Opinion
12735/03.
Decided June 6, 2006.
Upon the foregoing papers, defendants' motion for summary judgment dismissing the complaint on the ground that plaintiffs' injuries fail to meet the statutory threshold of "serious injury" as defined in Insurance Law § 5102(d) is granted, and the complaint is hereby dismissed.
This matter arises out of a two vehicle accident which occurred on June 1, 2002, on Forest Avenue at its intersection with Jewett Avenue in Staten Island, New York. Plaintiffs, the operator and front seat passenger of one of the vehicles, each claim to have sustained "serious" personal injuries, i.e., "a permanent loss of use of a body organ, member, function or system; or permanent consequential limitation of use of a body organ or member and/or significant limitation of use of a body function or system and/or a medically determined injury which prevented the plaintiff from performing substantially all of the material acts which constitute his or her usual and customary daily activities for in excess of ninety of the first one hundred eighty days immediately following the occurrence complained of" (Plaintiffs' December 31, 2003 Verified Bill of Particulars, para. 26, Defendants' Exhibit B). More particularly, plaintiff Leonid Shulman claims to have sustained, inter alia, "medial meniscal tear extending into the inferior surface of the posterior horn of the medial meniscus; partial tear of the supraspinatus tendon, and central herniation of L4-5 and L5-S1 with compression of the thecal sac" ( Id., para 5), while his wife, plaintiff Svetlana Shulman, claims to have sustained, inter alia, "partial tear of the supraspinatus tendon; exaggerated lordosis of the cervical spine; herniated discs at C5-6, and bulging discs at C6-7" ( Id.). Both plaintiffs underwent regular treatments with Yury Koyen, M.D., from June 6, 2002 through September 25, 2002, and were later re-examined by Dr. Koyen in December of 2005 following the service of this motion. It is conceded that both plaintiffs were involved in a prior (June 2000) automobile accident in which they claimed to have suffered similar spinal injuries ( see Verified Bill of Particulars in prior action, Defendants' Exhibit C).
In support of their motion to dismiss the complaint, defendants submit the July 14, 2005 affirmation of a neurologist, Burton S. Diamond, M.D., who diagnosed plaintiff Leonid Schulman (hereinafter Leonid) with "cervical and lumbar sprain, resolved" ( see Defendants' Exhibit G), and plaintiff Svetlana Schulman (hereinafter Svetlana) with "cervical sprain, resolved, and complaints of left shoulder pain" ( see Defendants' Exhibit J). In addition, defendants submit the July 18, 2005 affirmation of an orthopedist, Eduardo Alvarez, M.D., whose clinical impression relative to Leonid was that of "sprain/strain of the lumbosacral spine, and contusion and sprain of the right knee" ( see Defendants' Exhibit H), while that relative to Svetlana was that of "sprain/strain of the cervicothoracic spine, resolved, and sprain/strain of the lumbosacral spine, resolved" ( see Defendants' Exhibit K).
In opposition, plaintiffs argue that their respective injuries are "serious" within the meaning of Insurance Law § 5102(d) and attach as to each plaintiff (1) the January 11, 2006 affirmations of their treating physician, Yury Koyen, M.D., (2) the December 6, 2005 affirmation of an examining physician, Harshad C. Bhatt, M.D., based on a single examination of each plaintiff on July 24, 2002 ( see Defendants' Exhibits C, H), and (3) unaffirmed MRI reports from Quest Medical Diagnostic as to each plaintiff (see Defendants' Exhibits D, I).
Although unaffirmed, these reports are properly before the Court inasmuch as they were initially referred to by moving defendants ( see Ayzen v. Melendez, 299 AD2d 381).
At the outset, plaintiffs' claims of serious injury predicated upon the alleged "permanent loss of use of a body organ, member, function or system" ( see Defendants' Exhibit B) must be dismissed ( see Oberly v. Bangs Ambulance, 96 NY2d 295), as plaintiffs' alleged injuries indisputably are not "total" ( Id. at 299).
Turning to the remaining claims of serious injury, the supporting affirmations of Drs. Diamond and Alvarez constitute a prima facie showing that plaintiffs did not sustain serious injuries within the meaning of Insurance Law § 5102 (d) as a result of the June 1, 2002 accident ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955; Kearse v. New York City Tr. Auth., 16 AD3d 45). Consequently, the burden has shifted to plaintiffs to come forward with sufficient evidence demonstrating the existence of a triable issue of fact as to whether the purported injuries are "serious" ( see Toure v. Avis Rent-A-Car Sys., 98 NY2d at 350; Cortez v. Manhattan Bible Church, 14 AD3d 466). However, "even where there is medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury — such as a gap in treatment . . . or a pre-existing condition — summary dismissal of the complaint may be appropriate" ( Pommells v. Perez, 4 NY3d 566, 572).
In this case, not only does Dr. Koyen's failure to discuss the prolonged (three year) gap in treatment following each plaintiff's comparatively brief (three and one-half month) course of therapy warrant dismissal of the complaint ( see Mahabir v. Ally, 26 AD3d 314 [2nd Dept 2006]), but neither he nor Dr. Bhatt have attested that they personally reviewed the MRI films relative to plaintiffs' non-spinal injuries. As for plaintiffs' allegation of spinal injuries, the failure of their experts to provide medical details supporting their summary exclusion of the prior automobile accident as the proximate cause of the claimed residual injuries ( see e.g. Rogers v. Chiarelli, 10 AD3d 355) renders their like claims in this case speculative at best ( cf. Ginty v. MacNamara, 300 AD2d 624). Indeed, notwithstanding Dr. Koyen's reference to an awareness of plaintiffs' prior spinal injuries in his January 11, 2006 affirmation, his report of September 25, 2002 demonstrates a total lack of awareness of same ( see Plaintiffs' Exhibit A, para 3; "Past Medical History" — "Non-contributory").
Accordingly, it is
ORDERED, that defendants' motion for summary judgment is granted and the complaint is dismissed; and it is further
ORDERED, that the Clerk of the Court enter judgment accordingly.