Mobley v. J. Foster Phillips Funeral Home, Inc.

Full title: JOSEPH MOBLEY, ALEXANDER WATSON, MICHELLE WATSON, ALEXANDER WATSON, JR…

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS IAS PART 6

Date published: Feb 25, 2015

2015 N.Y. Slip Op. 30342 (N.Y. Sup. Ct. 2015)

Opinion

Index No. 27220/11

02-25-2015

JOSEPH MOBLEY, ALEXANDER WATSON, MICHELLE WATSON, ALEXANDER WATSON, JR. and OMARI WATSON by their mother and natural guardian, MICHELE WATSON, Plaintiffs, v. J. FOSTER PHILLIPS FUNERAL HOME, INC., JEROME LEARY, RICARDO RECORD and MELANIE GRENALD, Defendants.

HONORABLE HOWARD G. LANE Justice

Short Form Order

Present: HONORABLE HOWARD G. LANE Justice Motion Date August 11, 2014 Motion Cal. Nos. 95 Motion Seq. Nos. 6

	Papers Numbered
Notice of Motion - Affidavits - Exhibits	1 - 4
Cross Motions	5-11
Opposition	12-20
Reply	21-23

Upon the foregoing papers it is ordered that the motion by defendants, J. Foster Phillips Funeral Home, Inc. and Jerome Leary and cross motion by defendants Ricardo Record and Melanie Grenald for summary judgment dismissing the complaint of plaintiffs, Joseph Mobley, Alexander Watson, Alexander Watson, Jr., and Omari Watson, and Michele Watson pursuant to CPLR 3212, on the ground that plaintiffs have not sustained a serious injury within the meaning of the Insurance Law § 5102(d) are decided as follows:

At the outset, the Court notes that plaintiff opposes the instant motion in part on the grounds that the co-defendants' Answer was not included with the motion and as such, it is procedurally defective. The Court finds this argument to be unavailing in that the Court has discretion to overlook the defect if the record is "sufficiently complete" (Welch v. Hauck, 18 AD3d 1096 [3d Dept 2005]). As the co-defendant's Answer was previously filed with the Court in a prior motion, the Court shall overlook the defect.

This action arises out of an automobile accident that occurred on November 3, 2010. Defendants have submitted proof in admissible form in support of the motion and cross-motion for summary judgment, for all categories of serious injury for all five plaintiffs except for the ninth category of "90/180 days" for plaintiffs Alexander Watson and Michele Watson. Defendants submitted, inter alia, affirmed reports from independent examining and/or evaluating physicians (a neurologist, an orthopedist, and a radiologist) and plaintiffs' Joseph Mobley, Alexander Watson, Jr. and Omari Watson's own verified bill of particulars.

APPLICABLE LAW

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 (Licari v. Elliot, 57 NY2d 230 [1982]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York Univ. Medical Center, 64 NY2d 851[1985]). In the present action, the burden rests on defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury" (Lowe v. Bennett, 122 AD2d 728 [1st Dept 1986], aff'd, 69 NY2d 701, 512 NYS2d 364 [1986]). When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury (Licari v. Elliot, supra; Lopez v. Senatore, 65 NY2d 1017 [1985]).

In support of a claim that plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physician or the unsworn reports of plaintiff's examining physician (Pagano v. Kingsbury, 182 AD2d 268 [2d Dept 1992]). Once the burden shifts, it is incumbent upon plaintiff, in opposition to defendant's motion, to submit proof of serious injury in "admissible form". Unsworn reports of plaintiff's examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment (Grasso v. Angerami, 79 NY2d 813 [1991]). Thus, a medical affirmation or affidavit which is based on a physician's personal examination and observations of plaintiff, is an acceptable method to provide a doctor's opinion regarding the existence and extent of a plaintiff's serious injury (O'Sullivan v. Atrium Bus Co., 246 AD2d 418 [1st Dept 1998]). Unsworn MRI reports are not competent evidence unless both sides rely on those reports (Gonzalez v. Vasquez, 301 AD2d 438 [1st Dept 2003]; Ayzen v. Melendez, 749 NYS2d 445 [2d Dept 2002]). However, in order to be sufficient to establish a prima facie case of serious physical injury the affirmation or affidavit must contain medical findings, which are based on the physician's own examination, tests and observations and review of the record rather than manifesting only the plaintiff's subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the CPLR to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice (see, CPLR 2106; Pichardo v. Blum, 267 AD2d 441 [2d Dept 1999]; Feintuch v. Grella, 209 AD2d 377 [2d Dept 2003]).

