Opinion
101586/07.
Decided July 9, 2009.
Firm: Gorayeb Associates, P.C., New York, New York, Attorney for the Plaintiff.
Firm: Silverman, Sclar, Byrne, Shin/ano, New York, New York, Attorney for the Defendant.
On October 26, 2006, co-plaintiff Angel Uribe was the owner and operator of a taxi involved in an accident with a bus owned by co-defendant Amboy Bus Co., Inc. and operated by co-defendant Willie Davis. The accident occurred on Westchester Avenue near the intersection of Jackson Avenue in the Bronx. On or about February 2, 2007, plaintiff commenced this action to recover damages for alleged personal injuries suffered as a result of the subject accident. The parties have completed discovery and a note of issue was filed. Co-defendants Amboy and Davis now timely move for summary judgment, pursuant to CPLR § 3212, alleging that plaintiff has failed to establish that he suffered a "serious injury" pursuant to Insurance Law § 5102 (d). They also move for summary judgment on liability, pursuant to CPLR § 3212. A translator was necessary and has been present at all levels of discovery including physical exams.
SERIOUS INJURY THRESHOLD
Pursuant to the Comprehensive Motor Vehicle Insurance Reparation Act of 1974 (now Insurance Law § 5101, et seq. — the "No Fault" statute), a party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the nine categories of "serious injury" as set forth in Insurance Law § 5102 (d) ( Marquez v New York City Tr. Auth., 259 AD2d 26, 686 NYS2d 18 [1st Dept 1999]; DiLeo v Blumberg, 250 AD2d 364, 672 NYS2d 319 [1st Dept 1998]).
Insurance Law § 5102 (d) defines "serious injury" as:
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a on-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
According to the plaintiffs' bill of particulars they alleges serious injury under six of the nine categories of serious physical injuries discussed by Insurance Law § 5102 (d). However, the records indicate that there is no evidence of a fracture or a significant disfigurement, which leaves the Court to review the following categories: (1) a permanent loss of use of a body organ, member, function, or system; (2) a significant limitation of use of a body function or system; (3) a permanent consequential limitation of use of a body function or system; or (4) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
See defendants' motion, plaintiffs' verified bill of particulars, Exhibit J, ¶ 4.which claims (1) fracture; (2) a significant disfigurement; (3) a permanent loss of use of a body organ, member, function, or system; (4) a significant limitation of use of a body function or system; (5) a permanent consequential limitation of use of a body function or system; or (6) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
Serious injury is a threshold issue, and thus, a necessary element of plaintiff's prima facie case ( Licari v Elliott, 57 NY2d 230; Toure v Harrison , 6 AD3d 270 , 775 NYS2d 282 [1st Dept 2004]; Insurance Law § 5104 [a]). This is in accord with the purpose of the "No-Fault" law, which was to "weed out frivolous claims and limit recovery to significant injuries'" ( Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345, quoting Dufel v Green, 84 NY2d 795, 798; Licari v Elliott, 57 NY2d 234; Rubensccastro v Alfaro , 29 AD3d 436 , 815 NYS2d 514 [1st Dept 2006]).
In order to satisfy the statutory threshold, the plaintiff must submit competent objective medical evidence of his or her injuries, based on the performance of objective tests ( Grossman v Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept 2000]; Lopez v Senatore, 65 NY2d 1017, 1019). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury ( Gaddy v Eyler, 79 NY2d 955, 957; Scheer v Koubek, 70 NY2d 678, 679).
It is well settled that positive MRI results may constitute a serious injury within the meaning of Insurance Law § 5102(d) ( see Pommels v Perez , 4 NY3d 566 ; Nagbe v Mimigreen Hacking Group, Inc., 22 AD3d 326, 802 NYS2d 416 [1st Dept 2005]). Furthermore, a CT scan or MRI may constitute objective evidence to support subjective complaints ( see Arjona v Calcano , 7 AD3d 279 , 776 NYS2d 49 [1st Dept 2004]; Lesser v Smart Cab Corp., 283 AD2d 273, 274, 724 NYS2d 412 [1st Dept 2001]). The plaintiff's medical submissions must show when the tests were performed, the objective nature of the tests, what the normal range of motion should be and whether the plaintiff's limitations were significant ( see Milazzo v Gesner, 33 AD2d 317, 822 NYS2d 49 [1st Dept 2006]; Vasquez v Reluzco , 814 28 AD3d 365 , 814 NYS2d 117 [1st Dept 2006]).
With respect to the categories of significant limitation of use of a body function or system and permanent consequential limitation of use, "[w]hether a limitation of use or function is" significant'" or "consequential'" (i.e., important . . .) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part'" ( Toure v Avis Rent A Car System, supra quoting Dufel v Green, supra).
