Opinion
14749/04.
Decided November 15, 2006.
Upon the foregoing papers, it is ordered that defendants' motion to dismiss the plaintiff's complaint, pursuant to Articles 51 and 32 of the Insurance Law and Civil Practice Law and Rules, respectively, is determined as hereinafter set forth:
Plaintiff seeks to recover damages based upon injuries asserted to have been sustained on April 1, 2002, when the motor vehicle she was operating was in contact with the motor vehicle owned and operated by the respective defendants.
In plaintiff's bill of particulars verified November 19, 2004, Ms. Khan contends that the injuries sustained in the subject occurrence brought her within the ambit of the definition of the following three categories of serious injury as set forth in Insurance Law § 5102 (d): (1) permanent consequential limitation of use of a body organ or member; (2) significant limitation of use of a body function or system; and (3) 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 90 days during the 180 days immediately following the occurrence of the injury or impairment.
To prevail in this context, it is incumbent upon the movants to demonstrate that Ms. Khan did not sustain any condition falling within the ambit of the term "serious injury", as defined within Insurance Law § 5102(d). (see, Bonavoglia v. Singh, 32 AD3d 375; Gilley v. Brown, 2 AD3d 675; Healea v. Andriani, 158 AD2d 587)
"Proof of the extent of [a litigant's] injury is necessary because the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries (see, Licari v. Elliot, 57 NY2d 230, 234-235). A medical judgment on the seriousness of [a litigant's] injury when the jury may not be able to resolve the question without expert opinion evidence is consistent with that legislative intent." (Dufel v. Green, 84 NY2d 795, 798)
"It is fundamental law that [t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case' (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). Of greater significance here, if the proponent fails to make such a showing, the motion must be denied, regardless of the sufficiency of the opposing papers' (id., at 853)." (Tiano v. Lane, 260 AD2d 908 [3rd Dept.]; see also, Rentz v. Modell, 262 AD2d 545, 546)
Application of the governing legal principles to the documentary showing made by the defendants leads to the inescapable conclusion that the movants failed to demonstrate prima facie entitlement to the relief sought. Thus, dismissal of the plaintiff's complaint is unwarranted.
In support of the motion at bar the defendants submitted the reports and records of the health care practitioners with whom Ms. Khan treated and/or consulted for the injuries she is alleged to have sustained as a proximate result of the defendants' negligence.
While one may not rely on its own unsworn material to support or oppose an application for summary disposition, a party may rely on the unsworn material prepared by or on behalf of an adversary. (see, generally, Arbour v. Commercial Life Insurance Company, 240 AD2d 1001 [3rd Dept.]; Sabella v. McKain, 239 AD2d 333) Thus, the use of the unsworn material of the plaintiff's health care providers falls within a recognized exception to the general tender requirements associated with summary judgment practice.
The defendants also rely on the findings of Jerrold Gorski, M.D., a diplomate and fellow of the American Academy of Orthopaedic Surgeons, and Murthy Vishnubhakut, M.D., a neurologist.
While the opinions expressed by Drs. Gorski and Vishnubhakut serve to negate the severity of Ms. Khan's injuries, defendants' submission and reliance upon the reports and records prepared by the patient's health care providers dilute the attempt made to establish prima facie entitlement to the relief sought and attenuate the effort undertaken to eliminate all material factual issues from the litigation. (see, Langford v. Jewett Transportation Service, 271 AD2d 412; Belmonte v. Collins, 261 AD2d 496; Faruque v. Ponce, 259 AD2d 464; Rosmarin v. Lamontanaro, 238 AD2d 567) The seeds from which the contradictory showing blossomed were sown by the movants.
Notably, the physicians retained by the defendants failed, in large measure, to identify the objective testing performed to support their respective conclusions. (see, Agathe v. Wang, ___ AD3d ___, ___ NYS2d ___, 2006 NY App. Div. LEXIS 12482; Walters v. Papanastassiou, 31 AD3d 439)
The affirmed medical report of each of the defendants' examining physicians indicated that magnetic resonance imaging of the plaintiff's cervical spine showed herniations at C2-3 through C3-4 and a larger herniation, with cord impingement, at C4-5. The defendants' experts failed to demonstrate that these conditions were not causally related to the underlying motor vehicle accident, or fall below the statutory verbal threshold set forth in Insurance Law § 5102 (d). (see, Taylor v. Ellis, 5 AD3d 471; Zavala v. DeSantis, 1AD3d 354)
Moreover, only one of the two examining physicians assigned numerical values to his range of motion findings (see, Browdame v. Candura, 25 AD3d 747), and neither contrasted their respective findings to the established norms. (see, Hernandez v. Stanley, ___ AD3d ___, ___ NYS2d ___, 2006 NY App. Div. LEXIS 13395; Lam v. Spring Scaffolding, Inc., ___ AD3d ___, ___ NYS2d ___, 2006 NY App. Div. LEXIS 13014; Welch v. Penske Truck Leasing Corp., 29 AD3d 783)
Significantly, "a defendant who submits admissible proof that a plaintiff has a full range of motion and that he or she suffers from no disabilities has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), despite the existence of an MRI report which shows herniated or bulging discs (citations omitted)." (Meely v. 4 G's Truck Renting Co., Inc., 16 AD3d 26, 30 [emphasis supplied])
The insufficiencies with which the movants' medical reports are suffused serve to deprive the opinions contained therein of probative force and evidentiary value and undermine the defendants' effort to establish prima facie entitlement to the relief sought. (see, Hernandez v. Stanley, supra; Lam v. Spring Scaffolding, Inc., supra; Agathe v. Wang, supra; Walters v. Papanastassiou, supra; Browdame v. Candura, supra)
Consequently, there is no need to review the plaintiff's opposing submission. (see, Mullen v. Lauffer, 31 AD3d 402; Picott v. Lewis, 26 AD3d 319; Sayers v. Hot, 23 AD3d 453)
Based on the foregoing, the instant application is denied.