In any event, the findings, which must be submitted in a competent statement under oath (or affirmation, when permitted) must demonstrate that plaintiff sustained at least one of the categories of "serious injury" as enumerated in Insurance Law § 5102(d) (Marquez v. New York City Transit Authority, 259 AD2d 261 [1st Dept 1999]; Tompkins v. Budnick, 236 AD2d 708 [3d Dept 1997]; Parker v. DeFontaine, 231 AD2d 412 [1st Dept 1996]; DiLeo v. Blumberg, 250 AD2d 364 [1st Dept 1998]). For example, in Parker, supra, it was held that a medical affidavit, which demonstrated that the plaintiff's threshold motion limitations were objectively measured and observed by the physician, was sufficient to establish that plaintiff has suffered a "serious injury" within the meaning of that term as set forth in Article 51 of the Insurance Law. In other words, "[a] physician's observation as to actual limitations qualifies as objective evidence since it is based on the physician's own examinations." Furthermore, in the absence of objective medical evidence in admissible form of serious injury, plaintiff's self-serving affidavit is insufficient to raise a triable issue of fact (Fisher v. Williams, 289 AD2d 288 [2d Dept 2001]).

DISCUSSION

A. Defendants established a prima facie case that plaintiffs did not suffer a "serious injury" as defined in Section 5102(d) , for all categories .

The affirmed report of defendants' independent examining neurologist, Michael Rubin, M.D., indicates that an examination of plaintiff Joseph Mobley conducted on July 8, 2013 revealed a diagnosis of: a completely normal medical evaluation. He opines that there is no limitation of neck movement. Dr. Rubin concludes that his MRI's do not show any findings that would appear to be post traumatic or causally related to the subject accident.

The affirmed report of defendants' independent evaluating radiologist, John T. Rigney, M.D., indicates that an MRI of the Cervical Spine of plaintiff Joseph Mobley dated November 30, 2010 indicates degeneration of the intervertebral discs and vertebral spondylosis.

The affirmed report of defendants' independent evaluating radiologist, John T. Rigney, M.D., indicates that an MRI of the Lumbar Spine of plaintiff Joseph Mobley dated November 30, 2010 indicates an impression of straightening of lumbar curvature and no evidence of a posterior bulge or herniation. He opines that there is no evidence of any injury to the lumbar spine as a result of this accident.

The affirmed report of defendants' independent evaluating radiologist, John T. Rigney, M.D., indicates that an MRI of the Left Shoulder of plaintiff Joseph Mobley dated December 22, 2010 indicates an impression of degenerative change of the glenoid labra without a tear.

The affirmed report of defendants' independent examining orthopedist, Robert S. Goldstein, M.D., indicates that an examination of plaintiff Alexander Watson conducted on November 21, 2013 revealed a diagnosis of: no objective findings noted on clinical examination relating to the subject accident. He opines that there is no need for further testing or orthopedic treatment. Dr. Goldstein concludes that plaintiff Alexander Watson has completely recovered from his neck and lower back injuries alleged as a result of the subject motor vehicle accident and that the prognosis is excellent.

The affirmed report of defendants' independent examining neurologist, Michael Rubin, M.D., indicates that an examination of plaintiff Alexander Watson conducted on November 20, 2013 revealed a diagnosis of: a completely normal neurological examination. He opines that his range of motion is full everywhere. Dr. Rubin concludes plaintiff is normal with no evidence of injury due to the subject accident.

