Opinion
23401/06.
Decided July 25, 2008.
Lawrence B. Saftler, Esq., Attorney for Plaintiff.
Michael I. Josephs, Esq., Attorney for Defendants.
The motion by defendants for an order dismissing plaintiff's complaint on the ground that she has not sustained a serious injury as defined under Insurance Law § 5102(d), is granted. The cross-motion by plaintiff for an order granting partial summary judgment as to liability against the defendants is deemed moot.
The cause of action is for personal injuries sustained by the plaintiff in a motor vehicle accident that occurred on December 8, 2003 in front of 980 Madison Avenue in New York County when the taxi in which she was a passenger struck another vehicle. Plaintiff's face came into contact with the divider between the rear seat and front seat inside the vehicle.
Under the "no-fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained. See , Licari v. Elliott , 57 NY2d 230 (1982). "It is incumbent upon the court to decide in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute." Id . at 237. New York Insurance Law § 5102(d), defines "serious injury" as, ". . .a personal injury which results in 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 non-permanent nature which prevents the injured party 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."
On a motion for summary judgment, a defendant has the burden of proving that the plaintiff's injuries were not serious. In order for a defendant to establish that the plaintiff failed to sustain a serious injury within the meaning of the statute, the defendant must submit, ". . .affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim." Grossman v. Wright , 268 AD2d 79 (2nd Dept. 2000). Once the defendant has sufficiently raised the issue of whether a serious injury has been sustained, 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 Insurance Law." Id . at 84; Gaddy v. Eyler , 167 AD2d 67 (3rd Dept. 1991). Once the burden shifts, it is incumbent upon plaintiff to produce prima facie evidence in "admissible form" to support the claim of serious injury. Unsworn reports of plaintiff's examining doctor will not be sufficient to defeat a motion for summary judgment. Grasso v. Angerami , 79 NY2d 813 (1991).
Defendants argue that plaintiff did not sustain a serious injury. The injuries alleged to have been sustained by the plaintiff as listed in her bill of particulars, include, a two centimeter laceration below her nose which has left a permanent scar, cervical strain, upper thoracic strain, headaches, "ADHD-like symptoms; generalized anxiety disorder; depression." (Defendant's Exhibit C). In support of their motion, defendants annex a copy of plaintiff's deposition testimony. In addition, defendants submit the affirmed report of Robert D. Goldstein, M.D., a plastic and reconstructive surgeon who examined the plaintiff on December 3, 2007. Dr. Goldstein reports as follows: ". . .there is a 1.5 cm transversely oriented scar in the upper lip. This
scar is of good cosmetic quality and does not show any evidence of hypertrophy or keloid formation." (Defendants's Exhibit E).
In addition, defendants submit the affirmed report of Solomon Miskin, M.D., a neurologist and psychiatrist who examined the plaintiff on December 3, 2007. Dr. Miskin reports that plaintiff's complaints at the time of the examination had to do with her attention, focus and concentration. (Defendant's Exhibit F). Dr. Miskin conducted a mental status examination of the plaintiff and his diagnosis was: "No psychiatric diagnosis. . .Status post postpartum depression predating the incident date of 12/9/03 — resolved." Plaintiff reported to Dr. Miskin that she had symptoms of postpartum anxiety and depression following the birth of her second child which prompted her to seek outpatient psychiatric treatment. In addition, Dr. Miskin's opinion regarding the verified bill of particulars was as follows: "The claimant presents with no evidence of ADHD-like symptoms, generalized anxiety disorder, or depression." (Defendant's Exhibit F).
Defendants further refer to plaintiff's deposition testimony wherein she stated that after the accident, she went back to her home state of Washington and followed up with her family doctor. He prescribed physical therapy for her shoulder. However, plaintiff was unable to describe what type of therapy she received, how often she went or for how long a period of time she went. She testified that she saw another doctor, John Holttum, M.D., in relation to her brain and testified that she saw him less than three (3) times. Plaintiff also had one or two brain scans and was told that there was an area with "trauma." She was given a choice of taking medications or "handling it naturally" which is the course plaintiff chose. In addition, she saw a chiropractor who would adjust the plaintiff at least once a week but no brace, collar, cane, walker or wheelchair was given to the plaintiff. (Defendant's Exhibit D).