Where the plaintiff claims serious injury under the "90/180" category of the Insurance Law § 5102 (d), he must first demonstrate that substantially all his usual activities were curtailed during the requisite time period and second submit competent credible evidence based on the objective findings of a "medically determined" injury or impairment which caused the alleged limitations in his daily activities (see Toure v Avis Rent A Car Systems, supra; Licari, supra). 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 ( Thompson v Abassi, 15 AD2d 95, 100-101, 788 NYS2d 48 [1st Dept 2005]). Proof requires a specific, non general medical statement from a treating physician to support a 90/180 day claim ( see Morris v Ilya Cab Corp. , 61 AD3d 434 , 876 NYS2d 61[1st Dept 2009]).
SUMMARY JUDGMENT ON SERIOUS INJURY
The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the courts which may decide the issue on a motion for summary judgment ( Perez v Rodriguez, 25 AD2d 506 [1st Dept 2006]). On a motion for summary judgment based upon a failure to sustain a serious injury, the defendants bear the initial burden of establishing the absence of a serious injury by tendering evidentiary proof in admissible form eliminating any material issues of fact from the case ( Toure v Avis Rent A Car Sys., supra; see also Gaddy v Eyler, supra; Pirrelli v Long Is. R.R., 226 AD2d 166, 641 NYS2d 240 [1st Dept 1996]).
Defendant may rely either on the sworn or affirmed statements of their examining physician, plaintiff's deposition testimony and plaintiff's unsworn physician's records (Newton v Drayton, 305 AD2d 303, 760 NYS2d 38 [1st Dept 2003]; Fragale v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 56 [2d Dept 1992]). But, the Courts have unanimously held that a party may not use an unsworn medical report prepared by the party's own physician on a motion for summary judgment ( see Grasso v Angerami, 79 NY2d 813; Offman v Singh , 27 AD3d 284 , 813 NYS2d 56 [1st Dept 2006]). Moreover, CPLR § 2106 requires a physician's statement be affirmed (or sworn) to be true under the penalties of perjury. An affirmed physician's report demonstrating that plaintiff was not suffering from any disability or consequential injury resulting from the accident is sufficient to satisfy a defendant's burden of proof ( see Gaddy v Eyler, supra).
Once a defendant has made such a showing, the burden shifts to the plaintiff to come forward with prima facie evidence, in admissible form, to rebut the presumption that there is no issue of fact as to the threshold question ( see Pommells v Perez, 4 NY3d 566; Gaddy v Eyler, supra; Perez v Rodriguez, supra). A medical affirmation or affidavit based on a physician's own examination, tests, and review of the record, can support the existence and extent of a plaintiff's serious injury ( O'Sullivan v Atrium Bus Co., 246 AD2d 418, 688 NYS2d 167 [1st Dept 1998]).
DISCUSSION
The Defendants' Motion on the issue of "serious injury"
Plaintiffs verified bill of particulars reflects that Angel suffered multilevel disc bulging from C3-C4 through C6-C7 with ventral epidural space effacement; disc herniation at L4-L5, more prominent to the left with foraminal stenosis; L4-L5 radiculopathy; disc bulge at L3-L4 with anterior thecal sac effacement; cervical/lumbar post traumatic myofascial pain; redness, swelling and irr[it]ation of the right eye as a result of airbag deployment; pterygium medial right eye; blurred vision right eye; and floaters in right eye. Angel went by ambulance to, was treated at and released from the Lincoln Medical Health Center on the date of the accident. No x-rays were taken He was confined to bed for approximately one week and was confined to home for one week. Angel states that he has and continues to experience impairment and difficulty with daily activities subsequent to the accident. Angel indicates that he did not return to driving a taxi until March 2007.
In support of their motion, defendants submit, amongst other things, copies of the pleadings, plaintiff's deposition testimony, unaffirmed medical records (see Notice of Motion, Exhibit O), plus medical reports from Drs. Feuer, Carter and Ellant, which were sworn to by Drs. Feuer and Carter but not Ellant (id., at Exhibits L, M and N).
On January 18, 2008, after reviewing medical records and examining Angel, Dr. Carter concluded that Angel was neurologically intact and there was no evidence of any radiculopathy caused by disc bulges discs or a herniation.
