Opinion
551/02.
Decided March 18, 2004.
Plaintiff commenced this action to recover damages for personal injuries allegedly sustained as a result of a motor vehicle accident which occurred on December 10, 2000.
Plaintiff Doris Curujo alleges to have sustained the following juries as a result of the accident: Cervical spine injury; Osteophytic disc ridge C3-4; Osteophytic disc ridge C6-7; Cord flattening C4-5; Pain to neck; Left shoulder pain; Left arm and left elbow pain.
Defendant Pui Sze Cheung moves for an order pursuant to CPLR Section 3212 dismissing plaintiff's complaint and granting summary judgment in favor of the defendant and against the plaintiff on the grounds that plaintiff has not sustained a "serious injury" within the meaning of New York Insurance Law Section 5102 (d). Co-defendant Ramesh Doshi cross moves for summary judgment against the plaintiff on the same grounds as set forth above and adopts and incorporates defendant Cheung's arguments as set forth in the motion papers.
Plaintiff opposes the motion on the grounds that the plaintiff has sustained a serious injury and that triable issue of fact exist which preclude summary judgment from being granted. Gaddy v. Eyler, 79 N.Y. 2d 955, 956-957 (1992).
Article 51 of the New York Insurance Law or the "Comprehensive Motor Vehicle Insurance Reparation Act," more commonly known as the "No-Fault Law," is a derogation of the common law right to sue for injuries resulting from motor vehicle accidents. Katkman v. Derouin, 109 A.D.2d 1086 (4th Dept. 1985). Its purpose is to make an injured party whole and to insure that an injured party is compensated for substantially all his economic losses.
A cause of action for non-economic loss may be maintained where plaintiff has sustained a "serious injury" as defined under New York Insurance Law Section 5102 (d) (1). New York Insurance Law Section 5102 (d) defines "serious injury" as follows:
"A personal injury which results in death; dismemberment; significant dismemberment; a fracture; loss of a fetus; permanent loss of a use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent 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 and eighty days immediately following the occurrence of the injury or impairment."
The issue of whether a plaintiff has made a prima facie showing that he or she sustained a "serious injury" within the meaning of Insurance Law Section 5102 (d) is one for the Court in the first instance. Licari V. Elliott, 57 N.Y. 2d 230 (1982).
In order to obtain summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. (CPLR 3212). Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Winegrad v. New York Univ. Medical Center, 64 N.Y.2d 851 (1985); Wright v. Melendez, 140 A.D. 2d 337 (2nd Dept. 1998). The moving party has the burden of coming forward with sufficient evidence in admissible form to warrant a finding that plaintiff has not suffered a "serious injury" as a matter of law. Pagano v. Kingsbury, 182 A.D. 2d 268 (2nd Dept. 1992); McKnight v. LaValle, 147 A.D.2d 902 (4th Dept. 1989).
Once the moving party has made a prima facie showing that it is entitled to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form that is sufficient to establish the existence of material issues of facts which require a trial on the action. Graham Han Real Estate Brokers, Inc., v. Oppenheimer, 148 A.D.2d 493 (2nd 1989); Attanasio v. Lashley, 636 N.Y.S. 2d 834 (2nd Dept. 1996); Armstrong v. Wolfe, 133 A.D.2d 957 (3rd Dept. 1987). If the plaintiff fails to meet this burden, summary judgment will be granted. Zoldas v. Louis Cab Corp., 108 A.D.2d 378 (1st Dept. 1985). Where a material issue of fact exists, the issue must be left to the jury to determine the credibility of the witnesses as a question of fact. Simon v. Wohl, 93 A.D.2d 818 (2nd Dept. 1983).
In the matter before the court in support of the motion for summary judgment, defendants argue that the plaintiff has not sustained a serious injury within the meaning of Section 5102 of the Insurance Law. Defendants also argue that an independent orthopedic examination of the plaintiff, conducted on March 8, 2002, by Dr. Joseph Paul, revealed a normal lordosis to the plaintiff's spine. Defendants submitted the affidavit of Dr. Joseph Paul in which he stated that an orthopedic examination of the plaintiff revealed a normal lordosis to the plaintiff's spine, no evidence of deltoid atrophy, no disability and no permanency as a result of the accident that occurred on December 10, 2000. Dr. Paul stated in his affidavit the tests used and records reviewed in preparing his report and concluded that plaintiff sustained sprains to the cervical spine and to the left shoulder as a result of the accident, which is now resolve, and which do not give rise to the level of a serious injury.
The burden then shifted to the plaintiff to demonstrate the existence of a triable issue of fact as to whether plaintiff sustained a "serious injury." Simonetti v. Tindell Waterproofing Restoration, Inc., 261 A.D.2d 531 (2nd Dept., 1999). It is therefore plaintiff's burden to present in admissible form, evidence that raises a triable issue of fact. Licari v. Elliott, supra.
