Myles v Riley

[*1] Myles v Riley 2009 NY Slip Op 51458(U) [24 Misc 3d 1214(A)] Decided on March 13, 2009 Supreme Court, New York County Wooten, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2009
Supreme Court, New York County

Lorenzo Myles, Plaintiff,

against

Clarence Lee Riley and Juan R. Marte, Defendants.



111616/06



ATTORNEY FOR THE PLAINTIFF :

Firm : Lipsig Shapey Manus & Moverman

Address : 40 Fulton Street

New York, New York 10038

ATTORNEY FOR THE DEFENDANT JUAN R. RILEY :

Firm : Baker Mcevoy Morrissey & Moskowitz.

Address : 330 West 34th Street - 7th Flr

New York, New York 10001

ATTORNEY FOR THE DEFENDANT CLARENCE LEE RILEY :

Firm : Wollerstein & Futuran

Address : 59 Maiden Lane - 43rd Floor

New York, New York 10038

Paul Wooten, J.

Court order dated November 12, 2008 (Wooten, P.), granted defendants' motion for summary judgment on the issue of "serious injury". Plaintiff contends that such order may have failed to address matters of fact or law which may have changed the determination of the motion (see CPLR 2221[d][2]). Plaintiff now timely moves for reargument of said order. In opposition, defendants argue, inter alia, that plaintiff failed to submit defendants original summary judgment reply papers, which were crucial to their original opposition. The defendants' original reply papers are attached, to their opposition to this motion.

The Court granted plaintiff's motion to reargue, defendant's motion for summary judgment on the issue of serious injury pursuant to CPLR § 3212. Upon reargument, the Court's issued a new decision on March 13, 2009. The Court has decided, sua sponte, to reconsider plaintiff's motion to reargue. The Court has demonstrated that, in the court order dated March 13, 2008, the Court may have overlooked certain relevant facts or misapprehended a matter of fact or law which may have changed the determination of such order (see CPLR 2221[d][2]).The amended decision is as follows:

[*2]MEMORANDUM DECISION

On March 24, 2006 near the intersection of Fifth Avenue and West 139th Street, plaintiff, a 77 year old male, was struck by a motor vehicle owned and operated by the defendant Clarence B. Riley, whose vehicle struck a motor vehicle owned and operated by the defendant Juan R. Marte. Plaintiff was taken to Harlem Hospital, admitted and released on March 27, 2006. On August 18, 2006, plaintiff commenced this action to recover damages for alleged personal injuries suffered as a result of the subject accident. The parties have completed discovery and a note of issue was filed. Defendants now move for summary judgment pursuant to CPLR § 3212, alleging that plaintiff has failed to establish that he suffered a "serious injury" pursuant to Insurance Law § 5102 (d).

SERIOUS INJURY THRESHOLD

Pursuant to the Comprehensive Motor Vehicle Insurance Reparation Act of 1974 (now Insurance Law § 5101, et seq. - the "No Fault" statute), a party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the categories of "serious injury" as set forth in Insurance Law § 5102 (d) (Marquez v New York City Tr. Auth., 259 AD2d 261 [1st Dept 1999]; DiLeo v Blumberg, 672 NYS2d 319 250 AD2d 364 [1st Dept 1998]).

Insurance Law § 5102 (d) defines "serious injury" as, inter alia:

a personal injury which results in . . . significant disfigurement; . . . 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 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.

It is indisputable that four of the nine categories of serious physical injuries discussed by Insurance Law 5102 (d) are not applicable herein as there is no allegation of death, dismemberment, fracture or a loss of a fetus. Therefore, the court must determine if the plaintiffs' injuries constitute either: (1) permanent loss of use of a body organ, member, function or system; (2) a permanent consequential limitation of use of a body function or system; (3) a significant limitation of use of a body function or system; (4) significant disfigurement and (5) 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 90 days during the 180 days immediately following the occurrence of the injury or impairment. (See defendant's motion, plaintiffs' bill of particulars, exhibit c, paragraph 20)

Serious injury is a threshold issue, and thus, a necessary element of plaintiff's prima facie case (Licari v Elliott, 57 NY2d 230 [1982]; Toure v Harrison, 6 AD3d 270 [1st Dept 2004]; Insurance Law § 5104 [a]). This is in accord with the purpose of the "No-Fault" law, which was to " weed out frivolous claims and limit recovery to significant injuries'" (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]; Licari v Elliott, 57 NY2d 234 [1982]; Rubensccastro v Alfaro, 29 AD3d 436 [1st Dept 2006]).