As for the scar above her lip, plaintiff testified that she covers it with makeup and no medical care provider recommended corrective surgery for it. Plaintiff testified that since the accident she is not as focused around her home. She is able to make plans but it takes her more time to do so. Plaintiff also testified that when she was in high school, she sustained a head injury wherein her head hit a pole. In addition, defendants assert that there are no activities that plaintiff used to perform before the accident that she can no longer perform after the accident. Accordingly, defendants argue that plaintiff did not sustain a serious injury.
This court finds that the evidence submitted by the defendants satisfied their initial burden of demonstrating that plaintiff did not sustain a serious injury.
Plaintiff submits a cross-motion wherein she moves for partial summary judgment on the issue of liability and opposes defendants' motion for summary judgment. In support of her assertion that she sustained a serious injury, plaintiff refers to her deposition testimony wherein she stated that since the accident her "executive functions, sort of calendar planning, sequential planning, desk work that I do at home, decisions, focus is hard. I am not focused. It is hard for me to use those executive functions." (Plaintiff's Exhibit C). Plaintiff further argues that she suffered a mild traumatic brain injury enough to cause permanent cognitive problems. With respect to the scar, plaintiff testified that she consulted a plastic surgeon in Washington who advised her to let more time pass before considering surgery. Plaintiff further testified that she does not like having the scar on her face and she would "rather not" have it. (Plaintiff' Exhibit C).
Plaintiff further submits numerous unsworn reports of doctors as well as the medical records from plaintiff's treatment at Lenox Hill Hospital following the accident. In addition, plaintiff submits the affirmed report of Morton Finkel, M.D., a neurologist, who examined the plaintiff on December 5, 2007. Dr. Finkel asserts that he performed a "full and complete" examination of the plaintiff. He contends that plaintiff was asymptomatic prior to the subject motor vehicle accident "as reported." (Plaintiff's Exhibit D). Dr. Finkel reviewed plaintiff's medical records, physical therapy notes, the report and brain spect report of Dr. John Holttum and Dr. Daniel Amen and other unsworn reports of doctors. Dr. Finkel concludes, based upon his examination, the medical records and the history of complaints, that plaintiff suffered a traumatic brain injury from the subject motor vehicle accident. He further concludes that said brain injury has caused the plaintiff cognitive difficulty with words, language and organizational skills and that same are permanent symptoms of her cerebral concussion. (Plaintiff's Exhibit D). Moreover, Dr. Finkel notes plaintiff's facial scar and asserts that it is permanent. Plaintiff submits two (2) photographs depicting her facial scar.
Plaintiff also submits the affirmed report of Daniel Amen, M.D., a psychiatrist who supervised the brain scan of the plaintiff that was performed on May 8, 2006. Dr. Amen asserts that the brain scan indicated as follows: "..mild decreased activity in the temporal lobes seen at rest, decreased activity in the inferior orbital prefrontal cortices, more severe at rest. The combination of frontal pole flattening and decreased activity in the temporal, parietal and occipital regions were indicated of past brain injury. . .Based on the results of Mrs. McQuaid's brain scan and the psychiatric test and examination conducted by Dr. Holttum, plaintiff was diagnosed with late effects of intra-cranial injury and generalized anxiety." (Plaintiff's Exhibit E).
Accordingly, plaintiff argues that there are triable issues of fact as to her serious injuries and permanent limitations in addition to her facial scar.
This court finds that plaintiff has failed to raise an issue of fact as to whether or not she sustained a serious injury pursuant to Insurance Law § 5102(d).
First, the numerous unsworn reports of doctors that plaintiff saw when she returned to Washington and the medical records from Lenox Hill Hospital are not in admissible form and cannot be used to defeat a motion for summary judgment. Grasso v. Angerami ( supra); Charlton v. Almaraz, 278 AD2d 145 ( 1st Dept. 2000); Iusmen v. Konopka , 38 AD3d 608 ( 2nd Dept. 2007).
The sworn medical report and affirmation of Dr. Finkel is insufficient to defeat the motion for summary judgment. Dr. Finkel makes conclusions about plaintiff having permanent damage to parts of her brain as a result of the subject motor vehicle accident and about her having difficulty with words, language and organizational skills. In his report, Dr. Finkel refers to an examination he conducted to reach his conclusion. However, he does not indicate what abnormal findings he made in his examination, only one of which involved her memory and the result of which was completely normal. Moreover, he does not state what objective tests he used to determine that plaintiff was having difficulty with words, language and organizational skills. Therefore, his findings are conclusory and based on plaintiff's subjective complaints which are insufficient to establish a prima facie case of serious injury. Sulimanoff v. Ash Trans Corp. , 259 AD2d (1st Dept. 1999); Grossman v. Wright , (supra); Lincoln v. Johnson , 225 AD2d 593 (2nd Dept. 1996).