In opposition to defendants' motion for summary judgment, the plaintiff submitted the medical report of Dr. Richard Hurwitz, a chiropractor, who examined the plaintiff on January 8, 2004. Dr. Hurwitz stated in his affidavit that based on his examination of the plaintiff, her medical history and her present complaint, plaintiff suffered "irritation to the spinal joints and the supporting mechanical structures of the spine." He further stated that his examination revealed displayed vertebrae and facet joints, ligament involvement, and a reduced function of the area involved. Dr. Hurwitz opined that plaintiff's injuries were caused by the accident in 2000 and have resulted in partial disability.
Dr. Hurwitz also quantified the decreased range of motion in the cervical spine and concluded that as a result of the motor vehicle accident in December 2000, plaintiff suffered from cervical radiculities and myalgia. Dr. Hurwitz stated that the objective tests administered found positive results.
The issue raised before the court is whether the report from a chiropractor who saw the plaintiff for the first time, three years after the accident, and where no other reports from treating doctors have been provided, is sufficient to defeat a motion for summary judgment.
After a review of the moving papers, supporting documents and opposition thereto, this court finds that plaintiff's information is insufficient to demonstrate that she sustained a serious injury within the meaning of Insurance law section 5102 (d). The only admissible document submitted by plaintiff is the sworn report of Dr. Hurwitz. However, this report is insufficient to defeat a motion for summary judgment or to establish that plaintiff sustained a "significant limitation of use of a body function or system" or a permanent consequential limitation of use of a body organ or member." Dr. Hurwitz's finding regarding the plaintiff's restrictions of motion in her cervical and lumbar spine was based upon his examination of the plaintiff, conducted on January 8, 2004, more than three years after the accident and does not provide any information concerning the nature of plaintiff's treatment. Vaughan v. Baez, 305 AD2d 101 (1st Dept. 2003); Marshall v. Albano, 182 A.D.2d 614 (2nd Dept. 1992).
Plaintiff contends that she sought medical attention the following day after the accident from a Dr. Kavitz, her personal physician, and a Dr. Milea to whom she was referred by Dr. Kavitz. However, plaintiff failed to provide the court with any reports from either of these two doctors.
Additionally, Dr. Hurwitz seeks to rely in his report upon the information of Dr. Kavitz and Dr. Milea. The court cannot consider this information and finds it to be unpersuasive since there has been no demonstration of the reliability of the information upon which Dr. Hurwitz relies. Plaintiff cannot circumvent the rules by using this report which the court credits major portions as no better than hearsay. Plaintiff cites to Conde v. Eric Service Corp., 158 A.D.2d 651(2nd Dept. 1990), and states that Dr. Hurwitz's findings were based on objective tests performed and that plaintiff's injury was a proximate result of the motor vehicle accident.
The Conde case is distinguishable at best. The doctors in that case were treating doctors. In the case at bar, Dr. Hurwitz saw the plaintiff for the first time three years after the accident, and he has failed to provide reports or affidavits from treating doctors that he claimed to be part of his files. Dr. Hurwitz's statement that the accident and the injury are casually related is speculative at best and is insufficient to defeat a motion for summary judgment. See, Marshall v. Albano, supra; Waldman v. Dong Kook Chang, 175 A.D.2d 204 (2nd Dept. 1992).
Furthermore, plaintiff stated in her affidavit that she has difficulty performing some of her daily activities including gym activities, and household chores, and she continues to experience persistent pain in the neck, left shoulder and left arm. However, plaintiff failed to provide any objective evidence or report to demonstrate her alleged injuries. Absent some objective proof of disability supporting an allegation to perform "substantially all" of their usual and customary daily activities, there is no showing of a serious injury from mere allegations. Phillips v. Costa, 554 N.Y.S.2d 288 (1990); Below v. Randall 240 A.D.2d 939 (3rd Dept. 1997).
This court finds that plaintiff's information is insufficient to demonstrate that she sustained a medically determined injury or impairment which prevented her from performing substantially all of the material acts constituting her normal daily activities for a period of not less than 90 days during the 180-day period following the accident. See, Ingram v. Doe, 296 A.D.2d 530, 531 (2nd Dept. 2002); Harney v. Tombstone Pizza Corp., 279 A.D.2d 609 (2nd Dept. 2001); Greene v. Miranda, 272 A.D.2d 441 (2nd Dept. 2000); Rum v. Pam Transp., 250 A.D.2d 751 (2nd Dept. 1998).
In light of plaintiff's admission that she returned to her full time job as a registered nurse one month following the accident, the conclusory and self-serving allegations in her affidavit that she was forced to curtail recreational and household activities were insufficient to demonstrate that she sustained a serious injury under the 90/180 days category. See, Onder v. Kaminski, 303 A.D.2d 665 (2nd Dept. 2003); Callas v. Malone, 135 A.D.2d 1016 (3rd Dept. 1987); McKnight v. LaValle, 147 A.D.2d 902 (4th Dept. 1989).
Accordingly, defendant Pui Sze Cheng's motion for summary judgment is granted and defendant Ramesh Doshi's cross-motion for summary judgment is also granted.
This constitutes the decision and order of this court.