The affirmed report of defendants' independent evaluating radiologist, John T. Rigney, M.D., indicates that an MRI of the Cervical Spine of plaintiff Alexander Watson dated December 12, 2012 indicates an impression of: vertebral spondylosis with degeneration of the intervertebral discs.

The affirmed report of defendants' independent evaluating radiologist, John T. Rigney, M.D., indicates that an MRI of the Lumbar Spine of plaintiff Alexander Watson dated December 12, 2012 indicates an impression of: no evidence of a posterior bulge or herniation at any level. Mild anurysmal dilation of the distal abdominal aorta.

The affirmed report of defendants' independent examining orthopedist, Robert S. Goldstein, M.D., indicates that an examination of plaintiff Alexander Watson, Jr. conducted on November 20, 2013 revealed a diagnosis of: no objective findings in the cervical spine, shoulders, or lumbar spine. He opines that there is no need for further diagnostic testing or orthopedic treatment. Dr. Goldstein concludes that the prognosis is excellent.

The affirmed report of defendants' independent examining neurologist, Michael Rubin, M.D., indicates that an examination of plaintiff Alexander Watson, Jr. conducted on November 20, 2013 revealed a diagnosis of: a completely normal neurological examination. He opines that his range of motion is full everywhere. Dr. Rubin concludes plaintiff is normal with no evidence of injury due to the subject accident.

The affirmed report of defendants' independent examining orthopedist, Robert S. Goldstein, M.D., indicates that an examination of plaintiff Omari Watson conducted on November 20, 2013 revealed a diagnosis of: no objective findings in the cervical spine or lumbar spine. He opines that plaintiff has completely recovered from the alleged injuries to his cervical and lumbosacral spine. He further opines that there is no need for further diagnostic testing or orthopedic treatment. Dr. Goldstein concludes that the prognosis is excellent.

The affirmed report of defendants' independent examining neurologist, Michael Rubin, M.D., indicates that an examination of plaintiff Omari Watson conducted on November 20, 2013 revealed a diagnosis of: a completely normal neurological examination. He opines that his range of motion is full everywhere. Dr. Rubin concludes plaintiff is normal with no evidence of injury due to the subject accident.

The affirmed report of defendants' independent examining orthopedist, Robert S. Goldstein, M.D., indicates that an examination of plaintiff Omari Watson conducted on November 20, 2013 revealed a diagnosis of: no objective findings in the cervical spine or lumbar spine. He opines that plaintiff has completely recovered from the alleged injuries to his cervical and lumbosacral spine. He further opines that there is no need for further diagnostic testing or orthopedic treatment. Dr. Goldstein concludes that the prognosis is excellent.

The affirmed report of defendants' independent examining orthopedist, Robert S. Goldstein, M.D., indicates that an examination of plaintiff Michele Watson conducted on November 21, 2013 revealed a diagnosis of: no objective findings. He opines that plaintiff has completely recovered from the injuries she sustained in the motor vehicle accident. He further opines that plaintiff has no residual from the accident. Dr. Goldstein concludes that the prognosis is excellent.

The affirmed report of defendants' independent evaluating radiologist, John T. Rigney, M.D., indicates that an MRI of the Cervical Spine of plaintiff Michele Watson dated April 15, 2011 indicates an impression of: vertebral spondylosis and degeneration of the intervertebral discs. He opines that the findings are of chronic nature and concludes that there is no evidence of any injury as a result of the accident.

Additionally, defendants established a prima facie case for the category of "90/180 days" for plaintiff Alexander Watson, Jr. whose verified bill of particulars indicates that he was only confined to home and bed for approximately 2 weeks due to the accident and only missed school for two weeks following the accident; for plaintiff Omari Watson whose verified bill of particulars indicates that he was only confined to home and bed for approximately 2 weeks due to the accident and only missed school for two weeks following the accident; and for plaintiff Joseph Mobley whose verified bill of particulars indicates that he was only confined to bed and home for two (2) months following the accident and whose doctor's report indicates that he was medically able to return to employment one month after the accident. Such evidence shows that the plaintiffs, Joseph Mobley, Alexander Watson, Jr., and Omari Watson were not curtailed from nearly all activities for the bare minimum of 90/180, required by the statute.

