Reyes v Chronometron Cab Corp.

[*1] Reyes v Chronometron Cab Corp. 2008 NY Slip Op 52425(U) [21 Misc 3d 1139(A)] Decided on November 14, 2008 Supreme Court, Queens County Lane, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2008
Supreme Court, Queens County

Zoraida Reyes and Andres Hernandez, Plaintiffs,

against

Chronometron Cab Corp. and Marco Ramos, Defendants.



18770/06



For Plaintiffs:

Stillman & Stillman, LLP

2622 East Tremont Avenue

Bronx, New York 10461

by: Robert Birnbaum, Esq.

For Defendants:

Baker, McEvoy, Morrissey, Moskovi

330 West 34th Street, 7th Floor

New York, New York 10001

by: Cynthia Hung, Esq.

Howard G. Lane, J.

It is ordered that the branch of the motion by defendants, Chronometron Cab Corp. and Marco Ramos for summary judgment dismissing the complaint of plaintiff, Zoraida Reyes pursuant to CPLR 3212, on the ground that plaintiff, Zoraida Reyes has not sustained a serious injury within the meaning of the Insurance Law 5102(d)is decided as follows:

I. Defendants' motion for summary judgment against plaintiff Zoraida Reyes

[*2]

This action arises out of an automobile accident that occurred on December 23, 2005. Defendants have submitted proof in admissible form in support of the motion for summary judgment, for all categories of serious injury. The defendants submitted inter alia, affirmed reports from three independent examining and/or evaluating physicians (a neurologist, an orthopedist, and a radiologist), as well as plaintiff, Zoraida Reyes' verified bill of particulars which indicates that she was only confined to home for less than three (3) weeks and that she was unable to attend employment for less than three (3) weeks, and plaintiff, Zoraida Reyes' own examination before trial transcript testimony which indicates that she was not confined to her bed following the accident and was only confined to her home for one (1) week following the accident.

In opposition to the motion, plaintiff Zoraida Reyes

submitted: a notarized affidavit of plaintiff's chiropractor, Rafael A. Vargas, DC, an unsworn report of plaintiff's radiologist, Samuel Mayerfield, M.D., an unsworn narrative report of plaintiff's neurologist, Alexander Alperovich, M.D., an unsworn narrative report of plaintiff's orthopedic surgeon, Eial Faierman, M.D., unsworn no-fault records, an unsworn MRI report of plaintiff's radiologist, Sidney David Bogart, M.D., unsworn and uncertified medical records and reports, an attorney's affirmation, plaintiff's own examination before trial transcript testimony, and plaintiff's own affidavit.

APPLICABLE LAW



Under the "no-fault" law, in order to maintain an action for

personal injury, a plaintiff must establish that a "serious injury" has been sustained (Licari v. Elliot, 57 NY2d 230 [1982]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York Univ. Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]). In the present action, the burden rests on defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury." (Lowe v. Bennett, 122 AD2d 728, 511 NYS2d 603 [1st Dept 1986], affd, 69 NY2d 701, 512 NYS2d 364 [1986]). When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury (Licari [*3]v. Elliot, supra ; Lopez v. Senatore, 65 NY2d 1017, 494 NYS2d 101 [1985]).

In support of a claim that plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physician or the unsworn reports of plaintiff's examining physician (Pagano v. Kingsbury, 182 AD2d 268, 587 NYS2d 692 [2d Dept 1992]). Once the burden shifts, it is incumbent upon plaintiff, in opposition to defendant's motion, to submit proof of serious injury in "admissible form". Unsworn reports of plaintiff's examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment (Grasso v. Angerami, 79 NY2d 813, 580 NYS2d 178 [1991]). Thus, a medical affirmation or affidavit which is based on a physician's personal examination and observations of plaintiff, is an acceptable method to provide a doctor's opinion regarding the existence and extent of a plaintiff's serious injury (O'Sullivan v. Atrium Bus Co., 246 AD2d 418, 668 NYS2d 167 [1st Dept 1998]). Unsworn MRI reports are not competent evidence unless both sides rely on those reports (Gonzalez v. Vasquez, 301 AD2d 438 [1st Dept 2003]; Ayzen v. Melendez, 299 AD2d 381 [2d Dept 2002]). However, in order to be sufficient to establish a prima facie case of serious physical injury the affirmation or affidavit must contain medical findings, which are based on the physician's own examination, tests and observations and review of the record rather than manifesting only the plaintiff's subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the CPLR to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice (see, CPLR 2106; Pichardo v. Blum, 267 AD2d 441, 700 NYS2d 863 [2d Dept 1999]; Feintuch v. Grella, 209 AD2d 377, 619 NYS2d 593 [2d Dept 2003]).