The sworn report of Dr. Amen is also insufficient for plaintiff to defeat the motion for summary judgment. Dr. Amen reports the results of plaintiff's brain scan and though he concluded that there was "clearly past brain trauma," he did not attribute this brain trauma to the subject motor vehicle accident. This is particularly significant because Dr. Finkel, in his report, states that he was informed by the plaintiff that when she was in high school, she struck her head and was briefly rendered unconscious. At her deposition, she indicated that she struck her head on a pole and did not remember if she suffered a concussion as a result. (Defendant's Exhibit D, p. 60, line 25, p. 61, lines 2-14).
Moreover, Dr. Amen's diagnosis was based upon the brain scan as well as the psychiatric test and examination conducted by Dr. Holttum which were not sworn. It is not permissible for plaintiff's physician to rely upon the unsworn reports of other doctors. Mahoney v. Zerillo , 6 AD3d 403 ( 2nd Dept. 2004); Ramirez v. Parache, 31 AD3d ( 2nd Dept. 2006). Even if the report of Dr. Holttum was sworn, as defendants point out in reply, Dr. Holttum refers to plaintiff's previous post-partum depression diagnosis for which she took medication and saw a therapist and he refers to possible toxic exposure by the plaintiff. In his report, Dr. Holttum indicated that plaintiff informed him that prior testing revealed higher than normal levels of mercury in her blood for which she received chelation treatment. In their reply papers, defendants submit an affirmation from Dr. James Spencer who asserts that chelation involves the administering of chemicals into a person's blood in an attempt to clean the blood of mercury. Dr. Spencer asserts that chelation is "rarely performed" and "reserved for serious cases of poisoning." (Defendants' Reply, Exhibit F). He further states that a high level of mercury poisoning can be lethal, "It can cause brain damage if it has continued building up over the course of time." (Defendants' Reply, Exhibit F).
In short, Dr. Amen's failure to causally link his findings in the brain scan of the plaintiff to the subject motor vehicle accident and not to some other occurrence in plaintiff's past such as the head injury she suffered in high school, renders his report insufficient to defeat defendants' motion for summary judgment. Taranto v. McCaffrey , 40 AD3d 626 , 627 (2nd Dept. 2007); Sellitto v. Casey , 268 AD2d 753 (3rd Dept. 2000).
With respect to the scar on plaintiff's face, it is well established that the question to be asked in determining whether a scar constitutes significant disfigurement is whether a reasonable person viewing the injury would regard the condition as unattractive, objectionable or as the subject of pity or scorn. Marchiano v. Mason , 179 AD2d 739 (2nd Dept. 1992). Plaintiff does not indicate when the color photographs annexed to her affidavit which show the scar above her lip, were taken. Plaintiff's physician, Dr. Finkel, described the scar as being 2 cm in length whereas the independent physician retained by defendants, Dr. Goldstein, described the scar as being 1.5 cm in length and of good cosmetic quality.
This court finds that a view of the photographs submitted by the plaintiff do not depict a scar that would constitute a significant disfigurement and thus, a serious injury under the statute Hutchinson v. Beth Cab Corp. , 204 AD2d 151 (1st Dept. 1994); Lewis v. General Electric Company, et al. , 145 AD2d 728 (3rd Dept. 1988); Loiseau v. Maxwell , 256 AD2d 450 (2nd Dept. 1998); Edwards v. Haven , 155 AD2d 757 (3rd Dept. 1989). The scar is barely visible in the photographs that were submitted by the plaintiff. Moreover, it is significant that in one of the unsworn reports submitted by plaintiff, there was one from Dr. Michael A. Leff, a plastic surgeon in Washington that plaintiff consulted. Dr. Leff reported on January 27, 2004 that the scar was "healing nicely." On July 7, 2005, the plaintiff consulted him again about a lesion on her abdomen and she also asked him to look at her eyes, lip and nose. Dr. Leff stated that plaintiff felt the scar above her lip looked the same and he further stated, ". . .I have suggested that she do nothing since the appearance doesn't bother her." (Plaintiff's Exhibit E).
Accordingly, defendants' motion for summary judgment dismissing plaintiff's complaint is granted. Plaintiff's cross-motion for summary judgment on the issue of liability is hereby deemed moot as plaintiff's complaint is dismissed.
This constitutes the decision and order of the court.