In order to satisfy the statutory threshold, the plaintiff must submit competent objective [*3]medical evidence of his or her injuries, based on the performance of objective tests (Grossman v Wright, 268 AD2d 79} [2 Dept 2000]; Lopez v Senatore, 65 NY2d 1017, 1019 [1985]). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Scheer v Koubek, 70 NY2d 678, 679 [1987]).

A CT scan or MRI may constitute objective evidence to support subjective complaints (see Arjona v Calcano, 7 AD3d 279 [1st Dept 2004]; Lesser v Smart Cab Corp., 282 AD2d 406 [1st Dept 2001]). The plaintiff's medical submissions must show when the tests were performed, the objective nature of the tests, what the normal range of motion should be and whether the plaintiff' s limitations were significant (see Milazzo v Gesner, 33 AD3d 317 [1st Dept 2006]; Vasquez v Reluzco, 28 AD3d 365 [1st Dept 2006]).

With respect to the categories of significant limitation of use of a body function or system and permanent consequential limitation of use, " [w]hether a limitation of use or function is " significant'" or " consequential'" (i.e., important . . .) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part'" (Toure v Avis Rent A Car Sys., supra quoting Dufel v Green, supra ).

SUMMARY JUDGMENT STANDARD

The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the courts which may decide the issue on a motion for summary judgment (Perez v Rodriguez, 25 AD3d 506 [1st Dept 2006]). On a motion for summary judgment based upon a failure to sustain a serious injury, the defendants bear the initial burden of establishing the absence of a serious injury by tendering evidentiary proof in admissible form eliminating any material issues of fact from the case (Toure v Avis Rent A Car Sys., supra ; see also Gaddy v Eyler, supra ; Pirrelli v Long Is. R.R., 226 AD2d 166 [1st Dept 1996]).

Defendant may rely either on the sworn or affirmed statements of their examining physician, plaintiff's deposition testimony and plaintiff's unsworn physician's records (Fragale v Geiger, 288 AD2d 431 [2 Dept 2001]; Pagano v Kingsbury, 182 AD2d 268 [2d Dept 1992]). An affirmed physician's report demonstrating that plaintiff was not suffering from any disability or consequential injury resulting from the accident is sufficient to satisfy a defendant's burden of proof (see Gaddy v Eyler, supra ). In addition, the Courts have unanimously held that a party may not use an unsworn medical report prepared by the parties' own physician on a motion for summary judgment (See Grasso v Angerami, 79 NY2d 813 [1991]; Offman v Singh, 813 NY2d 56 [1 Dept 2006]). CPLR § 2106 requires a physician's statement be affirmed (or sworn) to be true under the penalties of perjury and CPLR § 4503 requires hospital medical records to be certified.

Once defendant has made such a showing, the burden shifts to the plaintiff to come forward with prima facie evidence, in admissible form, to rebut the presumption that there is no issue of fact as to the threshold question (see Pommells v Perez, 4 NY3d 566 [2005]; Gaddy v Eyler, supra ; Perez v Rodriguez, supra ). A medical affirmation or affidavit based on a physician's own examination, tests, and review of the record, can support the existence and extent of a plaintiff's serious injury (O'Sullivan v Atrium Bus Co., 246 AD2d 418 [1st Dept 1998]).

In deciding a summary judgment motion, the court must bear in mind that issue finding [*4]rather that issue determination is the key to summary judgment. (See Sillman v Twentieth Century Fox Film Corporation, 3 NY2d 395 [1957]). Furthermore, since summary judgment is a drastic remedy which deprives a litigant of her day in court, the evidence adduced on the motion must be liberally construed in the light most favorable to the opposing party. See Kesselman v Lever House Restaurant, 29 AD3d 302, [1st Dept 2006]; Goldman v Metropolitan Life insurance Company, 13 AD3d 289, [1st Dept 2004].

DISCUSSION

In support of the motion, defendants submit, inter alia, a copy of the pleadings, plaintiff's deposition testimony and the affirmed medical reports of Dr. Norman J. Sobol, a board certified neurologist, Dr. Michael P. Rafiy, a board certified orthopedic surgeon, Dr. Scott A. Springer, a board certified radiologist and Dr. Bryan G. Forley, a board certified plastic surgeon.

