Opinion
37116/02.
Decided February 27, 2006.
Plaintiff in the instant automobile accident was "rear-ended" by defendant Moore on June 27, 2002. Defendants move for summary judgment and dismissal of the instant action, pursuant to CPLR § 3212, on the grounds that plaintiff has not met the "threshold" for a "serious injury" as defined in New York Insurance Law § 5102 (d). The plaintiff's cross-motion for partial summary judgment on liability is moot, because the motion and cross-motion were before the Hon. Francois Rivera, and Justice Rivera, in his January 28, 2005 orders, granted plaintiff's cross-motion for partial summary judgment on liability. He then recused himself from deciding defendants' threshold motion and this matter was referred to me.
Plaintiff, in his bill of particulars [exhibit B of motion] claims that as a result of the accident he sustained: a herniated disc at C3-4; bulging discs at C4-C5, C5-C6, C6-C7; stenosis of the neural foramina from C2-T1; and rotatory scoliosis. As will be explained, due to plaintiff's unexplained and significant gaps in treatment, defendants' motion for summary judgment is granted and the case is dismissed.
Summary judgment standard
The proponent of summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649 (3rd Dept 1981); Greenburg v. Manlon Realty, 43 AD2d 968, 969 (2nd Dept 1974); Winegrad v. New York University Medical Center, 64 NY2d 851 (1985).
CPLR § 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v. Dino Artie's Automatic Transmission Co., 168 AD2d 610 (2nd Dept 1990). Summary judgment shall be granted only where there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v. Associated Fur Mfrs., 46 NY2d 1065 (1979).
Discussion
In the instant case, defendants' motion for summary judgment makes a prima facie showing of entitlement to judgment as a matter of law. Defendants' sworn medical reports tendered sufficient evidence to eliminate any material issues of fact from the case. The affirmation of Dr. Joseph Paul, an orthopedist [exhibit D of motion], contained objective medical findings that plaintiff has a normal range of motion in his spine. Dr. Paul concluded that "Mr. Sharif's examination was essentially normal, and despite his subjective complaints, there was no objective complaints to substantiate them," and "[i]n my professional opinion, Mr. Sharif has not sustained a permanent injury . . ." Further, Dr. E. Kojo Essuman, a neurologist, [exhibit E of motion — affirmation of Dr. Essuman] concluded "it is apparent that the injuries he [plaintiff] sustained are resolved and he may continue all full time activities of daily living and employment as current."
This evidence is sufficient for defendants to show that plaintiff has not sustained a "serious injury" pursuant to Insurance Law § 5102 (d). The Court of Appeals, in Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002), held, at 350:
we have required objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold ( see e.g. Dufel v. Green, 84 NY2d 795, 798 [1995]; Lopez v. Senatore, 65 NY2d 1017, 1020 [1985]); subjective complaints alone are not sufficient ( see e.g. Gaddy v. Eyler, 79 NY2d 955, 957-958 [1992]; Scheer v. Koubek, 70 NY2d 678, 679 [1987].)
The Court, further at 350, held that:
to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury ( see e.g. Dufel v. Green, 84 NY2d at 798; Lopez v. Senatore, 65 NY2d at 1020). An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system ( see Dufel, 84 NY2d at 798).
This shifts the burden to plaintiff to demonstrate the existence of triable issues of fact.
See Alvarez v. Prospect Hospital, supra; Winegrad v. New York University Medical Center, supra. Plaintiff's opposing papers rely upon the affirmation of Dr. Robert Limani, a radiologist, and the affidavits of two chiropractors, Dr. Sean Cotter and Dr. Christopher Green. The affirmation and affidavits are deficient in demonstrating the existence of triable issues of fact. Dr. Limani is not the physician who originally reviewed plaintiff's MRI films. He relies upon unsworn reports to connect plaintiff's alleged injuries to the accident, does not identify the films reviewed, the date the films were taken, the date he actually reviewed the films, whether the films were of the cervical or lumbar region of plaintiff's spine, or the nature of plaintiff's medical treatment following the accident. The use of an affidavit or affirmation containing unsworn medical reports and records prepared by others is inadmissible. Jackson v. Colvert, 24 AD3d 420 (2nd Dept 2005); Friedman v. U-Haul Truck Rental, 216 AD2d 266 (2nd Dept 1995). The reports of the original radiologist who reviewed the MRI films, Dr. Mark Freilich [exhibits H and I of plaintiff's opposition papers], are inadmissible because they are unsworn. Grasso v. Angerami, 79 NY2d 813 (1991); Xiaowen Feng v. New York City Transit, 232 AD3d 650 (2nd Dept 2005); Pagano v. Kingsbury, 182 AD2d 268 (1992).