In any event, the findings, which must be submitted in a competent statement under oath (or affirmation, when permitted) must demonstrate that plaintiff sustained at least one of the categories of "serious injury" as enumerated in Insurance Law § 5102(d) (Marquez v. New York City Transit Authority, 259 AD2d 261, 686 NYS2d 18 [1st Dept 1999]; Tompkins v. Budnick, 236 AD2d 708, 652 NYS2d 911 [3d Dept 1997]; Parker v. DeFontaine, 231 AD2d 412, 647 NYS2d 189 [1st Dept 1996]; DiLeo v. Blumberg, 250 AD2d 364, 672 NYS2d 319 [1st Dept 1998]). For example, in Parker, supra , it was held that a medical affidavit, which demonstrated that the plaintiff's threshold motion limitations were objectively measured and observed by the physician, was sufficient to establish that plaintiff has suffered a "serious injury" within the meaning of that term as set forth in Article [*4]51 of the Insurance Law. In other words, "[a] physician's observation as to actual limitations qualifies as objective evidence since it is based on the physician's own examinations." Furthermore, in the absence of objective medical evidence in admissible form of serious injury, plaintiff's self-serving affidavit is insufficient to raise a triable issue of fact (Fisher v. Williams, 289 AD2d 288 [2d Dept 2001]).

DISCUSSION

A. Defendants established a prima facie case that plaintiff Zoraida Reyes did not suffer a "serious injury" as defined in Section 5102(d), for all categories.

The affirmed report of defendants' independent examining

neurologist, Guoping Zhou, M.D., indicates that an examination conducted on August 28, 2007 revealed a diagnosis of resolved cervical, lumbar, and thoracic sprain/strain. He opines that there is no disability from a neurological point of view and no permanency. Dr. Zhou concludes that there is no need for further neurological treatment or physical therapy, and that claimant can perform her normal activities of daily living, without restriction.

The affirmed report of defendants' independent examining orthopedist, Michael P. Rafiy, M.D. indicates that an examination conducted on August 27, 2008 revealed a diagnosis of resolved cervical and lumbar sprain/strain and resolved bilateral shoulder sprain. He opines that there is no orthopedic disability and and no permanency. Dr. Rafiy concludes that there is no need for further orthopedic treatment or physical therapy and that plaintiff can continue her normal activities of daily living, including work, without restriction.

The affirmed radiology report of defendants' independent examining radiologist Audrey Eisenstadt, M.D. indicates that an MRI of the cervical spine taken on January 17, 2006 revealed evidence of degenerative disc disease. She opines that the drying out and loss of disc substance is pre-existing. Dr. Eisenstadt concludes that there are "[n]o post-traumatic changes attributable to the accident" in question.

Additionally, defendants established a prima facie case for

the category of "90/180 days." The plaintiff, Zoraida Reyes' verified bill of particulars indicates that she was only confined to home for less than three (3) weeks and was unable to attend employment for less than three (3) weeks; and plaintiff, Zoraida [*5]Reyes' own examination before trial transcript testimony indicates that plaintiff was not confined to her bed following the accident, and was only confined to her home for one (1) week following the accident. Such evidence shows that the plaintiff was not curtailed from nearly all activities for the bare minimum of 90/180, required by the statute.

The aforementioned evidence amply satisfied defendants' initial burden of demonstrating that plaintiff did not sustain a "serious injury." Thus, the burden then shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law (see, Gaddy v. Eyler, 79 NY2d 955 [1992]). Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint (see, Licari v. Elliott, supra ).

B. Plaintiff, Zoraida Reyes fails to raise a triable issue

of fact

In opposition to the motion, plaintiff Zoraida Reyes

submitted: a notarized affidavit of plaintiff's chiropractor, Rafael A. Vargas, DC, an unsworn report of plaintiff's radiologist, Samuel Mayerfield, M.D., an unsworn narrative report of plaintiff's neurologist, Alexander Alperovich, M.D., an unsworn narrative report of plaintiff's orthopedic surgeon, Eial Faierman, M.D., unsworn no-fault records, an unsworn MRI report of plaintiff's radiologist, Sidney David Bogart, M.D., unsworn and uncertified medical records and reports, an attorney's affirmation, plaintiff's own examination before trial transcript testimony, and plaintiff's own affidavit.

