Opinion
22802/08.
July 7, 2010.
Upon the foregoing papers it is ordered that defendants' motion for summary judgment dismissing the complaint of plaintiff, Cesar E. Rodriguez, Jr., 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 February 12, 2008. 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 three independent examining and/or evaluating physicians (a neurologist, 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. 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 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 neurologist, Michael J. Carciente, M.D., indicates that an examination conducted on August 11, 2009 revealed a diagnosis of: a normal neurological examination. He opines that regarding the spine condition, he finds no objective neurological signs in his evaluation supporting the presence of a radicular process. Dr. Carciente concludes that he finds no evidence of a neurological injury, disability or permanency.
The affirmed report of defendants' independent examining orthopedist, Alan M. Crystal, M.D., indicates that an examination conducted on September 2, 2009 revealed a diagnosis of: no objective findings of any left knee injury and subjective complaints of back pain which is a common complaint that occurs in the absence of trauma. He opines that the claimant has no objective findings of a herniated disc at L5-S1 causing nerve root impingement. Dr. Crystal concludes that it is his firm opinion that there is no basis to causally relate the alleged injuries of record to the accident of February 12, 2008.
The affirmed report of defendants' independent examining radiologist, Audrey Eisenstadt, M.D., indicates that an MRI of the lumbar spine taken on March 11, 2008 revealed evidence of degenerative disease.
The affirmed report of defendants' independent examining radiologist, Audrey Eisenstadt, M.D., indicates that an MRI of the left knee taken on March 11, 2008 revealed an impression of "Joint effusion. Mucoid degeneration, posterior horn of the medial meniscus." Dr. Eisenstadt concludes that there is a degenerative signal change seen in the posterior horn of the medial meniscus, which is a degenerative process without traumatic basis; and there is no evidence of osseous injury attributable to the accident.
Defendants have failed to establish a prima facie case with respect to the 90/180 category. 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 examined plaintiff more than 1 year after the date of plaintiff's alleged injury and accident on February 12, 2008. 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 and further, the IMEs took place well beyond the expiration of the 180-day period (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, defendants are not entitled to summary judgment with respect to the ninth category of serious injury.
B. Plaintiff fails to raise a triable issue of fact
In opposition to the motion, plaintiff submitted: an attorney's affirmation, plaintiff's own affidavit, a narrative report of plaintiff's physician, David Adin, D.O., and two affirmations and sworn narrative reports of plaintiff's radiologist, Thomas M. Kolb, M.D.
Plaintiff submitted no proof of objective findings contemporaneous with the accident showing a causal connection between the accident and the injuries. 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, 772 NYS2d 21 [1st Dept 2004]). In the instant case, no causal connection has been established.
Additionally, although defendants' independent examining physicians found degenerative changes, 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 affidavit is "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 for all categories except for the category of "90/180 days." (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."
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.