Opinion
14797/06.
July 9, 2010.
Upon the foregoing papers it is ordered that defendants' motion for summary judgment dismissing the complaint of plaintiff, Joseph Montalto, pursuant to CPLR 3212, on the ground that plaintiff has not sustained a serious injury within the meaning of the Insurance Law § 5102(d)is decided as follows:
This action arises out of an automobile accident that occurred on January 12, 2005. Defendants have submitted proof in admissible form in support of the motion for summary judgment, for all categories of serious injury except for the category of "90/180 days." The defendants submitted inter alia, affirmed reports from two independent examining and/or evaluating physicians (an orthopedist and a radiologist).
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). 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; Winegrad v. New York Univ. Medical Center, 64 NY2d 851). 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], affd, 69 NY2d 701, 512 NYS2d 364). 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).
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). 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. Blumberq, 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 plaintiff did not suffer a "serious injury" as defined in Section 5102(d), for all categories except for the category of 90/180 days.
The affirmed report of defendants' independent examining orthopedist, Isaac Cohen, M.D., indicates that an examination conducted on September 29, 2009 revealed a diagnosis of: status post motor vehicle accident and resolved cervical and lumbosacral strain. He opines that plaintiff "has a completely normal functioning capacity of the musculoskeletal system." He further opines that plaintiff is capable of performing his normal activities without limitations. Dr. Cohen concludes that there is no evidence of permanency.
The affirmed report of defendants' evaluating radiologist, A. Robert Tantleff, M.D., indicates that an MRI of the Lumbar Spine dated February 28, 2005 reveals pre-existing, degenerative changes. He opines that there is no evidence of acute or recent injury.
The affirmed report of defendants' evaluating radiologist, A. Robert Tantleff, M.D., indicates that an MRI of the Lumbar Spine taken on March 10, 2001 reveals focal advanced discogenic changes at L5-S1 with an associated disc herniation. He opines that there are findings suggestive of juvenile discogenic disease which is an accelerator of degenerative changes. Defendants have failed to establish a prima facie case with respect to the 90/180 category
Defendants have failed to raise a triable issue of fact as to the 90/180-day claim. 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. Elliott, 57 NY2d 230,supra; Berk v. Lopez, 278 AD2d 156, lv denied 96 NY2d 708). Defendants' experts failed to render an opinion on the effect the injuries claimed may have had on the plaintiff for the 180 day period immediately following the accident. The reports of the IMEs relied upon by defendants fail to discuss this particular category of serious injury (Lowell v. Peters, 3 AD3d 778 [3d Dept 2004]). With respect to the 90/180-day serious injury category, defendants have failed to meet their initial burden of proof and, therefore, have not shifted the burden to plaintiff to lay bare its evidence with respect to this claim. As defendants have failed to establish a prima facie case with respect to the ninth category, it is unnecessary to consider whether the plaintiff's papers in opposition to defendants' motion on this issue were sufficient to raise a triable issue of fact (Manns v. Vaz, 18 AD3d 827 [2d Dept 2005]). Accordingly, defendant is not entitled to summary judgment with respect to the ninth category of serious injury.
The aforementioned evidence amply satisfied defendants' initial burden of demonstrating that plaintiff did not sustain a "serious injury" for all categories except for the ninth category of "serious injury."
Thus, the burden then shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law for all categories except for the ninth category of serious injury (see, Gaddy v. Eyler, 79 NY2d 955).
B. Plaintiff fails to raise a triable issue of fact
In opposition to the motion, plaintiff submitted: an attorney's affirmation, an affirmation of plaintiff's physiatrist, Gautum Khakhar, M.D. sworn narrative reports of Gautum Khakhar, M.D., unsworn narrative reports, affirmations and a sworn narrative report of plaintiff's cervical spine by Robert Diamond, M.D., and plaintiff's own examination before trial transcript testimony.
Medical records and reports by examining and treating doctors that are not sworn to or affirmed under penalties of perjury are not evidentiary proof in admissible form, and are therefore not competent and inadmissible (see, Pagano v. Kingsbury, 182 AD2d 268 [2d Dept 1992];McLoyrd v. Pennypacker, 178 AD2d 227 [1st Dept 1991]). Therefore, unsworn reports of plaintiffs' examining doctors will not be sufficient to defeat a motion for summary judgment (see , Grasso v. Angerami, 79 NY2d 813).
Plaintiff's experts fail to distinguish the presently alleged injuries from the injuries caused by plaintiff's prior automobile accident. According to plaintiff's own examination before trial transcript testimony, plaintiff was in a prior automobile accident in 2001 which accident resulted in injuries to the same parts of the body. Plaintiff's expert, Dr. Khakhar does not indicate any awareness of the prior accident. As Dr. Khakhar has failed to differentiate between plaintiff's presently alleged injuries and the injuries prior to the subject accident, Dr. Khakhar's opinion is insufficient to support the plaintiff's claim of serious injury (see, Pommels v. Perez, 4 NY3d 566; Nikolopolous v. Brown, 270 AD2d 240 [2d Dept 2000]; Stowe v. Simmons, 253 AD2d 422 [2d Dept 1998]). Dr. Khakhar failed to review the medical reports from the prior accident, and as such, his opinion is insufficient to prove serious injury (see, Vidor v. Davila, 37 AD3d 826 [2d Dept 2007]).
Additionally, although defendants' independent examining radiologist opines in his affirmed report that his examination of plaintiff revealed pre-existing, degenerative changes in the lumbar spine, plaintiff's experts failed to indicate their awareness that plaintiff was suffering from such condition and failed to address the effect of these findings on plaintiff's claimed accident injuries (Francis v. Christopher, 302 AD2d 425 [2d Dept 2003]; Monette v. Keller, 281 AD2d 523 [2d Dept 2001]; Ifrach v. Neiman, 306 AD2d 380 [2d Dept 2003]). Hence, plaintiff failed to rebut defendants' claim sufficiently to raise a trial issue of fact (see,Pommels v. Perez, 4 NY3d 566).
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 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 [1st 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).
Accordingly, the defendants' motion for summary is granted as to all categories except for the category of "90/180 days" and the plaintiff's Complaint is dismissed as to all categories except for the category of "90/180 days."
The clerk is directed to enter judgment accordingly.
Movant shall serve a copy of this order with Notice of Entry upon the other parties of this action and on the clerk. If this order requires the clerk to perform a function, movant is directed to serve a copy upon the appropriate clerk.
The foregoing constitutes the decision and order of this Court.