Opinion
Index No. 308376/12 Case Nos. 2016-00837, 2022-03939, 16907-, 16908
12-15-2022
Clephane B. BURGESS et al., Plaintiffs–Appellants, v. AVIGNON TAXI, LLC, et al., Defendants–Respondents, DT Media Group, Defendant.
Parker Waichman, LLP, Port Washington (Jay L.T. Breakstone of counsel), for appellants. Abrams Fensterman, LLP, White Plains (Robert A. Spolzino of counsel), for respondents.
Parker Waichman, LLP, Port Washington (Jay L.T. Breakstone of counsel), for appellants.
Abrams Fensterman, LLP, White Plains (Robert A. Spolzino of counsel), for respondents.
Renwick, J.P., Shulman, Rodriguez, Higgitt, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered October 29, 2015, which granted defendants' motions for summary judgment dismissing the complaint on the ground that plaintiff Clephane B. Burgess did not sustain a serious injury within the meaning of Insurance Law § 5102, and order, same court and Justice, entered February 1, 2016, insofar as it denied plaintiffs' motion to renew, unanimously affirmed, without costs. Appeal from denial of reargument, unanimously dismissed, without costs, as taken from an nonappealable order.
Defendants established prima facie that plaintiff did not sustain a serious injury to his cervical or lumbar spine by presenting the report of their neurologist, who found normal ranges of motion in plaintiff's spine with no evidence of neurological impairment (see Stickney v. Akhar, 187 A.D.3d 425, 132 N.Y.S.3d 120 [1st Dept. 2020] ). Contrary to plaintiff's contentions, "the mere fact that defendants' expert did not address findings in diagnostic and operative reports indicating that plaintiff had a herniated disc does not mean that defendants failed to meet their initial burden" ( Onishi v. N & B Taxi, Inc., 51 A.D.3d 594, 595, 858 N.Y.S.2d 171 [1st Dept. 2008] ; see also Levinson v. Mollah, 105 A.D.3d 644, 963 N.Y.S.2d 653 [1st Dept. 2013] ). As for plaintiff's 90/180 day claim, defendants met their burden by submitting plaintiff's testimony that he returned to work two weeks after the accident and was never confined to his bed or his home (see Pakeman v. Karekezia, 98 A.D.3d 840, 950 N.Y.S.2d 378 [1st Dept. 2012] ).
In opposition, plaintiff failed to raise a triable issue of fact as to whether he sustained an injury involving permanent consequential or significant limitations in use, as the only admissible medical evidence he submitted were MRI reports finding herniated discs in the cervical and lumbar spine, as well as facet arthrosis. "Proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury" ( Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ). The court properly disregarded the unaffirmed medical reports and records of treating physicians, which "lacked probative value" (see Hernandez v. Ramirez, 19 A.D.3d 192, 193, 796 N.Y.S.2d 605 [1st Dept. 2005] ). The defense expert's review of such unaffirmed reports "did not open the door to [plaintiff's] reliance on them, since defendants did not submit such reports in support of the motion, nor did their experts rely on them in forming their conclusions" ( Hernandez v. Almanzar, 32 A.D.3d 360, 361, 821 N.Y.S.2d 30 [1st Dept. 2006] ). As for the chiropractor's unsworn report of a more recent examination, the motion court correctly disregarded it because it failed to comply with the rule that "reports of chiropractors must be subscribed before a notary or other authorized official" ( Barry v. Arias, 94 A.D.3d 499, 942 N.Y.S.2d 57 [1st Dept. 2012] ; see CPLR 2106 ).
Plaintiff's motion for renewal was properly denied, because he again failed to submit affirmed or sworn medical reports from his medical providers (see Hernandez v. Ramirez, 19 A.D.3d at 193, 796 N.Y.S.2d 605 ; cf. Robinson v. Nelson, 172 A.D.3d 642, 103 N.Y.S.3d 373 [1st Dept. 2019] ). Since those reports contain diagnoses and medical opinions, they cannot be submitted as certified business records under CPLR 4518 (see Rickert v. Diaz, 112 A.D.3d 451, 452, 976 N.Y.S.2d 80 [1st Dept. 2013] ; see also Komar v. Showers, 227 A.D.2d 135, 136, 641 N.Y.S.2d 643 [1st Dept. 1996] ).
We note that, even if these medical records were to be considered, plaintiff still would have failed to raise a triable issue of fact as to whether he sustained a serious injury under Insurance Law § 5102. Plaintiff's own x-ray report found degenerative and osteoarthritic disc disease in his lumbar spine, which was not addressed or explained by his chiropractor or other providers (see Fathi v. Sodhi, 146 A.D.3d 445, 2016446, 44 N.Y.S.3d 406 [1st Dept. 2017] ; see also Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044, 993 N.Y.S.2d 1 [1st Dept. 2014], affd 24 N.Y.3d 1191, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2015] ). Furthermore, his chiropractor failed to explain the inconsistency between his findings of limitations in range of motion three years after the accident, and plaintiff's last physical therapy notes showing that six months after the accident plaintiff could "do anything" and felt better (see e.g. Dorrian v. Cantalicio, 101 A.D.3d 578, 578, 957 N.Y.S.2d 47 [1st Dept. 2012] ). As to the 90/180-day claim, none of the medical records substantiates plaintiff's claim that he was unable to perform activities of daily living during the relevant time period (see De La Rosa v. Okwan, 146 A.D.3d 644, 45 N.Y.S.3d 443 [1st Dept. 2017], lv denied 29 N.Y.3d 908, 57 N.Y.S.3d 713, 80 N.E.3d 406 [2017] ).