On January 28, 2008, Dr. Feuer, a neurologist, examined Angel's cervical and lumbosacral spines finding all ranges of motion to be within normal limits. He measured cervical flexion at 45 degrees (45 degrees being normal); cervical extension at 55 degrees (55 degrees being normal); right rotation at 70 degrees (70 being normal); and left rotation at 70 degrees (70 degrees being normal). He measured lumbar flexion at 90 degrees (90 degrees being normal); lumbar extension at 25 degrees (25 degrees being normal); right lateral flexion at 30 degrees (30 degrees being normal); and left lateral flexion at 30 degrees, 30 degree being normal). He reviewed the medical reports of the October 26, 2006 Lincoln Center emergency room; Dr. Boppana for December 4th through May 30, 2007; Drs. Crone and Kaplan; the December 8, 2006 MRI reports of the lumbar spine, cervical spine and brain from New York Ortho Sports Medicine Traum; Dr. Boppana's January 19, 2007, EMG/NCV test of the lower extremities. In his medical report which was affirmed, he noted that Angel was not under active treatment by his previously treating physicians, and was employed as a taxi driver. His impression was that Angel did not demonstrate any objective neurological disability or neurological permanency causally related to the accident.
On February 22, 2008, Dr. Ellant, an opthalmologist, submitted a non-affirmed medical report. As mentioned above, unsworn or unaffirmed medical report are inadmissible, thus, Dr. Ellant's report will not be considered on this motion (See Grasso v Angerami, supra; Offman v Singh, supra; CPLR § 2106).
The defendants also rely on Angel's bill of particulars (see Affirmation in Opposition, Exhibit 1, Amended Verified Bill of Particulars ¶ 5) and statement's from his deposition to support their argument that the there is no basis for angel's 90/180 day claim wherein he states that he was confined to bed and home for three days to one week.
Based on the foregoing, defendants have submitted evidence in legally admissible form to meet their prima facie burden, entitling them to summary judgment and a finding that plaintiff has not sustained a "serious injury" within the meaning of Insurance Law § 5102 [d] ( see, Gaddy v Eyler, supra; Lowe v Bennett, 122 AD2d 728, 511 NYS2d 603 [1st Dept 1986], affd, 69 NY2d 700). Thus, the burden shifts to plaintiff to produce evidentiary proof in admissible form in order to establish the existence of a serious injury ( see Taynisha Baez v Imamally Rahamatali, 6 NY3d 868 ; Franchini v Palmieri , 1 NY3d 536 ; Gaddy v Eyler, supra; Shinn v Catanzaro, 1 AD3d 195, 767 NYS2d 88 [1st Dept 2003]; Zuckerman v City of New York, 49 NY2d 557, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003], leave to appeal granted 1NY3d 506 [2004], affd 3NY3d 295 [2004]).
In opposition, Angel submits his deposition testimony, his affidavit, and three medical reports consisting of two unaffirmed medical reports from Dr. Robert Waxman, and one affirmed medical report from Dr. Madhu Boppana, a neurologist In his affidavit Angel states that he had no pain in the affected areas prior to the accident and he did not return to work as a taxi driver until March 2007. He states that he cannot work the same amount of hours as he did prior to the accident. He also claims that he is still in pain and takes pain medication on a regular basis.
Dr. Waxman's December 8, 2006 MRI lumbar and cervical spine medical reports are unaffirmed and unsworn and would usually be inadmissible in this motion ( see Grasso v Angerami, supra; Offman v Singh, supra; CPLR § 2106.) However, they are admissible evidence here, because Dr. Waxman's MRI medical records were properly referenced and reviewed by defendants' medical expert (Dr. Feuer) in his medical affirmation (see Pommells v Perez , 4 NY3d 566 , 577, n 5 [2005] ; Navedo v Jaime , 32 AD3d 788 , 822 NYS2d 43, [1st Dept 2004]; Brown v Achy , 9 AD3d 30 , 776 NYS2d 56 [1st Dept 2004]; Gonzalez v Vasquez, 301 AD2d 438, 754 NYS2d 7 [1st Dept 2003]; Ayzen v Melendez, 299 AD2d 381, 749 NYS2d 443 [1st Dept 2002]). Angel's physician, Dr. Boppana, stated in his medical affirmation that he reviewed the plaintiff's MRI films and incorporated their results in his conclusions.
See Notice of Motion, Dr. Daniel Feuer's affirmed medical report, Exhibit L, at 2, "Review of Records," items 5 and 6.
See Affirmation in Opposition, affirmed medical report of Dr. Boppana, Exhibit 7, ¶ 5.
Dr. Waxman's MRI reports indicated that plaintiff suffered a broad based disc herniation at L4-L5 with left foraminal stenosis and a disc bulge at L3-L4 with anterior thecal sac effacement, and multilevel disc bulging from C3-C4 through C6-C7 with ventral epidural space effacement.
