Opinion
September 1, 2000
Cheven, Keely Hatzis, New York City, and Thomas Torto and Jeffrey L. Caress, New York City, for appellant.
Louis Fiabane, New York City, for respondents.
PRESENT: KASSOFF, P.J., ARONIN and SCHOLNICK, JJ.
MEMORANDUM.
Order reversed without costs, defendant's motion for summary judgment granted, and complaint dismissed.
Defendant made a prima facie case showing that plaintiff Titus Toriola did not sustain a "serious injury" within the meaning of Insurance Law § 5102. The court below properly determined that plaintiff's medical submissions were insufficient to raise any issues of fact. The affidavit of plaintiff's chiropractor, Dr. Scott Leist, either failed to quantify the degree of movement (see, Thompson v. Cochran, 253 A.D.2d 871;Wilkins v. Cameron, 214 A.D.2d 557) or failed to state which objective tests were performed to determine restriction of movement (see, DiNunzio v. County of Suffolk, 256 A.D.2d 498; Merisca v. Alford, 243 A.D.2d 613;Lincoln v. Johnson, 225 A.D.2d 593). Moreover, Dr. Leist's conclusion that the accident "caused and exacerbated restriction of motion in [plaintiff's] lumbar spine" was apparently based on an annexed unsworn MRI report from another doctor, as well as two other reports which were not attached to Dr. Leist's affidavit, and upon which plaintiff cannot rely (see, Williams v. Hughes, 256 A.D.2d 461; Merisca v. Alford, supra; Friedman v. U-Haul Truck Rental, 216 A.D.2d 266).
Contrary to the court's determination, plaintiff's evidentiary proof was also insufficient to raise any issues of fact as to whether he sustained a medically-determined injury which precluded him from performing substantially all of his daily and customary activities for at least 90 of the 180 days following the occurrence of the accident. While plaintiff alleged that he was confined to his house for approximately five months, and was unable to perform his duties as a truck driver for seven months after the accident, plaintiff has failed to provide competent medical evidence which would link his inability to work with the injuries sustained as a result of the accident (see, DiNunzio v. County of Suffolk, supra; Traugott v. Konig, 184 A.D.2d 765).
Kassoff, P.J., and Scholnick, J., concur.
Aronin, J., dissents in a separate memorandum.
Resolution of the case presented upon appeal hinges upon the application of a number of well-settled legal principles. The majority has referred to law and cases related to motions made pursuant to Insurance Law § 5102. However, other principles of law have been overlooked in the process.
The function of the court upon a summary judgment motion is issue finding, not issue resolution (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404; McKinney v. Setteducatti, 183 A.D.2d 879; Krupp v. Aetna Life Cas. Co., 103 A.D.2d 252, 261), as summary judgment is a drastic remedy available only where there is no doubt as to whether a triable issue exists (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223; Barclay v. Denckla, 182 A.D.2d 658; Marine Midland Bank v. Dino Artie's Automatic Transmission Co., 168 A.D.2d 610). The burden of the movant upon a summary judgment motion is to establish the cause of action or defense as a matter of law; to defeat the grant of the motion, the opponent need only establish the existence of a material question of fact (Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1068; Spain v. New York City Tr. Auth., 265 A.D.2d 319), a burden which is heavier for the movant than the party opposing the motion (Winegrad v. N.Y.U. Med. Cntr., 64 N.Y.2d 851, 853; Piccirillo v. Piccirillo, 156 A.D.2d 748, 750; Hantz v. Fishman, 155 A.D.2d 415, 416). It is not for the court to determine either credibility or the probability of success on the merits, but to determine whether an issue of fact exists (Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Hantz v. Fishman, supra at 416). Questions of credibility are ill-suited for summary judgment, and should be reserved for trial (Barr v. County of Albany, 50 N.Y.2d 247, 254;S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341; Gniewek v. Cons. Edison, 271 A.D.2d 643, 707 N.Y.S.2d 871; Dyckman v. Barrett, 187 A.D.2d 553, 554.).
Nowhere in the cases cited by the appellant or the majority have these basic principles of law been overruled or altered by the Court of Appeals. However, in recent cases involving personal injury in automobile accidents, the above cited familiar and quintessentially basic legal principles have been turned upon their heads, resulting not in the even-handed administration of justice in accord with settled law, but a policy-driven result which ignores both law and the facts presented. The quantum of proof necessary to oppose has been transformed from the presentation of a question of fact to the presentation of persuasive evidence of a particular type, and determinations of the respective persuasiveness of expert evidence are blithely made by the court, on papers only. The majority's decision in this case follows that line of cases.
Here, the plaintiff submitted as evidence the affidavit of his chiropractor, Dr. Scott Leist, referring to several objective medical tests showing abnormal neurological results, and to which was attached a copy of the MRI of the lumbar spine revealing an annular bulging disc at L4-5 and L5-S1. Dr. Leist's affidavit further asserted that his examination showed a twenty degree restriction of motion in the lumbar spine. The plaintiff also submitted an affidavit stating that he was a self-employed truck driver, and had been unable to perform his duties after the accident for a period of seven months, being confined to home for five of those months.
The majority has apparently determined that the plaintiff's proof is less compelling than that of the defendant, and that the determination of the Civil Court should therefore be reversed. However, the most basic principles governing summary judgment and appellate review are trampled by this decision. It is not the function of this court to weigh the evidence presented and choose which party's experts are more worthy of credence, nor is it our function to reverse decisions by a lower court which are not erroneous in either fact or law.