Medical records and reports by examining and treating doctors that are not sworn to or affirmed under penalties of perjury are not evidentiary proof in admissible form, and are therefore not competent and inadmissible (see, Pagano v. Kingsbury, 182 AD2d 268 [2d Dept 1992]). Therefore, unsworn reports of plaintiff's examining and treating doctors will not be sufficient to defeat a motion for summary judgment (see, Grasso v. Angerami, 79 NY2d 813, 580 NYS2d 178 [1991]).

Additionally, in his affidavit, Dr. Vargas states that his opinions stated in the affidavit are based in part on MRI's, medical records, and medical reports of other doctors; however, no MRI reports or medical records of other doctors have been submitted to the court in competent and admissible form. The probative value of Dr. Vargas's affidavit, including any opinions [*6]he rendered on pre-existing or degenerative conditions, is reduced by the doctor's reliance on MRI's, medical reports and records that are not in the record before the court. Since Dr. Vargas' conclusions improperly rested on other experts' work product, it is insufficient to raise a material triable factual issue (see, Constantinou v. Surinder, 8 AD3d 323, [2d Dept 2004], Claude v. Clements, 301 AD2d 432 [2d Dept 2003]; Dominguez-Gionta v. Smith, 306 AD2d 432 [2d Dept 2003]).

Also, the plaintiff has failed to come forward with sufficient evidence to create an issue of fact as to whether the plaintiff sustained a medically-determined injury which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying accident (Savatarre v. Barnathan, 280 AD2d 537 [2d Dept 2001]). The record must contain objective or credible evidence to support the plaintiff's claim that the injury prevented plaintiff from performing substantially all of her customary activities (Watt v. Eastern Investigative Bureau, Inc., 273 AD2d 226 [2d Dept 2000]). 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 her usual activities to a great extent, rather than some slight curtailment (see, Gaddy v. Eyler, 79 NY2d 955, Licari v. Elliott, 57 NY2d 230 [1982]; Berk v. Lopez, 278 AD2d 156 [1st Dept 2000], lv denied

96 NY2d 708 [2001]). Plaintiff fails to include experts' reports or affirmations which render an opinion on the effect the injuries claimed may have had on the plaintiff for the 180-day period immediately following the accident. As such, plaintiff's submissions were insufficient to establish a triable issue of fact as to whether plaintiff suffered from a medically determined injury that curtailed her from performing her usual activities for the statutory period (Licari v. Elliott, 57 NY2d 230, 236 [1982]). Accordingly, plaintiff's claim that her injuries prevented her from performing substantially all of the material acts constituting her customary daily activities during at least 90 of the first 180 days following the accident is insufficient to raise a triable issue of fact (see, Graham v. Shuttle Bay, 281 AD2d 372 [1st Dept 2001]; Hernandez v. Cerda, 271 AD2d 569 [2d Dept 2000]; Ocasio v. Henry, 276 AD2d 611 [2d Dept 2000]).

Furthermore, plaintiff's attorney's affirmation is not admissible probative evidence on medical issues, as plaintiff's attorney has failed to demonstrate personal knowledge of the plaintiff's injuries (Sloan v. Schoen, 251 AD2d 319 [2d Dept 1998]). [*7]

Moreover, plaintiff's self-serving affidavit and deposition statements are "entitled to little weight" and are insufficient to raise triable issues of fact (see, Zoldas v Louise Cab Corp., 108 AD2d 378, 383 [1st Dept 1985]; Fisher v. Williams, 289 AD2d 288 [2d Dept 2001]).

Therefore, plaintiff's submissions are insufficient to raise a triable issue of fact (see, Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Accordingly, the defendants' motion for summary judgment against plaintiff Zoraida Reyes is granted in its entirety and the plaintiff, Zoraida Reyes' complaint is dismissed as to all categories.

The clerk is directed to enter judgment accordingly.

Movant shall serve a copy of this order with Notice of Entry upon the other parties of this action and on the clerk. If this order requires the clerk to perform a function, movant is directed to serve a copy upon the appropriate clerk.