Further, Dr. Limani's affirmation, dated November 22, 2004, was prepared more than one year after plaintiff testified in his examination before trial, at pages 61-62 [exhibit C of motion], that plaintiff had last sought medical treatment for his alleged injuries. Dr. Limani states, in his affidavit, that he only reviewed MRI films and other medical reports. He doesn't state that he examined plaintiff. Therefore, Dr. Limani's affidavit provides no proof as to the duration of plaintiff's alleged injuries. Under these circumstances, this is insufficient proof of the duration of plaintiff's alleged injuries. Sainte-Aime v. Ho, 274 AD2d 569 (2nd Dept 2000). See Magarin v. Kropf, 24 AD3d 733 (2nd Dept 2005); Davis v. New York City Transit Authority, 294 AD2d 531 (2nd Dept 2002); Arshad v. Gomer, 268 AD2d 450 (2nd Dept 2000).
Dr. Cotter's affidavit is likewise deficient for purposes of defeating defendants' threshold motion. Dr. Cotter treated plaintiff from July 9, 2002 to August 16, 2002. More than two years later, he examined plaintiff, on October 29, 2004, for the purpose of preparing an affidavit for use in the instant action. Dr. Cotter relies extensively on the unsworn reports of NCT Diagnostic, Inc. and Dr. Freilich. As noted above, these reports are inadmissible. More important, Dr. Cotter offers no explanation for a gap in treatment of more than two years by plaintiff with him, and, according to plaintiff's EBT, of more than one year from plaintiff's last visit with any medical professional as a result of the accident. The Court of Appeals examined the issue of gaps in treatment in the context of determining "serious injury" under the No-Fault Law (Insurance Law § 5101 et seq.) in Pommells v. Perez, 4 NY3d 566 (2005). The Court concluded, at 572, that "even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury — such as a gap in treatment, an intervening medical problem or a preexisting condition — summary dismissal of the complaint may be appropriate." In Pommells, plaintiff, claiming a herniated disc, ceased all treatment six months after his accident and sought no other treatment with respect to his accident for more than three years until visiting an orthopedist for preparation of a sworn report for his litigation. Supreme Court, Bronx County granted defendants' motion for summary judgment and dismissal. The Appellate Division, First Department affirmed. The Court of Appeals, in affirming dismissal, instructed, at 574:
While a cessation of treatment is not dispositive the law surely does not require a record of needless treatment in order to survive summary judgment — a plaintiff who terminates therapeutic measures following the accident, while claiming "serious injury," must offer some reasonable explanation for having done so. Here, plaintiff provided no explanation whatever as to why he failed to pursue any treatment for his injuries after the initial six-month period, nor did his doctors ( see Franchini v. Palmieri, 1 NY3d 536 [2003]).
Thus, the affidavit of the treating chiropractor, Dr. Cotter, is insufficient to raise a triable issue
of fact as to whether plaintiff sustained a serious injury with the failure to explain plaintiff's lengthy gap in treatment. See Mullings v. Huntwick, ___ AD3d ___, 2006 NY Slip Op 01118 (1st Dept, Feb. 14, 2006); Mahabir v. Ally, ___ AD3d ___, 2006 NY Slip Op 01003 (2nd Dept, Feb. 7, 2006); Karabchievsky v. Crowder, 24 AD3d 614 (2nd Dept 2005); Jian-Yu Zhang v. Qiang Wang, 24 AD3d 611, (2nd Dept 2005); Joseph v. Layne, 24 AD3d 516 (2nd Dept 2005); Farozes v. Kamran, 22 AD3d 458 (2nd Dept 2005).
Dr. Green's affidavit also suffers from many of the same defects as that of Dr. Limani and Dr. Cotter. His entire affidavit is based upon inadmissible, unsworn medical reports. Dr. Green makes no mention of the nature of plaintiff's medical treatment following the accident, the duration of plaintiff's medical treatment, or of any objective tests that Dr. Green performed on plaintiff. The only medical injury Dr. Green states in his affidavit is cervical radiculopathy secondary to trauma. This alone is insufficient to satisfy the serious injury threshold of Insurance Law § 5102 (d). Foley v. Karvelis, 276 AD2d 666 (2nd Dept 2000); American Transit Ins. Co. v. Ebrahim, 236 AD2d 274 (1st Dept 1997). Furthermore, the inadmissible report referred to by Dr. Green is based upon an examination more than two years before defendants' threshold summary judgment motion was made. Therefore, Dr. Green's affidavit provides no proof as to the duration of plaintiff's alleged injuries. Sainte-Aime v. Ho, supra. See Magarin v. Kropf, supra; Davis v. New York City Transit Authority, supra; Arshad v. Gomer, supra.
It is clear in the instant case that with the unexplained and lengthy gap in plaintiff's treatment, compounded by the use of inadmissible reports in the affidavit of Dr. Limani and the affirmations of Dr. Cotter and Dr. Green, plaintiff has failed to demonstrate the existence of triable issues of fact to rebut the evidence presented by defendants for the granting of summary judgment and dismissal of the instant action.
Conclusion
Accordingly, it is
ORDERED, that the motion of defendants for summary judgement and dismissal of the instant action, pursuant to CPLR § 3212, on the grounds that plaintiff has not met the "threshold" for a "serious injury" as defined in New York Insurance Law § 5102 (d), is granted, and it is further
ORDERED, that the instant action is dismissed.
This constitutes the Decision and Order of the Court.