Opinion
26144/03.
Decided March 29, 2006.
Upon the foregoing papers it is ordered that the within motion for an Order granting summary judgment in favor of defendant NYCTA and dismissing the complaint asserted against it on the ground that the plaintiff Regina Cooper failed to establish that she sustained a serious injury pursuant to Insurance Law § 5102(d) is denied for the reasons stated below. The within motion for an Order granting the same relief to defendant NYCTA on the ground that plaintiff infant Sharee Cooper failed to establish that she sustained a serious injury pursuant to Insurance Law § 5102(d) is denied for the reasons stated below. The within motion for an Order granting the same relief to defendant NYCTA on the ground that plaintiff infant Janay Daniel failed to establish that she sustained a serious injury pursuant to Insurance Law § 5102(d) is granted for the reasons stated below. The cross motion on behalf of plaintiffs is denied in its entirety for the reasons stated below:
In this personal injury action arising from a motor vehicle accident that occurred on October 4, 2002, the plaintiffs, as defined above, claim that they sustained serious injuries as defined by Insurance Law § 5102(d) and seek to recover damages.
The Court notes that the movant is not seeking summary judgment in its favor as against plaintiffs Melvin Cooper or Donna Daniel. The cause of action asserted in the complaint on behalf of plaintiff Melvin Cooper is based on the loss of services of his spouse, plaintiff Regina M. Cooper and the cause of action asserted in the complaint on behalf of plaintiff Donna Daniel is based on the loss of services of her daughter, plaintiff infant Janay Daniel. ( See Exhibit B annexed to the moving papers.)
On this motion for summary judgment, defendant NYCTA has the initial burden to establish a prima facie case that each plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d). ( See Gaddy v. Eyler, 79 NY2d 955.) In support of the motion, the defendant NYCTA submits the following: with respect to plaintiff Regina Cooper, the affirmed medical report of neurologist Sarasavani Jayaram referencing a neurological examination conducted on December 15, 2004 (Exhibit E) and the affirmed medical report of orthopedist Wayne Kerness referencing an orthopedic examination conducted on December 15, 2004 (Exhibit F); with respect to plaintiff infant Janay Daniel, the affirmed medical report of orthopedist Wayne Kerness referencing an orthopedic examination conducted on December 15, 2004 (Exhibit G) and the affirmed medical report of neurologist Sarasavani Jayaram referencing an examination conducted on December 15, 2004 (Exhibit H); and with respect to plaintiff infant Sharee Cooper, the affirmed medical report of neurologist Sarasavani Jayaram referencing an examination conducted on December 15, 2004. ( See Exhibit I.)
With respect to infant Sharee Cooper, the affirmed medical report of neurologist Sarasavani Jayaram referencing an examination conducted on December 15, 2004 is insufficient to establish a prima facie case that infant Sharee Cooper sustained a serious injury as a result of the underlying accident because it fails to address the claims of vestibular dysfunction and left shoulder pain. ( See Villavicencio v. Mieles, 7 AD3d 517; Minori v. Hernandez Trucking Co., Inc., 239 AD2d 322.)
With respect to plaintiffs Regina Cooper and infant Janay Daniel, this evidence is sufficient to establish a prima facie case that neither plaintiff sustained a serious injury as a result of the underlying accident. ( See Nitti v. Clerrico, 98 NY2d 345; Fusco v. Barnwell House of Tires, Inc., 16 AD3d 620; Peralta v. Carta, 298 AD2d 373.)
Consequently, the burden now shifts to these plaintiffs to come forward with sufficient evidence to raise a triable issue of fact as to whether either of them sustained a serious injury. ( See Franchini v. Palmieri 1 NY3d 536 supra; Gaddy v. Eyler, 79 NY2d 955.) In order to establish that a triable issue of fact exists that a serious injury was sustained within the meaning of the Insurance Law, the plaintiffs must "offer proof in admissible form." ( See Franchini v. Palmieri, 1 NY3d at 537; Zuckerman v. City of New York, 49 NY2d 557.)
