Opinion
Decided April 29, 2004.
The defendant's motion for summary judgment on the grounds that the plaintiff did not incur a "serious injury" as defined by Insurance Law § 5102 is granted for the reasons stated herein.
This automobile accident occurred on December 2, 2000 when plaintiff's vehicle was hit in the rear by defendant's vehicle on Nassau Road at the intersection with Uniondale Avenue in Uniondale. The plaintiff's most serious claimed injury is a disc herniation at L2-L3. The unsworn MRI report signed by Steven Brownstein, M.D., a radiologist, conducted March 27, 2001, indicates that "There is evidence of anterior disc herniation at the L2-L3 level identified without compromise of the thecal sac or nerve roots."
The reports of the "independent medical examinations" authorized by the defendants, including a neurologist, a radiologist and a chiropractor, all predictably found no serious or permanent injury to the plaintiff as a result of this accident. It should be noted, additionally, that the plaintiff was in a second accident for which litigation is pending, about a year after this accident.
The plaintiff submitted inadmissible unsworn reports from a chiropractor and neurologist, who found restricted range of motion throughout plaintiff's back. In addition, plaintiff provided a sworn report from a consulting physician, Dr. Fritzner Bourdeau, dated some two and a half years after the plaintiff's last treatment. This gap in treatment is totally unexplained. The evaluation by Dr. Bourdeau on February 13, 2004 found loss of range of motion varying from 7% to 25% in the cervical spine and 23% to 50% in the lumbar spine.
The analysis of the meaning of serious injury has a long history beginning with Licari v. Elliott, 57 NY2d 230. Applying what could be gleaned from the legislative intent, the Court of Appeals, wrote that "the word `significant' as used in the statute pertaining to `limitation of use of a body function or system' should be construed to mean something more than a minor limitation of use. A minor, mild or slight limitation of use should be classified as insignificant within the meaning of the statute" ( Licari v. Elliott, supra, at 236). The Court reiterated this analysis in Dufel v. Green, 84 NY2d 795, in which it wrote that the legislative intent of the "no-fault" legislation was to weed out frivolous claims and limit recovery to major or significant injuries. In that regard, summary judgment should be granted in cases where the plaintiff's opposition is limited to "conclusory assertions tailored to meet statutory requirements" ( Lopez v. Senatore, 65 NY2d 1017, 1019; see also, Carroll v. Jennings, 264 AD2d 494).
In cases such as the present one, 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 conclude that no objective medical findings support the plaintiff's claim ( see, Turchuk v. Town of Wallkill, 255 AD2d 576). With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law ( see, Gaddy v. Eyler, 79 NY2d 955). The plaintiff in such a situation must present objective evidence of the injury. The mere parroting of language tailored to meet statutory requirements is insufficient ( see, Powell v. Hurdle, 214 AD2d 720; Giannakis v. Paschilidou, 212 AD2d 502). Further, the courts have consistently held that a plaintiff's subjective claim of pain and limitation of motion must be sustained by verified objective medical findings ( see, Toure v. Avis-Rent-A-Car, 98 NY2d 345; Kauderer v. Penta, 261 AD2d 365; Carroll v. Jennings, supra). Moreover, these verified objective medical findings must be based on a recent examination of the plaintiff ( see, Kauderer v. Penta, supra). In that vein, any significant lapse of time between the cessation of the plaintiff's medical treatments after the accident and the physical examination conducted by his own expert must be adequately explained ( see, Smith v. Askew, 264 AD2d 834; Behm v. Radoccia, 2004 NY Slip Op. 02697 [2nd Dept 2004]; Mendoza v. Whitmire, 2004 NY Slip Op. 03106 [2nd Dept 2004]).).
Therefore, in order to successfully oppose a motion for summary judgment on the issue of whether an injury is serious within the meaning of Insurance Law § 5102 (d), the plaintiff's expert must submit quantitative objective findings in addition to an opinion as to the significance of the injury. Although each case will stand or fall on its own facts, certain objective tests satisfy this standard.
Physical examinations personally conducted by the person making the affidavit or affirmation are sufficient ( see, Cesar v. Felix, 181 AD2d 852; see also, Ventura v. Moritz, 255 AD2d 506; Yahya v. Schwartz, 251 AD2d 498). However, an affidavit or affirmation simply setting forth the observations of the affiant are not sufficient unless supported by objective proof such as X-rays, MRIs, straight-leg or Laseque tests, and any other similarly-recognized tests or quantitative results based on a neurological examination ( see, Kraemer v. Henning, 237 AD2d 492; Zalduondo v. Lazowska, 234 AD2d 455; Kim v. Cohen, 208 AD2d 807; Georgia v. Ramautar, 180 AD2d 713; Spezia v. De Marco, 173 AD2d 462).
In the instant case, Dr. Bourdeau's report states that "The Laseque Straight Leg Raising Test was positive on the right. This is suggestive of a disc lesion, nerve root impingement, or other pathology in the Lumbar spine of this patient." Lumbar disc pathology was also indicated by the Toe Walking Test and Heel Walking Test. However, the total lack of treatment for over 2 (two) years and the fact of a subsequent accident are not explained or even addressed in his report. Plaintiff offered no proof as to any treatment during this period or as to the effect of the subsequent accident, if any.
Thus, the plaintiff has failed to raise sufficient triable issues of fact as to the medical findings to defeat this motion is granted and the complaint dismissed.
This constitutes the order and decision of this Court.
So Ordered: