Alvarez v New York City Tr. Auth.

[*1] Alvarez v New York City Tr. Auth. 2009 NY Slip Op 51277(U) [24 Misc 3d 1206(A)] Decided on June 17, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 17, 2009
Supreme Court, Queens County

Nancy Alvarez, Plaintiff,

against

New York City Transit Authority, Defendant.



6273/07

Howard G. Lane, J.

Upon the foregoing papers it is ordered that this motion by defendant for summary judgment dismissing the complaint of plaintiff, Nancy Alvarez, pursuant to CPLR 3212, on the ground that plaintiff 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 October 29, 2006. Defendant has submitted proof in admissible form in support of the motion for summary judgment, for all categories of serious injury. The defendant submitted inter alia, affirmed reports from two independent examining physicians (an orthopedist and a neurologist) and plaintiff's ownverified bill of particulars.

In opposition to the motion, plaintiff submitted: an affirmation of plaintiff's radiologist, Mark Shapiro, M.D., an affirmation of plaintiff's radiologist, Russel S. Golkow, M.D.,

a notarized affidavit of plaintiff's chiropractor, Jeff Rosner, D.C., an attorney affirmation, 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, [*2]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 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 [3rd 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 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]).

[*3]DISCUSSION

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

The affirmed report of defendant's independent examining

orthopedist, Alan J. Zimmerman, M.D., indicates that an examination conducted on April 17, 2008 revealed a diagnosis of:

resolved status-post cervical and lumbar sprain/strains; resolved status-post right shoulder sprain; and resolved status-post left and right knee sprains. He opines that there is no need for orthopedic care or follow up and is not in need of testing, medical supplies, or treatments. He further opines that the knee, cervical and lumbar findings are degenerative, pre-existing and not causally related. Dr. Zimmerman concludes that the claimant has no disability or work restriction. Dr. Weiland concludes that there is no neurological disability or permanency related to the accident.

The affirmed report of defendant's independent examining neurologist, Sarasavani Jayaram, M.D., indicates that an examination conducted on April 17, 2008 revealed a diagnosis of

resolved closed head trauma and concussion and resolved cervical, thoracic and lumbar sprain/strains with the subjective symptoms not clinically correlated; diabetic neuropathy. He opines that the claimant needs no treatment form a neurological perspective. Dr. Jayaram concludes that there is no need for diagnostic testing, physical therapy, or supplies.

Additionally, defendant established a prima facie case for

the category of "90/180 days." The plaintiff'sverified bill of particulars indicates that she was not confined to the hospital and was only confined to bed for one (1) month immediately following the accident and intermittently thereafter. 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 defendant's 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 raises a triable issue of fact as to all

categories except for the category of "90/180-days"

In opposition to the motion, plaintiff submitted: an

affirmation of plaintiff's radiologist, Mark Shapiro, M.D., an affirmation of plaintiff's radiologist, Russel S. Golkow, M.D.,

a notarized affidavit of plaintiff's chiropractor, Jeff Rosner, D.C., an attorney affirmation, and plaintiff's own affidavit.



[*4]A medical affirmation or affidavit which is based upon a physician's personal examinations and observation of plaintiff, is an acceptable method to provide a doctor's opinion regrading

the existence and extent of a plaintiff's serious injury(O'Sullivan v. Atrium Bus Co., 246 AD2d 418, 688 NYS2d 167 (1st Dept. 1980). The causal connection must ordinarily be established by competent medical proof (see, Kociocek v. Chen, 283 AD2d 554 [2d Dept 2001]; Pommels v. Perez, 4 AD3d 101 [1st Dept 2004]). Plaintiff submitted medical proof that wascontemporaneous with the accident showing range of motion limitations and herniations of the cervical and lumbar spines (Pajda v. Pedone, 303 AD2d 729 [2d Dept 2003]). Plaintiff has

established a causal connection between the accident and the injuries. The affidavit submitted by plaintiff's treating chiropractor, Dr. Jeff Rosner, sets forth the objective examination, tests, and review of medical records which were performed contemporaneously with the accident to support his conclusion that the plaintiff suffered from significant injuries, to wit: "sprain strian derangement of the cervical spine, cervical subluxation complex, cervicobrachial radiculopathy, right upper extremity, sprain/strain derangement of the dorsal spine, dorsal subluxatation complex, sprain/strain derangemnt of the lumbar spine, lumbar subluxation complex,

lumbosacral radiculopathy. Dr. Rosner's affidavit details plaintiff's symptoms, including cervical and lumbar spine pain with radiation. Furthermore, plaintiff has provided a recent

medical examination detailing the statusof her injuries at the current point in time (Kauderer v. Penta, 261 AD2d 365 (2d Dept 1999). The affidavit of Dr. Rosner provides that a recent

examination by Dr. Rosner on February 3,2009 sets forth the objective examination, tests, and review of medical records which were performed to support his conclusion that the

plaintiff suffers from significant injuries, to wit: "loss of signal and cebntral herniations at C3-4 and C4-5; sprain/strain derangement of the cervical spine, cervical subluxation complex,

cervicobrachial radiculopathy, right upper extremity, loss of height and signal and right foraminal herniations with hypertrophic changes at L1-2 and L2-3, loss of height and signal

and central herniations with hypertophic changes at L3-4,L4-5 and L5-1 causing moderate central stenosis, sprain/strain derangement fo the dorsal spine, dorsal subluxation complex,

sprain/strain derangement of the lumbar spine, lumbar subluxation complex, lumbosacral radiculopathy. He further opines that the injuries are permanent in nature, result in a

permanent limitation in the plaintiff's range of motion and "that the motor vehicle accident of 10/29/06 was the competent producing cause of the exacerbation of the cervical spine and

lumbar spine pain and limitations." Clearly, the plaintiffs' experts' conclusions are not based solely on the plaintiff's subjective complaints of pain, and therefore are sufficient to

defeat the motion (DiLeo v. Blumber, supra , 250 AD2d 364, 672 NYS2d 319 [1st Dept 1998]).

However, 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 [*5]

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]).

Therefore, plaintiff's submissions are sufficient to raise a triable issue of fact except on the issue of "90/180-days." (see, Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Accordingly, the defendant's motion for summary is denied as to all categories except for the category of "90/180-days."

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.

The foregoing constitutes the decision and order of this Court.

Dated:June 17, 2009

Howard G. Lane, J.S.C.