Defendants have failed to establish a prima facie case with respect to the "90/180" category for plaintiffs Alexander Watson and Michele Watson .

Defendants have failed to raise a triable issue of fact as to the 90/180-day claim for plaintiffs Alexander Watson and Michele Watson. When construing the statutory definition of a 90/180-day claim, the words "substantially all" should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment (see Gaddy v. Eyler, 79 NY2d 955, supra; Licari v. Elliot, 57 NY2d 23, supra; Berk v. Lopez, 278 AD2d 156 [2000], lv denied 96 NY2d 708 [2001]). Defendants' experts failed to render an opinion on the effect the injuries claimed may have had on the plaintiffs, Alexander Watson and Michele Watson for the 180 day period immediately following the accident. With respect to the 90/180-day serious injury category, defendants have failed to meet its initial burden of proof and, therefore, has not shifted the burden to plaintiffs to lay bare their evidence with respect to this claim. The reports of the IME's relied upon by defendants fail to discuss this particular category of serious injury, and further, the IME's took place well beyond the expiration of the 180-day period (Lowell v. Peters, 3 AD3d 778 [3d Dept 2004]). As defendants have failed to establish a prima facie case with respect to the ninth category, it is unnecessary to consider whether the plaintiffs' Alexander Watson and Michele Watson's papers in opposition to defendants' motion and cross-motion on this issue are sufficient to raise a triable issue of fact (Manns v. Vaz, 18 AD3d 827 [2d Dept 2005]). Accordingly, defendants are not entitled to summary judgment with respect to the ninth category of serious injury for plaintiffs Alexander Watson and Michele Watson.

The aforementioned evidence amply satisfied defendants' initial burden of demonstrating that plaintiffs, Joseph Mobley, Alexander Watson Jr., and Omari Watson did not sustain a "serious injury." Thus, the burden then shifted to said plaintiffs to raise 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 [1992]). Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint (see, Licari v. Elliott, supra).

B. Plaintiffs fail to raise a triable issue of fact

In opposition to the motion, plaintiffs submitted: an attorney's affirmation, an affirmation of plaintiff, Joseph Mobley's neurologist, Aric Hausknecht, M.D., affirmations of plaintiffs' Alexander Watson, Alexander Watson, Jr., Omari Watson, and Michele Watson's orthopedist, Barry Sloan, D.O., affirmations and sworn MRI reports of plaintiff, Joseph Mobley's radiologist, Saurin J. Shah, M.D., affirmations and sworn MRI reports of plaintiff, Michele Watson's radiologists, R. Darr McKeown, M.D. and Pramod Kaila, M.D., and plaintiffs' own affidavits. Joseph Mobley

Plaintiff, Joseph Mobley submitted no proof of objective findings contemporaneous with the accident establishing causality. The affirmed narrative report of plaintiff's evaluating physician, Aric Hausknecht, M.D., who evaluated plaintiff only one time, on July 9, 2013, more than 2½ years after the accident does not establish causality. Plaintiff failed to submit any medical proof that was contemporaneous with the accident showing any bulges, herniations, or range of motion limitations (Pajda v. Pedone, 303 AD2d 729 [2d Dept 2003]) that were caused by the accident. Plaintiff has failed to establish a causal connection between the accident and the injuries. The causal connection must ordinarily be established by competent medical proof (see, Kociocek v. Chen, 283 AD2d 554 [2d Dept 2001]; Pommels v. Perez, 4 NY3d 566 [2005]). The MRI reports are silent as to causality. Additionally, other than the initial examination of plaintiff more than 2½ years after the accident, the record is devoid of any competent evidence of plaintiff's treatment.

Furthermore, plaintiff's attorney's affirmation is not admissible probative evidence on medical issues, as plaintiff's attorney has failed to demonstrate personal knowledge of the plaintiff's injuries (Sloan v. Schoen, 251 AD2d 319 [2d Dept 1998]).

