Opinion
2465/08.
Decided July 30, 2010.
Joseph Russo, Attorney for Plaintiffs, Brooklyn, NY.
Katz Associates, Attorneys for Defendant, Brooklyn, NY.
By notice of motion filed on January 19, 2010, under sequence number two, defendant Paulette McIntosh-Vann (McIntosh-Vann), s/h/a Paulette McIntosh and Paulette Van, moves pursuant to CPLR § 3212 for an order dismissing the complaint on the basis that plaintiff Rolano Charles (Charles) did not sustain a serious injury as contemplated by Insurance Law § 5102(d). Charles opposes the motion. Plaintiff Stephen St. Hilaire (Hilaire) has withdrawn his sole claim for property damage.
BACKGROUND
On January 23, 2008, plaintiffs commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. The complaint sets forth two causes of action. The first is on behalf of Charles for damages due to personal injuries. The second is Hilaire's property damage claim. As previously noted, the second claim has been withdrawn. McIntosh-Vann joined issue by her answer, dated March 13, 2008. The complaint and bill of particulars allege the following salient facts. On December 26, 2006, at about 8:15 a.m., Charles was driving his automobile in the intersection of Flatlands Avenue and East 80th Street. On that date and time and location, McIntosh-Vann's negligently drove and collided her vehicle into Charles' vehicle causing serious injury to Charles.
MOTION PAPERS
McIntosh-Vann's motion papers consist of a memorandum of law, an affirmation of her counsel and eight annexed exhibits labeled A though H. Exhibit A is a copy of the instant summons and verified complaint along with a copy of defendant's answer, a demand for a verified bill of particulars, and various discovery demands made by defendant. Exhibit B is a copy of plaintiffs' verified bill of particulars. Exhibit C is a copy of the certified but unsigned transcript of the deposition of Rolano Charles, taken on October 2, 2009. Exhibit D is a copy of a note of issue which was filed on November 20, 2009. Exhibit E is a copy of Justice Spodek's order dated October 20, 2009, directing plaintiff to appear for an independent medical examination by November 15, 2009 and to file a note of issue by December 18, 2009. Exhibit F is a copy of the narrative report of Brian Wolin, D.C., a chiropractor, of his examination of Charles conducted on March 2, 2007. Exhibit G is the affirmed, narrative report of Dr. Robert L. Michaels, M.D., an orthopedic surgeon, of his examination of Charles conducted on November 5, 2009. Exhibit H is the affirmed, narrative report of Dr. Scott S. Coyne, M.D., a radiologist, of his review of Charles' MRI and radiology records.
Charles opposes the summary judgment motion with an affirmation of his counsel annexed to which are several unlabeled exhibits. The first exhibit is a copy of a police accident report. The second is a copy of plaintiffs' verified bill of particulars. The third is a copy of the affirmed, narrative report of Dr. Jean R. Adrien, M.D. The fourth is an affidavit of Charles. The fifth is a series of un-affirmed documents which purport to have been prepared Dr. Joseph L. Paul, M.D. The sixth is a barely legible, un-affirmed document which purports to have been prepared by Mark Shapiro, M.D. The seventh is an un-affirmed document which purports to have been prepared by Sasan Azar, M.D. The eighth is another barely legible, un-affirmed document which purports to have been prepared by Mark Shaprio, M.D. The ninth is an un-affirmed, narrative report of Dr. Melchias N. Mukendi. The tenth is a memorandum of law.
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).
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).
Charles provided the defendant with a verified bill of particulars dated June 5, 2009. In paragraph six he alleged various injuries to his back and right wrist.
In paragraph eight, Charles alleges that these injuries are serious as that term is defined within Insurance Law § 5102(d) on the basis that they resulted in his being completely disabled for not less than 90 days during the 180 days immediately following the accident as well as on the basis that they are permanent.
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 defendant McIntosh-Vann to prevail on her motion for dismissal of the complaint, she 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 her motion, she submitted the medical reports Brian Wolin, D.C., a chiropractor, Dr. Robert L. Michaels, M.D., an orthopedic surgeon, and Dr. Dr. Scott S. Coyne, M.D., a radiologist.
CPLR § 2106, which permits attorneys, physicians, osteopaths, and dentists who are not parties to an action to serve or file affirmations of truth in lieu of affidavits does not apply to permit chiropractors to do the same in support of or in opposition a motion in a personal injury action ( Casas v. Montero , 48 AD3d 728 [2nd Dept. 2008]). However, the unsworn report of a chiropractor may be submitted by a defendant in support of a motion for summary judgment if the chiropractor who produced the report was procured by plaintiff. Defendant McIntosh-Vann fails to unequivocally identify Brian Wolin as having been procured by plaintiff. Rather, she merely identifies him in ambiguous fashion as "plaintiff's no-fault physician". The court disregards Wolin's affirmation because it is not an affidavit and therefore not in admissible form.
In order for a plaintiff to recover for a serious injury under the 90/180 provision of § 5102 (d), the plaintiff must allege a "medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" ( See, Insurance Law § 5102 (d)). In Licari v Elliott, 57 NY2d 230, 236, the Court of Appeals, in interpreting § 5102 (d), stated, "The words substantially all' should be construed to mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment." Under Licari, "substantially all" means that a person has been "curtailed from performing his usual activities to a great extent, rather than some slight curtailment" ( id.).
Thus, plaintiff's own deposition testimony precludes his recovery for non-economic loss under the 90/180 category of § 5102 (d). Plaintiff's deposition testimony establishes that Charles returned to work and performed the same activities he did prior to the accident, but "not with the same speed", and he took a total of fewer than 10 days off as a consequence of his injuries from the accident. Clearly then, Charles was not curtailed from performing his daily activities to a "great extent", as the Licari holding of the Court of Appeals would require him to have been.
Furthermore, "[w]here a plaintiff's testimony indicates that he or she was not incapacitated for the requisite period. . . the defendant need not submit a medical opinion in order to meet their burden" ( Walcott v. Ocean Taxi, Inc., 22 Misc 3d 1117(A) [NY Sup. 2009]).
As plaintiff's own deposition testimony vitiates his claim of entitlement to recovery for non-economic loss pursuant to the 90/180 provision of § 5102 (d), his sole remaining claim of entitlement to recovery for non-economic loss is predicated upon his claim that his injuries from the accident are permanent in nature.
Defendant meets her prima facie burden of demonstrating entitlement to judgment as a matter of law through her presentation of the affirmed, narrative reports of Drs. Michaels and Coyne.
Dr. Robert L. Michaels examined Charles on November 5, 2009. He indicates in his affirmation that Charles presented himself with normal ranges of motion in all parts of his body which he identified as injured in his bill of particulars.
Dr. Coyne examined a series of radiological images taken on January 23, 2007, which date was within one month of the December 26, 2006 accident, and concluded that there existed no osseous or soft tissue abnormality or other trauma causally related to the subject accident.
In order for plaintiff to raise a triable issue of fact, plaintiff must present proof of the plaintiff's condition contemporaneous with the subject accident.
The only affirmed medical report submitted by Charles in opposition to the motion is the report of Dr. Jean Adrien, M.D. Dr. Adrien's report is dated March 19, 2010, more than three years past the date of the subject accident. It is therefore insufficient to raise an issue of fact ( Felix v. New York City Transit Authority, 32 AD3d 527 [2nd Dept. 2006]).
For the foregoing reasons the motion of defendant McIntosh-Vann to dismiss the complaint pursuant to CPLR § 3212 and Insurance Law § 5102(d) is granted.
The foregoing constitutes the decision, order, and judgment of the court.