Summary
In Vignola v. Varrichio, 243 AD2d 464 (2nd Dept. 1997), the court granted defendant's motion for summary judgment finding no serious injury when plaintiff's doctor, in opposition, failed to cite to any MRI films confirming a meniscus tear.
Summary of this case from Johnson v. SinghOpinion
October 6, 1997
Appeal from the Supreme Court, Nassau County (Bucaria, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
Initially, we note that "it is well settled that a moving defendant may rely upon the unsworn reports of the plaintiff's own physicians in support of a motion for summary judgment" ( Torres v. Micheletti, 208 A.D.2d 519, 519-520; see also, Pagano v Kingsbury, 182 A.D.2d 268). The proof submitted by the defendants in support of their motion for summary judgment established that the plaintiff Rocco Vignola, Jr., did not suffer a "serious injury" as that term is defined in Insurance Law § 5102 (d)
The unsworn report of Mr. Vignola's treating chiropractor failed to set forth any objective quantified evidence of the extent or degree of any limitation occasioned by that plaintiff's alleged injuries. The report of Mr. Vignola's orthopedist stated only that it was his "impression" that Mr. Vignola suffered a torn medial meniscus of the left knee. Moreover, there is no proof that a Magnetic Resonance Imaging (MRI) diagnostic test was ever performed to confirm this impression or that Mr. Vignola underwent arthroscopic surgery to correct the alleged condition ( see generally, Becker v. Coiro, 222 A.D.2d 543). Furthermore, although the report of the defendants' physician stated that Mr. Vignola "appeared to lack 10 to 15 degrees of terminal elevation" in his left shoulder, the report went on to state that Mr. Vignola had "full abduction" and "full extension". Indeed, the report concluded that Mr. Vignola "ha[d] no objective signs of ongoing disability as a result of [the] accident".
In light of this proof, the burden thus shifted to the plaintiffs to demonstrate the existence of a triable issue of fact ( see, Gaddy v. Eyler, 79 N.Y.2d 955). However, the plaintiffs failed to meet this burden with the submission of an affidavit from Mr. Vignola's chiropractor which merely consisted of conclusory assertions tailored to meet statutory requirements ( see, Almonacid v. Meltzer, 222 A.D.2d 631; Friedman v. U-Haul Truck Rental, 216 A.D.2d 266; Barrett v. Howland, 202 A.D.2d 383; Pagano v Kingsbury, 182 A.D.2d 268, supra). Accordingly, the defendants were entitled to summary judgment.
Bracken, J.P., O'Brien, Santucci and Friedmann, JJ., concur.
In support of their motion for summary judgment, the defendants submitted, inter alia, (1) an unsworn report from the injured plaintiff's chiropractor confirming a diagnosis of "cervical radiculitis", "rotator cuff syndrome", and a "left knee problem" warranting orthopedic examination, (2) an affirmation of their own physician, who examined Mr. Vignola nearly three years after the accident, stating that, although Mr. Vignola had "full abduction" and "full extension" with pain, Mr. Vignola "appeared to lack 10 to 15 degrees of terminal elevation" in his left shoulder, and external rotation was "-10 degrees compared to the other side", and (3) an unsworn report from Mr. Vignola's orthopedist, diagnosing his problem as "[l]eft shoulder impingement; left knee, torn medial meniscus" and recommending left knee arthroscopy based, inter alia, upon a "positive Jobe's test and adduction test" and a "positive Apley grind".
As this Court noted in Torres v. Micheletti ( 208 A.D.2d 519, 519-520): "Although it is well settled that a moving defendant may rely upon the unsworn reports of the plaintiff's own physicians in support of a motion for summary judgment ( see, Hochlerin v. Tolins, 186 A.D.2d 538; Pagano v. Kingsbury, 182 A.D.2d 268), the reports relied upon here fail to demonstrate that the plaintiff had not suffered a serious injury ( see, Jackson v United Parcel Serv., 204 A.D.2d 605; Orsenigo v. Burnstein, 202 A.D.2d 561; see also, Brown v. Stark, 205 A.D.2d 725). Accordingly, the evidence submitted in support of the motion was insufficient to establish the defendants' entitlement to judgment as a matter of law ( see, Hochlerin v. Tolins, supra; Pagano v Kingsbury, supra)".
The description of Mr. Vignola's injuries contained in the defendants' motion papers, which included a diagnosis based upon objective tests, a recommendation of arthroscopic surgery based upon that diagnosis, and a quantified limitation of motion in Mr. Vignola's left shoulder, raised questions of fact as to whether those injuries constituted "serious injury" within the meaning of Insurance Law § 5102 (d) ( see, Stark v. Amadio, 239 A.D.2d 569; Sabella v. McKain, 239 A.D.2d 333; Fogliani v. Salvato, 205 A.D.2d 581; DeAngelo v. Fidel Corp. Servs., 171 A.D.2d 588).
The orthopedist's description of his observations as both a "diagnosis" and an "impression" does not render the diagnosis any less reliable. The term "diagnostic impression" is a term of art for a physician's opinion: diagnostic impressions are clearly admissible in a court of law ( Matter of Torsney [State Commr. of Mental Hygiene — Gold], 47 N.Y.2d 667, 678; People v. Liebman, 179 A.D.2d 245, 253). The fact that the diagnosis of Mr. Vignola's orthopedist was not confirmed by a Magnetic Resonance Imaging (MRI) test is not significant, since a physician's observations alone qualify as objective evidence ( see, Tompkins v. Burtnick, 236 A.D.2d 708).
Further, although the defendants' physician's report included only a partial acknowledgement that Mr. Vignola suffered injury to his left shoulder and contained a conclusory assertion of "no objective signs of ongoing disability", the law is well settled that, on a motion for summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion ( see, Gant v. Sparacino, 203 A.D.2d 515; Merlis v. Lupo, 108 A.D.2d 902). Accordingly, the acknowledgement by the defendants' doctor that Mr. Vignola did suffer a quantifiable limitation of range of motion was sufficient to raise a triable issue of fact ( see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
It is well settled that the failure of a proponent of a motion for summary judgment to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion, regardless of the sufficiency of the opposing papers ( see, Winegrad v. New York Univ. Med. Ctr., supra, at 853). Since the defendants' own motion papers raise a triable issue of fact, the plaintiffs were not required to come forward with any evidence.
In any event, the plaintiffs, in opposition, noted that the defendants' motion papers established that Mr. Vignola's claims of serious injury had a basis in fact. The plaintiffs also submitted an affidavit from Mr. Vignola's chiropractor confirming the allegations in the defendants' motion papers and referring specifically to the orthopedist's diagnosis.
In their reply affidavit, the defendants contended that, although they initially submitted the unsworn report of Mr. Vignola's orthopedist, neither the plaintiffs nor Mr. Vignola's chiropractor could rely on the orthopedist's report, because it was unsworn. This argument ignores the principles that the defendants bore the initial burden of establishing their entitlement to judgment as a matter of law, and, if they chose to submit any unsworn reports from Mr. Vignola's treating physicians, those reports had to establish that Mr. Vignola did not suffer a serious injury ( see, Torres v. Micheletti, 208 A.D.2d 519, supra). Moreover, once the defendants brought the orthopedist's report to the court's attention, they could not be heard to complain that the plaintiffs referred to that report in their opposition papers ( see, Pietrocola v. Battibulli, 238 A.D.2d 864).
Accordingly, I vote to affirm the order appealed from.