Moreover, plaintiff's self-serving affidavit and deposition statements are "entitled to little weight" and are insufficient to raise triable issues of fact (see, Zoldas v Louise Cab Corp., 108 AD2d 378, 383 [1^st Dept 1985]; Fisher v. Williams, 289 AD2d 288 [2d Dept 2001]).

Therefore, plaintiff's submissions are insufficient to raise a triable issue of fact (see, Zuckerman v. City of New York, 49 NY2d 557 [1980]). Alexander Watson , Alexander Watson, Jr., and Omari Watson

Plaintiffs, Alexander Watson, Alexander Watson, Jr. and Omari Watson submitted no proof of objective findings contemporaneous with the accident. The only admissible medical proof submitted by said plaintiffs is the affirmed narrative reports of plaintiffs' evaluating physician, Barry Sloan, D.O., who evaluated plaintiffs only one time, on November 21, 2013, three (3) years after the accident. Plaintiffs failed to submit any medical proof that was contemporaneous with the accident showing any bulges, herniations, or range of motion limitations (Pajda v. Pedone, 303 AD2d 729 [2d Dept 2003]). Plaintiffs have failed to establish a causal connection between the accident and the injuries. The causal connection must ordinarily be established by competent medical proof (see, Kociocek v. Chen, 283 AD2d 554 [2d Dept 2001]; Pommels v. Perez, 4 NY3d 566 [2005]). An examination three (3) years after the accident is insufficient to establish a causal connection between the accident and the injuries. Additionally, other than the initial evaluation examination of plaintiffs three (3) years after the accident, the record is devoid of any competent evidence of plaintiffs' treatment or need for treatment.

Furthermore, plaintiffs' attorney's affirmation is not admissible probative evidence on medical issues, as plaintiffs' attorney has failed to demonstrate personal knowledge of the plaintiff's injuries (Sloan v. Schoen, 251 AD2d 319 [2d Dept 1998]).

Moreover, plaintiffs' self-serving affidavits and deposition statements are "entitled to little weight" and are insufficient to raise triable issues of fact (see, Zoldas v. Louise Cab Corp., 108 AD2d 378, 383 [1^st Dept 1985]; Fisher v. Williams, 289 AD2d 288 [2d Dept 2001]).

Therefore, plaintiffs' submissions are insufficient to raise a triable issue of fact (see, Zuckerman v. City of New York, 49 NY2d 557 [1980]). Michele Watson

Plaintiff, Michele Watson submitted no proof of objective findings contemporaneous with the accident establishing causality. The affirmed narrative report of plaintiff's evaluating physician, Barry Sloan, D.O., who evaluated plaintiff only one time, on November 21, 2013, three (3) years after the accident does not establish causality. Plaintiff failed to submit any medical proof that was contemporaneous with the accident showing any bulges, herniations, or range of motion limitations (Pajda v. Pedone, 303 AD2d 729 [2d Dept 2003]) that were caused by the accident. Plaintiff has failed to establish a causal connection between the accident and the injuries. The causal connection must ordinarily be established by competent medical proof (see, Kociocek v. Chen, 283 AD2d 554 [2d Dept 2001]; Pommels v. Perez, 4 NY3d 566 [2005]). The MRI reports are silent as to causality. Additionally, other than the initial evaluation examination of plaintiffs three (3) years after the accident, the record is devoid of any competent evidence of plaintiff's treatment.

Furthermore, plaintiff's attorney's affirmation is not admissible probative evidence on medical issues, as plaintiff's attorney has failed to demonstrate personal knowledge of the plaintiff's injuries (Sloan v. Schoen, 251 AD2d 319 [2d Dept 1998]).

Moreover, plaintiff's self-serving affidavit and deposition statements are "entitled to little weight" and are insufficient to raise triable issues of fact (see, Zoldas v. Louise Cab Corp., 108 AD2d 378, 383 [1^st Dept 1985]; Fisher v. Williams, 289 AD2d 288 [2d Dept 2001]).