IIDefendants' motion for summary judgment against plaintiff Andres Hernandez

That branch of the motion by defendants, Chronometron Cab Corp. and Marco Ramos for summary judgment dismissing the complaint of plaintiff, Andres Hernandez pursuant to CPLR 3212, on the ground that plaintiff, Andres Hernandez has not sustained a serious injury within the meaning of the Insurance Law 5102(d)is decided as follows:

This action arises out of an automobile accident that occurred on December 23, 2005. Defendants have submitted proof in admissible form in support of the motion for summary judgment, for all categories of serious injury. The defendants submitted inter alia, affirmed reports from three independent examining and/or evaluating physicians (a neurologist, an orthopedist, and a radiologist), as well as plaintiff, Andres Hernandez's verified bill of particulars which indicates that he was only confined to home for less than three (3) weeks and that he was unable to attend employment for less than three (3) weeks, and plaintiff, Andres Hernandez's own examination before trial transcript testimony which indicates that he was not confined to his bed following the accident and was not confined to his home following the accident.

In opposition to the motion, plaintiff Andres Hernandez [*8]

submitted: a notarized affidavit of plaintiff's chiropractor, Rafael A. Vargas, DC, an unsworn report of plaintiff's radiologist, Robert Diamond, M.D., an unsworn narrative report of plaintiff's neurologist, Alexander Alperovich, M.D., unsworn no-fault records, an unsworn MRI report of plaintiff's radiologist, Sidney David Bogart, M.D., unsworn and uncertified medical records and reports, an attorney's affirmation, plaintiff's own examination before trial transcript testimony, and plaintiff's own affidavit.

DISCUSSION

A. Defendant established a prima facie case that plaintiff, Andres Hernandez did not suffer a "serious injury" as defined in Section 5102(d), for all categories.

The affirmed report of defendants' independent examining

neurologist, Guoping Zhou, M.D., indicates that an examination conducted on August 28, 2007 revealed a diagnosis of resolved cervical, lumbar, and thoracic sprain/strain. He opines that there is no disability from a neurological point of view and no permanency. Dr. Zhou concludes that there is no need for further neurological treatment or physical therapy, and that claimant can perform his normal activities of daily living, including work, without restriction.

The affirmed report of defendants' independent examining orthopedist, Michael P. Rafiy, M.D. indicates that an examination conducted on August 27, 2008 revealed a diagnosis of resolved cervical and lumbar sprain/strain and resolved bilateral shoulder sprain. He opines that there is no orthopedic disability andno permanency. Dr. Rafiy concludes that there is no need for further orthopedic treatment or physical therapy and that plaintiff can continue his normal activities of daily living, including work, without restriction.

The affirmed radiology report of defendants' independent examining radiologist Audrey Eisenstadt, M.D. indicates that an MRI of the lumbar spine taken on January 16, 2006 revealed evidence of degenerative disc disease in the lower lumbar spine. She opines that the drying out or loss of disc substance is pre-existing. Dr. Eisenstadt concludes that there are "[n]o post-traumatic changes are seen."

Additionally, defendants established a prima facie case for the category of "90/180 days." The plaintiff, Andres Hernandez's verified bill of particulars indicates that he was only confined to home for less than three (3) weeks and was unable to attend [*9]employment for less than three (3) weeks. Additionally, plaintiff, Andres Hernandez's own examination before trial transcript testimony indicates that he was not confined to his bed following the accident and that he was not confined to his home following the accident. Such evidence shows that the plaintiff was not curtailed from nearly all activities for the bare minimum of 90/180, required by the statute.

The aforementioned evidence amply satisfied defendants' initial burden of demonstrating that plaintiff did not sustain a "serious injury." Thus, the burden then shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law (see, Gaddy v. Eyler, 79 NY2d 955 [1992]). Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint (see, Licari v. Elliott, supra ).

B. Plaintiff, Andres Hernandez fails to raise a triable issue of fact

In opposition to the motion, plaintiff Andres Hernandez

submitted: a notarized affidavit of plaintiff's chiropractor, Rafael A. Vargas, DC, an unsworn report of plaintiff's radiologist, Robert Diamond, M.D., an unsworn narrative report of plaintiff's neurologist, Alexander Alperovich, M.D., unsworn no-fault records, an unsworn MRI report of plaintiff's radiologist, Sidney David Bogart, M.D., unsworn and uncertified medical records and reports, an attorney's affirmation, plaintiff's own examination before trial transcript testimony, and plaintiff's own affidavit.