Dr. Boppana's July 28, 2008 medical report, indicates he first examined Angel on November 8, 2006, and then again on December 4, 2006. Plaintiff Angel presented him with complaints of pain and stiffness in the neck back and sharp radiating pain into the left calf. A series of transforaminal epidural steroid injections were subsequently given on July 26, 2007, August 23, 2007 and September 27, 2007.
On January 8, 2008 Angel returned to Dr. Boppana complaining of worsening neck and back pain. Dr. Boppana reviewed the MRI films and Angel was given a series of trigger point injections in the lumbar paraspinous musculature and he was advised to continue physical therapy and anti-inflammatory medication. Dr. Boppana re-examined Angel on July 28, 2008 at which time he found his straight leg raising to be positive at 45 degrees, as compared to 60 degrees previously measured on December 4, 2006 (negative being normal). He also measured lumbar extension at 25 degrees, as compared to 15 degrees previously measured on December 4, 2006 (normal being 30 degrees); lumbar flexion at 60 degrees, as compared to 45 degrees previously measured on December 4, 2006 (normal being 90 degrees); cervical extension at 25 degrees, as compared to 15 degrees previously measured on December 4, 2006 (normal being 30 degrees); and cervical flexion at 25 degrees (normal being 30 degrees). The July 28, 2008 ranges of motion serve as objective admissible evidence of the persistence of plaintiff's injury ( compare Copeland v Kasalica , 6 AD3d 253 [1st Dept 2004]; Collins v Jost, 281 AD2d 175 [1st Dept 2001]).
Drs. Feuer and Boppana differ on what the normal range is for lumbar extension, cervical extension and cervical flexion.
Dr. Boppana opines that Angel was incapacitated from his usual occupation as a taxi driver from the date of his accident until he returned to part time work in March 2007, and that Angel suffered a significant limitation of use of his body function or system as a result of the accident and he continues to be limited in his activities of daily life and suffers from significant limitations. Other than making a generalized statement, he did not specify which activities are significantly limited. An expert's substantiation should identify the extent that a plaintiff's activities have been limited ( Delpilar v Browne, 282 AD2d 647, 723 NYS2d 241 [2nd Dept 2001]).
Defendants suggest that Angel's serious injury action should be dismissed due to a four month cessation in treatment. Prior to the January 28, 2008 examination, Dr. Boppana had last seen Angel on September 7, 2007. "A plaintiff need not incur the additional expenses of consultation, treatment or therapy, merely to establish the seriousness or causal relationship of his injury" ( see Pommels v Perez at 577). Cessation of treatment sufficiently explained raises an issue of fact sufficient to survive summary judgment ( Ibid.). Angel explains that he has had to continue to take medications for his ongoing pain subsequent to the post January 2008 lumbar injections as an explanation for the alleged gap in treatment.
Finally, Angel does not demonstrate that he suffered an injury which limited "substantially all" of his daily activities for 90 of the 180 days immediately after the accident and his objective medical evidence to support his claim is insufficient ( see Morris v Ilay Cab Corp., supra; Insurance Law § 5102 [d] [5]).
Here, though the evidence presented by Angel does not rebut defendants' proof that he did not suffer serious injury under the Insurance Law § 5102 (d) categorizations of a permanent loss of use of a body organ, member, function, or system; a permanent consequential limitation of use of a body function or system; or the 90/180-day category, the objective criteria and their norms as presented in Dr. Boppana's medical affirmation has raised material issues of fact as to whether or not Angel sustained injuries under the Insurance Law § 5102 (d) category of a significant limitation of use of a body function or system category ( see Pommells v Perez at 577).
Defendants' motion for Summary Judgment on Liability
Defendants submit, inter alia, the pleadings, an uncertified New York State Department of Motor Vehicles Police Accident Report (MV-104AN (7/01)), and the parties deposition testimonies. The deposition testimonies establish that Angel was proceeding east on Westchester Avenue in the lane next to the double yellow line and the Amboy bus being driven by Davis was proceeding west on Westchester Avenue in the lane next to the double yellow line. Angel recites in his July 28, 2008 affidavit and his August 24, 2007 deposition testimony, his claims that the bus veered over the double yellow line at which point the front of the bus allegedly struck the front and side of his car causing Angel's airbag to deploy ( see Defendants' Affirmation in Opposition, ¶ 6, referencing Angel's deposition testimony, and Defendants' Notice of Motion, ¶ 10, referencing Davis' deposition testimony). Angel also avers that, after the point of impact, both vehicles traveled some distance apart and his car was either pushed or pulled over the double yellow line and was turned in such a way that it wound up near the middle of the bus. Davis testified at his deposition that he did not see Angel's vehicle cross the yellow line but states that he only realized that there had been a collision when he "heard" Angel's vehicle strike the bus.
