Thomas v Holman
Annotate this CaseDecided on May 15, 2009
Civil Court of the City of New York, Queens County
Maverly Thomas, Plaintiff,
against
Patricia Y. Holman and Otis Eugene Holman, Defendants,
300281QTS/06
Chereé A. Buggs, J.
Defendants filed a motion for summary judgment pursuant to Civil Practice Law and Rules (CPLR) §3212 on grounds that plaintiff failed to substantiate a claim of "serious injury" under Insurance Law §§5102 and 5104. Upon full review of the motion, opposition and reply papers and supporting documents, the defendants' motion is granted in its entirety.
Plaintiff brought suit in 2002 for injuries suffered in a vehicular accident on December 30, 1999 on 230th Place and 138th Avenue in the County of Queens. Plaintiff alleges that her injuries, which include but are not limited to shock, multiple contusions, abrasions, ecchymosis, soft tissue damage, rotator cuff impingement, tendinosis, bulging and herniated discs, various radiculopathies, damage to muscles, nerves and tendons, pain and restriction of movement are "serious" as defined by the Insurance Law.
In their motion for summary judgment, the defendants met their prima facie burden
of establishing that the plaintiff did not sustain a serious injury within the meaning of the
Insurance Law. Where the moving party has demonstrated its entitlement to summary judgment,
the party opposing the motion must demonstrate by admissible evidence the existence of a
factual issue requiring a trial of the action. (See Zuckerman v. City of New York, 49
NY2d 557, 404 NE2d 718
427 NYS2d 595 [1980]).
In opposition, plaintiff annexed the affirmed report of Leo Batash, M.D., who stated
that he first treated plaintiff on January 15, 2000, and conducted follow-up evaluations on
February 2, March 29 and April 26, 2000. His next examination of the plaintiff was on March
16, 2009, at which time he stated plaintiff complained of persistent neck pain radiating to the
right side, persistent right shoulder pain upon active utilization, and constant lower back pain.
However, Dr. Batash's 2009 affirmed report relied largely upon unsworn diagnostic reports
performed in 2000 in reaching a [*2]conclusion that the plaintiff
has a "disability" that is "partial" and "permanent." The unsworn reports are also annexed to
plaintiff's papers as exhibits. It is well-settled that unaffirmed reports and uncertified medical
records are without probative value (see Magid v Lincoln Service Corp., ___ NYS2d
___, 60 AD3d 1008 [2d Dept 2009]; Rodriguez v Cesar, 40 AD3d 731, 835 NYS2d 438 [2d Dept
2007]; Malave v Basikov, 45 AD3d
539, 845 NYS2d 415 [2d Dept 2007]; Grasso v Angerami, 79 NY2d 813, 588 NE2d
76, 580 NYS2d 178 [1991]), and that a doctor's affirmation relying upon the unsworn reports of
others in reaching a conclusion is likewise without probative value (see Magid
___NYS2d at ___ ; Uribe-Zapata v
Capallan, 54 AD3d 936, 864 NYS2d 118 [2d Dept 2008]; Furrs v Griffith, 43 AD3d 389,
841 NYS2d 594 [2d Dept 2007]).
Further, neither Dr. Batash nor the plaintiff addressed the considerable gap in treatment from the doctor's last examination of the plaintiff on April 26, 2000 to the next examination date of March 16, 2009. There is no indication in the plaintiff's papers that she was receiving treatment of any kind for her alleged injuries during that nine-year period. The failure to explain a gap in medical treatment has consistently been a basis for finding a plaintiff's opposition to summary judgment insufficient to raise a triable issue of fact (see Ponciana v Schaefer, 59 AD3d 605, 873 NYS2d 212 [2d Dept 2009]; Pommells v Perez, 4 NY3d 566, 797 NYS2d 380, 830 NE2d 278 [2005]; Grant v Fofana, 10 AD2d 446, 781 NYS2d 160 [2d Dept 2004]; Smith v Askew, 264 AD2d 834, 695 NYS2d 405 [2d Dept 1999]).
Plaintiff argues that "in deciding a summary judgment motion, the evidence must be construed in a light most favorable to the party opposing the motion" (see Rudnitsky v Robbins, 191 AD2d 488, 594 NYS2d 354 [2d Dept 1993]; Benincasa v Garrubbo, 141 AD2d 636, 529 NYS2d 797 [2d Dept 1988]). However, even after according the plaintiff "the benefit of every reasonable inference" in this matter (see Negri v. Stop and Shop, Inc., 65 NY2d 625, 491 NYS2d 151 [1985]), she has failed to demonstrate by admissible evidence that a factual issue exists requiring a trial, and has offered no excuse for such failure (see Zuckerman, 49 NY2d 557at 562, 404 NE2d 718 at 721, 427 NYS2d 595 at598). Accordingly, the defendants' motion for summary judgment pursuant to CPLR §3212 is granted in its entirety.
The foregoing constitutes the Order and Decision of this Court.
Dated: May 15, 2009______________________________CHEREÉ A.
BUGGS
Judge, Civil Court of the City of New York
County of Queens
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