Medical records and reports by examining and treating doctors that are not sworn to or affirmed under penalties of perjury are not evidentiary proof in admissible form, and are therefore not competent and inadmissible (see, Pagano v. Kingsbury, 182 AD2d 268 [2d Dept 1992]). Therefore, unsworn records of plaintiff's examining and treating doctors will not be sufficient to defeat a motion for summary judgment (see, Grasso v. Angerami, 79 NY2d 813, 580 NYS2d 178 [1991]).

Additionally, in his affidavit, Dr. Vargas states that his opinions stated in the affidavit are based in part on MRI's, medical records, and medical reports of other doctors; however, no MRI reports or medical records of other doctors have been submitted to the court in competent and admissible form. The probative value of Dr. Vargas' affidavit, including any opinions he rendered on pre-existing or degenerative conditions, is [*10]reduced by the doctor's reliance on MRI's, medical reports and records that are not in the record before the court. Since Dr. Vargas' conclusions improperly rested on other experts' work product, it is insufficient to raise a material triable factual issue(see, Constantinou v. Surinder, 8 AD3d 323, [2d Dept 2004], Claude v. Clements, 301 AD2d 432 [2d Dept 2003]; Dominguez-Gionta v. Smith, 306 AD2d 432 [2d Dept 2003]).

Also, the plaintiff, Andres Hernandez has failed to come forward with sufficient evidence to create an issue of fact as to whether the plaintiff sustained a medically-determined injury which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying accident (Savatarre v. Barnathan, 280 AD2d 537 [2d Dept 2001]). The record must contain objective or credible evidence to support the plaintiff's claim that the injury prevented plaintiff from performing substantially all of his customary activities (Watt v. Eastern Investigative Bureau, Inc., 273 AD2d 226 [2d Dept 2000]). 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 her usual activities to a great extent, rather than some slight curtailment (see, Gaddy v. Eyler, 79 NY2d 955, Licari v. Elliott, 57 NY2d 230 (1982); Berk v. Lopez, 278 AD2d 156 [1st Dept 2000], lv denied 96 NY2d 708 [2001]). Plaintiff fails to include experts' reports or affirmations which render an opinion on the effect the injuries claimed may have had on the plaintiff for the 180-day period immediately following the accident. As such, plaintiff's submissions were insufficient to establish a triable issue of fact as to whether plaintiff suffered from a medically determined injury that curtailed him from performing his usual activities for the statutory period (Licari v. Elliott, 57 NY2d 230, 236 [1982]). Accordingly, plaintiff's claim that his injuries prevented him from performing substantially all of the material acts constituting his customary daily activities during at least 90 of the first 180 days following the accident is insufficient to raise a triable issue of fact (see, Graham v Shuttle Bay, 281 AD2d 372 [1st Dept 2001]; Hernandez v. Cerda, 271 AD2d 569 [2d Dept 2000]; Ocasio v. Henry, 276 AD2d 611 [2d Dept 2000]).

Furthermore, plaintiff's attorney's affirmation is not admissible probative evidence on medical issues, as plaintiff's attorney has failed to demonstrate personal knowledge of the plaintiff's injuries (Sloan v. Schoen, 251 AD2d 319 [2d Dept 1998]). [*11]

Moreover, plaintiff's self-serving affidavit and deposition statements are "entitled to little weight" and are insufficient to raise triable issues of fact (see, Zoldas v Louise Cab Corp., 108 AD2d 378, 383 [1st Dept 1985]; Fisher v. Williams, 289 AD2d 288 [2d Dept 2001]).

Therefore, plaintiff, Andres Hernandez's submissions are insufficient to raise a triable issue of fact (see, Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Accordingly, the defendants' motion for summary judgment against plaintiff Andres Hernandez on the grounds that plaintiff has not sustained a serious injury within the meaning of the Insurance Law § 5102(d)is granted in its entirety and the plaintiff, Andres Hernandez's complaint is dismissed as to all categories.

The clerk is directed to enter judgment accordingly.

Movant shall serve a copy of this order with Notice of Entry upon the other parties of this action and on the clerk. If this order requires the clerk to perform a function, movant is directed to serve a copy upon the appropriate clerk.

That branch of plaintiff's motion on the counterclaim, Andres Hernandez's, cross motion for summary judgment pursuant to CPLR 3212 dismissing the counterclaim against him on liability grounds is hereby rendered moot.

This constitutes the decision and order of the Court.

Dated: November 14, 2008.........................

Howard G. Lane, J.S.C.