The defendants also offer prime facie photographs allegedly taken after the accident by another bus driver employed by the defendant Amboy Bus Company who was just passing by the accident ( see Notice of Motion, Exhibit I, Affirmation in Opposition, Exhibit 4). This unidentified bus driver allegedly named "Carmen" is never properly identified, deposed nor submitted an affidavit to authenticate the photographs. Moreover, the defendant Davis when asked about the photographs he replied that he never saw the photos and was unaware how were taken ( id., Exhibit G, at 35-36):
The Court holds these photographs are inadmissible on this motion. We rely upon the Appellate Division, First Department's recent holding in Coleman v Maclas , 61 AD3d 569 , 2009 NY Slip Op. 03100 [ 1st Dept. April 23, 2009]. The Court affirmed that "the [trial] court properly disregarded the uncertified police reports and unauthenticated photographs as they were inadmissible hearsay ( see Figueroa v Luna, 281 AD2d 204, 206, 721 NYS2d 635 [2001])." The Court held "Further, the affirmation by plaintiff's counsel, who had no personal knowledge of the accident, was not admissible evidence . . . ( see Johnson v Phillips, 261 AD2d 269, 270-271, 690 NYS2d 545 [1999])."
In addition, defendants (uncertified) copy of the New York State Department of Motor Vehicles Police Accident Report (MV-104AN (7/01)) is also inadmissible to prove liability. Uncertified police accident reports are inadmissible to indicate a parties liability because the police officer who prepared the report was not an eyewitness to the accident as it constitutes inadmissible hearsay, (see Coleman v Maclas , 61 AD3d 569 , 877 NYS2d 297, 2009 NY Slip Op. 03100 [ 1st Dept. April 23, 2009]; Figueroa v Luna, 281 AD2d 204,721 NYS2d 635 [1st Dept 2001]; Ann Connors v. Duck's Cesspoool Services, Ltd., 144 AD2d 329, 533 NYS2d 942 [1st Dept 1988]; Murray v Donlan, 77 AD2d 337, 433 NYS2d 184 [1st Dept 1980]).
Moreover, the Appellate Division, First Department also recently decided Soto-Maroquin v Mellet ___AD3d___, 2009 NY Slip Op 04357, *1 [1st Dept, June 4 2009], (10 days after its decision on April 23, 2009 in Coleman v Maclas, supra) that uncertified police accident reports that contain the statements made by the parties to the police officer preparing the accident report and falls into a hearsay exception under "spontaneous statements" or "declaration against interests" are also inadmissible. ( cf. Soto-Maroquin v Mellet, Sup Ct, NY County, October 14, 2008, Wooten J. Index No. 108798/07 [uncertified police report contained admission from defendant], affd ___AD3d___, 2009 NY Slip Op 04357, *1 [1st Dept 2009] ["consideration of uncertified police report was harmless in view of defendant's passenger's affidavit attesting to what defendants object to in the police report, namely, that defendants' vehicle struck plaintiff's vehicle in the rear"]; compare Voskin v Lemel , 52 AD3d 503 , 503, 859 NYS2d 489 [2d Dept 2008] ["plaintiff's case buttressed by the certified copy of the police accident report containing the defendant's admission that he did not see the plaintiff and struck him"]; 2 McCormick on Evidence 2d §§ 271 and 272).
Accordingly, the defendants do not meet their burden of proof by admissible evidence on their partial summary judgment motion on liability, pursuant to the New York State Insurance Law and CPLR § 3212.
In addition, presenting the Court's analysis for the purposes of appellate review, we find that the plaintiff has presented sufficient admissible evidence that there exists material questions of fact for trial which also requires that the defendants summary judgment on the issue of liability be denied.
For these reasons and upon the foregoing papers, it is,
ORDERED that the motion by Amboy Bus Co., Inc. and Willie Davis for summary judgment on the issue of serious injury is granted to the extent of dismissing those allegations of serious injury under the following categories, pursuant to Insurance Law § 5102 (d): (1) a permanent loss of use of a body organ, member, function, or system; (2) a permanent consequential limitation of use of a body function or system; and (3) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment, but is denied as to the a significant limitation of use of a body function or system category pursuant to Insurance Law § 5102 (d); and it is further
ORDERED that the Amboy Bus Co.'s and Willie Davis's motion for summary judgment on the issue of liability is denied; and it is further
ORDERED that the Clerk of the Court is directed to enter partial summary judgment in accordance with this order.
This constitutes the Decision and Order of the Court.