In the case at bar, the plaintiff Regina Cooper submits, in opposition to the motion, unsworn MRI reports of the lumbar and cervical spines ( see Exhibit 8) and the affirmed neurological report of Dr. Ira Casson dated September 2, 2005 ( see Exhibit 9). Dr. Casson improperly relied upon the unsworn magnetic resonance imaging (MRI) reports prepared by Regina Cooper's radiologist ( see Vucic v. Rodriguez, 2 AD3d 437) in rendering his opinion regarding her complaints of back pain. However, at plaintiff's next examination which occurred on December 5, 2002 Dr. Casson diagnosed her as suffering from cervical and lumbar radiculopathies requiring physical therapy, chiropractic treatment and acupuncture. After three to four months of treatment, plaintiff's No-Fault benefits were terminated. The gap in treatment is, therefore, adequately explained. At the September 2, 2005 examination Dr. Casson observed and set forth range of motion losses in his report. He also performed a straight leg raising test which yielded positive results. The results of a straight leg lifting examination may be considered as objective evidence of a serious injury. ( See Howard v. King, 307 AD2d 278; Risbrook v. Coronamos Cab Corp., 244 AD2d 397; Kim v. Cohen, 208 AD2d 807.) Consequently, plaintiff Regina Cooper has raised a triable issue of fact as to whether she sustained a serious injury sufficient to defeat this summary judgment motion.
Plaintiff, infant Janay Daniel, submits in opposition to the motion, the unsworn MRI reports of the lumbar and cervical spines ( see Exhibit 2) and the affirmed neurological report of Dr. Ira Casson dated September 2, 2005 ( see Exhibit 3). The Court notes that in light of the denial of the plaintiff's cross motion for leave to amend the Bill of Particulars to allege disc bulges at L3-L4 and L4-L5 (see discussion below) any medical opinion rendered with respect to the existence of disc bulges is irrelevant. With respect to Dr. Casson's examination of infant Janay Daniel, he notes some limitations of motion of the lumbar spine, however straight leg raising test yielded a negative result. Consequently, plaintiff infant Janay Daniel has failed to raise a triable issue of fact as to whether she sustained a serious injury sufficient to defeat this summary judgment motion.
The cross motion for leave to amend the Bill of Particulars with respect to plaintiff infant Janay Daniel to include disc bulges at L3-4 and L4-5 with anterior spinal stenosis is denied.
An important factor to be considered by the Court when addressing this motion is whether the motion was made "promptly after discovery or awareness of facts upon which such amendment is predicated." ( See Beuschel v. Malm, 114 AD2d 569.) Plaintiff's counsel affirms in his affirmation dated September 7, 2005 that he "recently came into possession of a lumbar MRI report dated November 9, 2002 regarding" infant Janay Daniel. ( See Affirmation in Support of Cross Motion, paragraph 2.) "This factor takes on even greater significance when an action is ready for trial." ( See Beuschel v. Malm, 114 AD2d 569, supra.) The within case is scheduled to be sent out for trial on February 14, 2006. In this regard, the Court is unable to determine whether the motion was made promptly.
The cross motion for an Order granting summary judgment to plaintiffs on the issues of liability and the existence of serious injury or, in the alternative, issuing a decision that plaintiffs have established a prima facie case of serious injury is denied as untimely. In the case at bar, the Note of Issue was filed on March 15, 2005. Summary judgment motions were to have been made no later than July 13, 2005, or one hundred twenty days after the filing of the Note of Issue, and any motion made subsequent to required "leave of court on good cause shown". ( See CPLR 3212[a].) The within cross motion was made when the cross motion papers were served upon opposing counsel, which was on September 7, 2005. ( See CPLR 2211.) Counsel on the cross motion does not seek leave of court for permission to file an untimely summary judgment cross motion. ( See, Miceli v. State Farm Auto. Ins. Co., 3 NY3d 725; Thompson, Jr. v. Leben Home for Adults, 2005 NY App Div LEXIS 3541, *1 [April 4, 2005]; Thompson v. New York City Bd. Of Educ., 10 AD3d 650.) Nor does counsel on the cross motion establish good cause for the untimely cross motion. Accordingly, the cross motion seeking summary judgment in favor of plaintiffs on the issues of liability and the existence of serious injury is denied. ( See, Brill v. City of New York, 2 NY3d 648, [2004].)