Grasso v Raymond
Annotate this CaseDecided on March 31, 2005
Supreme Court, Suffolk County
Diana M. Grasso, Plaintiff,
against
Gloria M. Raymond, Defendant.
5374/03
Philip F. Alba, P.C., Atty for the Plaintiff
1250 Montauk Highway, West Islip NY 11795
Marcia M. Brin, Esq., Atty for the Defendant
898 Veterans Memorial Highway, Suite 320, Hauppauge NY 11788
Arthur G. Pitts, J.
ORDERED that defendant Gloria M. Raymond's motion for summary judgment, is granted under the circumstances presented herein. ( CPLR 3212; Insurance Law 5102 (d))
This action arose out of a motor vehicle accident that occurred on December 16, 2000 in which plaintiff Diana M. Grasso allegedly sustained a serious personal injury. As a basis of the instant motion, the defendant asserts that the plaintiff has not sustained such serious injury as defined by Insurance Law 5102 (d). [*2]
Said section provides in part that "serious injury means 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
Grasso v Raymond Index No. 5374/03 Page 2
a body function or system; or 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 ninety days during the one hundred and eighty days immediately following the occurrence of the injury or impairment." ( Insurance Law 5102 (d) ) In the context of the plaintiff's claims, the term "consequential" means important or significant ( Kordana v. Pomellito, 121 AD2d 783, 503 N.Y.S.2d 198 , 200 [ 3rd Dept. 1986] , App. Dis. 68 NY2d 848, 508 N.Y.S.2d 425) The term, "significant" as it appears in the statute has been defined as "something more than a minor limitation of use" and the term "substantially all" has been construed to mean "that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment"
( Licari v. Elliott, 57 NY2d 230, 455 N.Y.S.2d 570 [1982] )
On a motion for summary judgment to dismiss the complaint for failure to set forth a prima facie case of serious injury as defined by Insurance Law 5102 (d), the initial burden is on the defendant "to present evidence, in competent form, showing that the plaintiff has no cause of action" ( Rodriguez v. Goldstein, 182 AD2d 396, 582 N.Y.S.2d 395, 396 [ 1st Dept. 1992] ) . Once the defendant has met the burden, the plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. ( DeAngelo v. Fidel Corp. Services, Inc., 171 AD2d 588, 567 N.Y.S.2d 454, 455 [ 1st Dept. 1991] ). Such proof in order to be in a competent or admissible form, shall consist of affidavits or affirmations ( Pagano v. Kingsbury, 182 AD2d 268, 587 N.Y.S.2d 692
[2nd Dept. 1992] ). The proof must be viewed in a light most favorable to the non-moving party. ( Cammarere v. Villanova, 166 AD2d 760, 562 N.Y.S.2d 808, 810 [ 3rd Dept. 1990] ).
The plaintiff has alleged by way of her bill of particulars and supplemental bill of particulars that she has sustained the following injuries: Cervical myofascial derangement; post traumatic stress disorder; nightmares about getting into the accident; experienced chest pain; spasm of cervical paraspinal muscles, especially lower segment, upper traps and rhomboids; spurling's maneuver painful to the right; straightening of the cervical curvature compatible with reflex muscle spasm; C4/5 and C5/6 posterior annular subligamentous disc bulges; left maxillary sinusitic change present; inability to lift or hold child; inability to bend without pain causing discomfort and pain when placing child in car seat; inability to seat for any extended period of time causing severe pain; inability to sleep as a result of radiating pain in back, neck and [*3]shoulders.
Grasso v Raymond Index No. 5374/03 Page 3
The defendant in support of the instant motion has submitted the affirmed report of Vartkes Khachadurian, M.D. an orthopedic surgeon who conducted an examination of the plaintiff on April 2, 2004 and also had an opportunity to review relevant medical records. After such examination and review he diagnosed the plaintiff with having sustained as a result of the subject accident "post cervical and thoracic sprain, post traumatic resolved with no evidence of neuromotor deficit." He further concluded that "based upon the examination performed and clinical findings, the claimant has recovered from the injuries of 12/15/ 00 (sic) and there is no ongoing evidence of orthopedic disability related to the accident of 12/15/00 (sic)..... the claimant is capable of performing her usual work activities unrestricted. The claimant is capable of performing all of the activities of daily living without restriction." Accordingly, based upon the foregoing, the defendant has demonstrated, as a matter of law that the plaintiff has not sustained a serious injury. ( see Reeves v. Scopaz, 227 AD2d 606, 643 N.Y.S.2d 620 [ 2nd Dept. 1996] ; Horan v. Mirando, 221 AD2d 506, 633 N.Y.S.2d 402 [ 2nd Dept. 1995] )
In opposition thereto, the plaintiff has submitted an affirmation of Mike Pappas, D.O., a physiatrist, who after conducting an examination of the plaintiff on August 25, 2004 concluded that as a result of the subject accident she sustained a post-traumatic cervical myofascial derangement, post-traumatic thoracic myofascial derangement; post traumatic headache and traumatic posterior C4-C5 and C5-C6 subligamentous disc bulges, as well as decreased cervical range of motion. In evaluating the plaintiff's condition and in subsequently reaching his diagnosis, Dr. Pappas considered the un-affirmed MRI report of Robert Diamond, M.D. dated December 20, 2000, an un-affirmed report of Dr. Diamond dated December 28, 2000 regarding X-Rays taken of the plaintiff on December 21, 2000, an un-affirmed "initial physiatric evaluation"dated December 18, 2000 of Josephine Brawner, M.D., as well as various other un-affirmed medical records.
It is well settled that if an examining physician relied on unsworn medical reports and tests of other physicians in reaching his diagnosis and conclusions, the affidavit of the physician is insufficient to raise triable issues of fact requiring the denial of the defendant's motion for summary judgment. ( see Palasek v. Misita, 289 AD2d 313, 734 N.Y.S.2d 587 [ 2nd Dept, 2001] ) Although mere subjective complaints of pain alone, as well as medical opinions clearly based upon such complaints, are insufficient to raise a triable issue of fact " ( Barrett v. Howland, 202 AD2d 383, 608 N.Y.S.2d 681, 682 [2nd Dept. 1994] ) a finding by a medical expert that describes the qualitative nature of the plaintiff's limitations based on the normal function, purpose and use of the body part and attributes such limitations to the injuries sustained together with further medical evidence such as an MRI and observations of spasms during physical examination, is [*4]sufficient to
Grasso v Raymond Index No. 5374/03 Page 4
raise a triable issue of fact as to whether the plaintiff sustained a serious injury pursuant to Insurance Law 5102 (d). ( Toure v. Avis Rent a Car, 98 NY2d 345, 746 N.Y.S.2d 865 [2002] ) However, in the matter at bar, the plaintiff has failed to proffer any medical evidence other than Dr. Pappas' evaluation, which as stated above relies upon unsworn or un-affirmed reports of other physicians, as well as the plaintiff's subjective complaints.
Accordingly, based on the foregoing and the circumstances presented herein, the plaintiff has not raised an issue of fact as to whether she has sustained a serious injury as set forth in Insurance Law 5102 (d), and as such, the defendant's motion for summary judgment is granted.
Submit judgment. A copy of this decision shall accompany any proposed judgment submitted to the court.
J.S.C.
Clerk's Use Only: Final Disposition
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