Jimenez v Parker

[*1] Jimenez v Parker 2004 NY Slip Op 50210(U) Decided on March 26, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 26, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
NO. 2001-1445 Q C

CLAUDIA JIMENEZ, Respondent, -and- JESSENIA CLAUDIO, Appellant,

against

WOODROW PARKER, Respondent.

Appeal by plaintiff Jessenia Claudio from an order of the Civil Court, Queens County (M. Grays, J.), entered April 20, 2001, which granted plaintiff Claudia Jimenez's motion and defendant Parker's cross motion for summary judgment.

Order reversed without costs and plaintiff Jimenez's motion and defendant Parker's cross motion for summary judgment denied.

Plaintiff Jessenia Claudio was a passenger in a vehicle driven by Claudia Jimenez which collided with defendant Woodrow Parker's vehicle. Plaintiff Jimenez moved, and defendant Parker cross-moved, for summary judgment on the ground that plaintiff Claudio did not suffer a serious injury under Insurance Law § 5102 (d). The movants may rely on the unsworn medical reports of plaintiff Claudio's doctors in support of their motions (Pagano v Kingsbury, 182 AD2d 268 [1990]; see also Fragale v Geiger, 288 AD2d 431 [2001]). In the instant matter, the unsworn report of plaintiff Claudio's doctor submitted by the movants listed the tests he conducted which showed positive results and the specific numeric limitation of motion in her cervical and lumbar spines. This raises a triable issue of fact as to whether plaintiff Claudio suffered a serious injury under the No-Fault Law (Lombardi v Columbo, 259 AD2d 524 [1999]). Under the circumstances, it is not necessary to consider whether plaintiff Claudio's papers in opposition were sufficient to raise a triable issue of fact (Chaplin v Taylor, 273 AD2d 188 [2000]).

It is noted that even if the movants had made out a prima facie case establishing their entitlement to judgment as a matter of law, the opposition papers raised a triable
issue of fact. The affidavit of Claudio's chiropractor substantiated the claim of serious
injury by designating numeric percentages of plaintiff's loss of range of motion of her cervical and lumbar spines (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).

While there is a three year gap in treatment between plaintiff's last treatment and a later doctor's report this is not fatal to the plaintiff's action. The cases of Nemchyonok v Peng Liu Ying, 2 AD3d 421 [2003] and Francis v Christopher, 302 AD2d 425 [2003] are not to the contrary. In those cases there was no evidence offered regarding the short term treatment immediately after the accident as well as a three year gap in treatment. In the instant matter there was extensive chiropractic treatment and physical therapy for at least four months after the accident.

Pesce, P.J., and Rios, J. concur.

Patterson, J. dissents in a separate memorandum.

Patterson, J., dissents and votes to affirm the order in the following memorandum:

I would vote to affirm the court's order. Contrary to the majority opinion, I find that the movants' submissions established a prima facie showing that the injured plaintiff failed to sustain a serious injury as defined by Insurance Law § 5102(d). The movants established that two weeks after the accident Ms. Jimenez, according to her doctor, Dr. Gordon Davis, was merely suffering from sprains of the cervical and lumbar spine. Dr. Davis recommended some physical therapy, a CT-Scan of the head and prescribed Motrin. There is no evidence of the plaintiff seeking any further medical treatment. Although the plaintiff submitted a Statement of Account from Metro Medical PC, which reflects a series of dates in 1996 and 1997 purportedly for medical treatment, she fails to create a nexus between these alleged dates of treatment and the accident. Moreover, the Statement fails to establish what, if any, treatment was rendered. Even assuming that treatment was rendered, there is no evidence that it was for a condition related to this accident. Finally, there was a gap of nearly four years between the termination of plaintiff's initial course of treatment and the examinations conducted in November 2000 which were conducted in response to this summary judgment motion (see Ceruto v Abernathy, 285 AD2d 386 [2001]). While there is objective evidence indicating the degrees of physical limitation to plaintiff's cervical and lumbar spines, there is an unexplained significant gap between the treatments immediately after the accident in 1996 and her subsequent examination by a
chiropractor several years later (Francis v Christopher, 302 AD2d 425 [2003]; see also Nemchyonok v Peng Liu Ying, 2 AD3d 421 [2003]). Based upon this unexplained gap in treatment, the motion for summary judgment was properly granted.
Decision Date: March 26, 2004