Therefore, plaintiff's submissions are insufficient to raise a triable issue of fact (see, Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Also, the plaintiffs, Joseph Mobley, Alexander Watson Jr., and Omari Watson have failed to come forward with sufficient evidence to create an issue of fact as to whether they sustained a medically-determined injury which prevented them from performing substantially all of the material acts which constituted their usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying accident (Savatarre v. Barnathan, 280 AD2d 537 [2d Dept 2001]). The record must contain objective or credible evidence to support the plaintiffs' claim that the injury prevented plaintiffs from performing substantially all of their customary activities (Watt v. Eastern Investigative Bureau, Inc., 273 AD2d 226 [2d Dept 2000]). When construing the statutory definition of a 90/180-day claim, the words "substantially all" should be construed to mean that the person has been prevented from performing her usual activities to a great extent, rather than some slight curtailment (see, Gaddy v. Eyler, 79 NY2d 955, Licari v. Elliott, 57 NY2d 230 [1982]; Berk v. Lopez, 278 AD2d 156 [1^st Dept 2000], lv denied 96 NY2d 708 [2001]). Plaintiffs fail to include experts' reports or affirmations which render an opinion on the effect the injuries claimed may have had on the plaintiffs for the 180-day period immediately following the accident. As such, the submissions of plaintiffs' Joseph Mobley, Alexander Watson Jr., and Omari Watson were insufficient to establish a triable issue of fact as to whether plaintiffs suffered from a medically determined injury that curtailed their from performing their usual activities for the statutory period (Licari v. Elliott, 57 NY2d 230, 236 [1982]). Accordingly, plaintiffs' claim that their injuries prevented them from performing substantially all of the material acts constituting their customary daily activities during at least 90 of the first 180 days following the accident is insufficient to raise a triable issue of fact (see, Graham v. Shuttle Bay, 281 AD2d 372 [1st Dept 2001]; Hernandez v. Cerda, 271 AD2d 569 [2d Dept 2000]; Ocasio v. Henry, 276 AD2d 611 [2d Dept 2000]).

Plaintiffs' cross motion for an order striking the defendants' answer for failing to exchange the report of their independent medical expert, Dr. Michael Katz, within thirty (30) days as set forth in the preliminary conference orders and compliance conference orders is hereby denied.

The record reflects that the note of issue was filed on December 12, 2013. Uniform Rules for Trial Courts 22 NYCRR 202.21(e) sets forth specific procedures for vacating a note of issue when there is a discovery dispute. Within twenty (20) days after service of a note of issue/certificate of readiness a party can move to vacate the note of issue upon a showing that the certificate of readiness is incorrect in some material way. This Court finds that the plaintiffs did not move to vacate the note of issue within twenty (20) days of its service although a discovery dispute existed. Thus, pursuant to the Appellate Division, Second Department, to make a discovery motion thereafter, "the defendant [is] required to demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness which required additional discovery to prevent substantial prejudice (see, 22 NYCRR 202.21[d])" (Audiovox Corp. v. Benyamini, 265 AD2d 135 [2d Dept 2000]).

Pursuant to NYCRR 202.21(d), as plaintiffs have made a discovery motion after the service of a note of issue/certificate of readiness, plaintiffs are required to demonstrate the unusual or unanticipated circumstances and substantial prejudice. The Court finds that plaintiffs failed to proffer any unusual or unanticipated circumstances which developed subsequent to the filing of the note of issue and certificate of readiness and as such the second prong of the standard ie. "substantial prejudice" need not be addressed (Utica Mutual Ins. Co. v. P.M.A. Corp., 2006 NY Slip Op 8971 [2d Dept 2006]); Gomez v. New York City Transit Authority, 19 AD3d 366 [2d Dept 2005]). Accordingly, the cross motion is denied.

This constitutes the decision and order of the Court.

A courtesy copy of this order is being mailed to all parties. Dated: February 25, 2015

/s/ _________

Howard G. Lane, J.S.C.