Gomez v Miller

[*1] Gomez v Miller 2009 NY Slip Op 50603(U) [23 Misc 3d 1106(A)] Decided on March 31, 2009 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2009
Supreme Court, Kings County

Steven Gomez, Plaintiff,

against

Raymond Miller and SOUTHSIDE TRANSPORTATION, INC., Defendants.



7095/02



ATTORNEYS FOR PLAINTIFF

STEVEN GOMEZ

LITMAN & LITMAN, P.C.

299 BROADWAY, SUITE 220

NEW YORK, NEW YORK 10007

212-732-3710

ATTORNEYS FOR DEFENDANTS

RAYMOND MILLER and SOUTHSIDE TRANSPORATION, INC.

BAKER, MCEVOY, MORRISSEY & MOSCOVITZ PC

330 WEST 34TH STREET, 7TH FLOOR

NEW YORK, NEW YORK 10001

212-857-8230

Martin Schneier, J.

Defendants, Raymond A. Miller (Miller) and Southside Transportation, Inc. (Southside) move for summary judgment on the grounds that plaintiff Steven Gomez, cannot meet the "serious injury" threshold requirement mandated by Insurance Law Section 5102(d).

Background

Plaintiff alleges that he was injured on January 21, 2000, when the motor vehicle he was a passenger in, had an accident with a motor vehicle owned by Southside and operated by Miller.

Plaintiff, in the Bill of Particulars dated September 30, 2003, alleges in pertinent part: "11. PERSONAL INJURIES:Plaintiff's injuries to date include but are not limited to the following:

.HEADACHE

.NECK PAIN

.LOWER BACK PAIN" "14. Plaintiff was incapacitated from employment for approximately 6 days.""16. Plaintiff was employed by........as a plumber."

Dr. Alan David on August 6, 2004, on behalf of the defendants conducted a comprehensive neurological examination of the plaintiff. In his affirmation he affirms, in pertinent part, as follows:

"PRESENT COMPLAINTS: Mid and lowback pain"

"Cervical Spine": Range of Motion in Degrees.

"Lumbar Tests:

Forward Flexion: Negative

Hoover's Test:Negative" "Lumbar Spine: Range of Motion in Degrees.

Flexion Extension Lateral Flexion(R) Lateral Flexion(L) Rotation(R) Rotation (L)Claimant 90º 30º 30º 30º 30º 30º Normal 90º 30º 30º 30º 30º 30º "DISABILITY/ADL'S:There is no disability at this time"."DIAGNOSIS: Normal Neurological Examination."

Plaintiff submits in opposition to this motion only an alleged " PHYSICIAN'S AFFIRMATION" by Dr. Leonard Langman which states at the end thereof, "Affirmed on this[*2]day of January, 2009" and is, therefore, undated.

Dr. Leonard Langman examined the plaintiff at the request of plaintiff's law firm on December 4, 2008, nearly 9 years after this accident of January 21, 2000.

Dr. Leonard Langman's undated alleged PHYSICIAN'S AFFIRMATION' in pertinent part states as follows:

"At the present time his main problem is pain in the neck and lower back with intermittent radiation"

Dr. Leonard Langman does not in his PHYSICIAN'S AFFIRMATION: set forth any specific diagnoses of the injuries that plaintiff sustained in the accident.

There were no objective MRI's of plaintiff's neck or lower back.

Discussion

Insurance Law Section 5102 (d) provides, in pertinent part, that: "(d) "serious injury" means a personal injury which results in [a] .....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 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 eighty days immediately following the occurrence of the injury or impairment".

Defendants have the initial burden ofshowing that the plaintiff did not sustain a serious physical injury. The defendants can meet this burden by establishing that the plaintiff has a full range of motion and no disabilities or, by showing that the injuries are not causally related to the accident. If the Court finds that the defendants have met their initial burden, the burden shifts to the plaintiff to demonstrate that he sustained a serious injury within the meaning of the No-Fault Insurance Law (Gaddy v. Eyler, 79 NY2d 955, 957 [1992]; Staff v. Yshua, 59 AD3d 614 [2d Dept 2009]).

The degree or, seriousness, of an injury may be shown in one of two ways. First, "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury" (Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345,350 [2002]). However, the loss of range of motion must have an objective basis. Tests which are in part, dependant on a plaintiff's subjective complaints of pain, will not suffice (Toure, at 356). Second, "an expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system (Toure, at 350). Furthermore, in order to successfully oppose the motion, plaintiff must submit proof contemporaneous with the accident of any initial range of motion restrictions (Passarelle v. Burger, 278 AD2d 294, 294,[2d Dept 2000])

In support of their motion, defendants rely on the affirmation of

Dr. Alan David. Dr David affirms that the plaintiff has normal range of motion and no disabilities. This is sufficient to meet the defendants' initial burden of a prima facie showing that the plaintiff did not sustain a "serious injury" within the meaning of Insurance Law Section 5102 [*3](d) as a result of this motor vehicle accident.

In opposition, plaintiff relies only on the undated affirmation of

Dr. Leonard Langman. Dr. Langman examined plaintiff on December 4, 2008, nearly 9 years after the accident. Thus, the plaintiff failed to proffer any objective medical testing that was contemporaneous with the subject accident (Collado v. Satellite Solutions & Electronics of WNY, LLC 56 AD3d 411, 411 ([2d Dept, 2008]; Nemchyonok v. Peng Liu Ying; 2 AD3d 421 [2d Dept, 2003]). "Without admissible evidence of roughly contemporaneous range of motion limitations, the plaintiff could not have established the duration of the injuries required to raise a triable issue of fact as to whether he sustained a serious injury under the permanent consequential limitation or significant limitation of use categories of the no-fault statute" (Kuchero v. Tabachnikov, 54 AD3d 729, 730 [2d Dept 2008]).

Plaintiff"s attorneys also claim that plaintiff suffered a serious injury pursuant to Section 5102(d) of the Insurance Law due to his inability to perform "substantially all of the material acts which constitute such person's usual and customary activities" for not less than 90 of the 180 days immediately following the date of the accident. This claim must be supported by "competent medical evidence" (Ciordia v. Luchian, 54 AD3d 708 [2d Dept, 2008]). Since Dr. Langman's examination took place several years after the accident, it does not qualify as competent medical evidence regarding plaintiff's condition in the first 180 days immediately following the accident. In addition, the Bill of Particulars alleges that plaintiff was incapacitated from employment as a plumber for only 6 days.

Plaintiff's submissions are insufficient to raise a triable issue of fact.

Conclusion

Based on the foregoing, the defendant's motion for summary judgment is granted and the complaint is dismissed.

This constitutes the Decision and Order of the Court.

______________________

J.S.C.