and bill of particulars allege the following salient facts. On September 17, 2003, at approximately 10:00 p.m., plaintiff was driving his 1981 Buick motor vehicle at the intersection of Bedford and Dekalb Avenues in Brooklyn, New York. At the same time and location, Mr. Berrios negligently drove a motor vehicle owned by JIIE and collided with plaintiff's vehicle causing plaintiff to sustain serious physical injury.
MOTION PAPERS
The defendants' motion papers consist of a memorandum of law, an affirmation of their counsel and seven annexed exhibits labeled A though G. Exhibit A is a copy of the instant summons and verified complaint. Exhibit B is the defendants' verified answer and demand for a bill of particulars. Exhibit C is Anderson's verified bill of particulars. Exhibit D is Justice Spodek's order dated December 15, 2009 which, among other things, extended the date by which the note of issue in the instant action must be filed to March 31, 2010. Exhibit E is the affirmed, narrative report of Dr. Sol Farkas, an orthopedic surgeon, of his examination of Anderson conducted on October 12, 2009. Exhibit F is the affirmed, narrative report of Dr. Edward Weiland, a neurologist, of his examination of Anderson conducted on January 30, 2008. Exhibit G is the certified but unsigned transcript of Anderson's testimony taken at a deposition conducted on June 4, 2009.
Anderson opposes the summary judgment motion with an affirmation of his counsel and three annexed exhibits labeled A through C. Exhibit A is Justice Silber's order, dated March 8, 2010, which, among other things, extended the date by which the note of issue in the instant action must be filed to May 19, 2010. Exhibit B is an affidavit of the efforts made to obtain certain medical records. Exhibit C is an un-affirmed medical report of Dr. Marcel Benoit, dated May 19, 2010.
Berrios and JIIE replied to Anderson's opposition papers with an affirmation of their counsel.
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 NY2d 320).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 ( Guiffirda v. Citibank, 100 NY2d 72. 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 NY2d 923). 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 NY2d at 324).
Anderson provided the defendants with a verified bill of particulars dated June 5, 2009. In paragraph eleven he alleged various injuries to his back, left knee, and left hip.
In that same paragraph, Anderson alleges that these injuries are permanent in nature and that he will be restricted and prevented from leading a normal life and will require ongoing medical care and attention. Anderson does not allege that he has suffered 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 90 days during the 180 days immediately following the accident.
Insurance Law § 5104(a) provides that in any action by, or on behalf of, a covered person against another covered person for personal injuries arising out of negligence in the operation of a motor vehicle in New York, there shall be no right of recovery for non-economic loss, i.e., pain and suffering, except in the case of a "serious injury" ( Toure v. Avis Rent a Car Systems, Inc., 98 NY2d 345, 350).
In the context of a motion for summary judgment, 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 concluded that no objective medical findings support the plaintiff's claim of serious injury (see Grossman v. Wright, 268 AD2d 79, 83-84 [2nd Dept., 2000]).
In order for defendants Berrios and JIIE to prevail on their motion for dismissal of the complaint, they must establish a prima facie entitlement to judgment that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident ( Toure v. Avis Rent A Car Sys., 98 NY2d 345).
In support of their motion, defendants submitted the affirmed medical reports of Dr. Farkas, an orthopedic surgeon, and Dr. Weiland, a neurologist.
Dr. Farkas examined Anderson on October 12, 2009. Dr. Farkas, found restrictions in range of motion in Anderson's hips and back, but normal range of motion in his left knee. Dr. Farkas opined that although Anderson presented himself with less than normal ranges of motion, the decreased ranges of motion appeared to be "theatrical and unrelated to true pathology." He went on to state, "[Anderson] presents with 10 degrees of forward flexion of the lumbar spine, yet sits and bends fully forward to remove his shoes. His show of decreased range of motion of the cervical spine is without any objective findings. His decreased range of motion of the hips appears to be arthritic in nature. The swelling about the lower extremities appears to be vascular and not traumatic." Dr. Farkas did not state the objective basis for his conclusion that Anderson had arthritis or vascular anomalies. He did state that he was not provided with any of Anderson's medical records to review.
Where a physician fails to set forth the foundation for the conclusion or conclusions of that physician's independent medical examination report, the court may properly disregard that physician's conclusion or conclusions ( See, Buono v. Sarnes , 66 AD3d 809 [2nd Dept., 2009] citing Franhini v. Palmieri, 1 NY3d 536 and Luciano v. Luchsinger , 46 AD3d 634 [2nd Dept. 2007]). Dr. Farkas's conclusions that arthritis or some kind of vascular ailment might be the cause of Anderson's decreased range of motion in his joints are entirely unsupported by any objective foundation. Consequently, the court interprets the report of Dr. Farkas to indicate that Anderson does indeed suffer from a limited range of motion in those parts of his body identified in his bill of particulars. Therefore, Dr. Farkas's report does not constitute a prima facie showing that Anderson did not suffer a serious injury within the meaning of the insurance law.
Dr. Weiland performed an examination on Anderson on January 30, 2008. According to Dr. Weiland, Anderson presented himself with normal range of motion in his back. However, Dr. Weiland offered no opinion about Anderson's left knee. Thus, Dr. Weiland's report, standing on its own, would be of no aide to defendants in meeting their prima facie burden of entitlement to judgment as a matter of law.
The reports of Drs. Farkas and Weiland may be summarized as follows: Dr. Farkas found that Anderson had normal range of motion in his left knee, but less than normal ranges of motion in his back and hips, while Dr. Weiland says nothing of Anderson's left knee, but found that Anderson had normal ranges of motion in his back and hips.
The court notes that Dr. Farkas and Dr. Weiland disagree about what are normal ranges of motion for Anderson's back. It is equally clear that notwithstanding his unfounded conclusion that Anderson's injuries were feigned or resulted from factors other than the subject accident, Dr. Farkas, applying his own "normal" ranges of motion, found that the ranges of motion of Anderson's back were abnormal, and that Dr. Weiland, applying his own "normal" ranges of motion, found that the ranges of motion of Anderson's back were normal. Thus, the reports of Drs. Farkas and Weiland create an issue of fact between themselves as to whether the range of motion in Anderson's joints is normal.
Furthermore, in the eyes of this court, the fact that Drs. Farkas and Weiland apply different "normal" ranges of motion for various joints renders it impossible for the court to find that defendant has made a prima facie showing of entitlement to judgment as a matter of law that Anderson has not suffered a serious injury. This court is firmly of the opinion that the contradiction which inheres in a presentation of the opinions of multiple experts who apply multiple standards of what is "normal" in their assessment of a given phenomenon sufficiently suggests, in and of itself, the existence of triable issues of fact such that a litigant who makes such a presentation in a motion for summary judgment should never be granted relief.
This position is not unique to part 52 of this court. "When a defendant is seeking dismissal of an action on motion without a trial, it does not seem too burdensome that the defendant show agreement of its experts that the plaintiff's condition is normal.' There may be a range of what is deemed normal', or it may vary with age or other circumstances, but here neither . . . [expert] suggests any such qualification on his opinion" ( Knokhinov v. Murray, 27 Misc 3d. 1211(A) [NY Sup. 2010]).Since Berrios and JIIE failed to meet their prima facie burden, the court need not consider whether plaintiff's opposition papers were sufficient to raise a triable issue of fact ( Smith v. Rodriguez , 69 AD3d 605 [2nd Dept. 2010]).
For the foregoing reasons the joint motion of Berrios and JIIE to dismiss the complaint pursuant to CPLR § 3212 and Insurance Law § 5102(d) is denied.
The foregoing constitutes the decision, order, and judgment of the court.