On August 23, 2007, Dr. Rafiy conducted a physical examination of plaintiff including range of motion testing on plaintiff's cervical spine and lumbar spine. Dr. Rafiy observed limitations of plaintiff's range of motion in both areas, however, he attributed these limitations to the plaintiff's age of 79 years (See Defendant's Motion, exhibit d, p 2-3). All of the defendants' Independent Medical Experts opined that the plaintiff suffered no disability, or redial or permanent injuries.

Dr. Foley examined the plaintiff on September 17, 2007.(See affirmed medical report of Dr. Foley, defendants' exhibit g, p 1-2.) Dr. Foley noted two areas of scarring. "Left forehead: 1.5 x 2.0 cm flat, non-tender scar within the left eyebrow; Superior right knee: 1.5 x 2.0 hyperpigmented scar; Inferior right knee: 2.5 x 3.0 cm flat, hyperpigmented scar" Dr. Foley concludes both scars are permanent. Plaintiff alleges that the scars are the result of the subject accident. Defendants' submitted two color photo of the scars as proof. Defendants' proffer they have establish prime facie that "a reasonable person would [not] view" the scars "as unattractive, objectionable, or as the subject of pity or scorn" (Manrique v Warshaw Woolen Associates, Inc., 297 AD2d 519, 526 [1st Dept 2002]; see also Aguilar v Hicks, 9 AD3d 318, 319 [1st Dept 2004]; Hutchinson v Beth Cab Corp., 207 AD2d 283 [1st Dept 1994]).

The defendant proffers that have met their burden of proof on the plaintiff' s 90/180-day claim. Defendants argue that plaintiff's bill of particulars (see plaintiff's motion, bill of particulars, exhibit c, paragraph 13), and deposition testimony, from the subject accident (exhibit h), which indicated that plaintiff was confined to bed and home intermittently after the accident, does not meet the 90/180-day standard for curtailment. Defendant claims that in the absence of contrary information, including defendant's medical evidence that plaintiff was not medically injured per the 90/180-day period, they need no other information to meet their burden of proof.

Based on the foregoing, defendants have submitted evidence in legally admissible form to meet their prima facie burden, entitling them to summary judgment and a finding that plaintiff has not sustained a "serious injury" within the meaning of Insurance Law § 5102 [d] , as to: (1) a permanent loss of use of a body organ, member, function, or system; (2) a significant limitation of use of a body function or system; (3) a permanent consequential limitation of use of a body function or system; (See, Gaddy v Eyler, supra ; Lowe v Bennett, 122 AD2d 728 [1st Dept 1986], Affd, 69 NY2d 700 [1 Dept 1986]). Thus, the burden shifts to plaintiff to produce evidentiary proof in admissible form in order to establish the existence of a serious injury (See Taynisha Baez v Imamally Rahamatali, 6 NY3d 868 [2006]; Franchini v Palmieri, 1 NY3d 536 [*5][2003]; Gaddy v Eyler , supra ; Shinn v Catanzaro, 1 AD3d 195 [1 Dept 2003]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Forrest v Jewish Guild for the Blind, 309 AD2d 546 [1st Dept 2003]).

In opposition,plaintiffsubmits his affidavit, the uncertified police accident report, the affirmed report of Dr. Arik Hausknecht, a board certified neurologist, the affirmation and MRI reports of Dr. Mark Shapiro, a board certified radiologist and various unaffirmed or uncertified medical reports and records. Police reports have consistently been held inadmissible where the information contained in the report came from witnesses not engaged in the police business in the course of which the memorandum was made"(Holliday v Hudson Armored Car & Courier Service, Inc., 753 NY2d 470 [1st Dept 2003]; Yeargans v Yeargans, 265 NY2d 563 [1st Dept 1965]).

As mentioned above unaffirmed or uncertified medical reports and records are inadmissible and will not be considered on a motion for summary judgment (Grasso v Angerami, supra ; Offman v Singh, supra ; CPLR § 2106)[FN1].

Plaintiff's alleged injury occurred on March 24, 2006. Plaintiff allegedly underwent various MRI examinations, hospital visits and pain and rehabilitative treatments. However, plaintiff's only admissible medical evidence is Dr. Hausknecht's affirmed report dated January 22, 2008 (plaintiff's affirmation in opposition, exhibit k.) and Dr. Shapiro's May 3, 2006, affirmed MRI reports of the lumbar and cervical spine and affirmed May 5, 2006 brain (See plaintiff's affirmation in opposition, exhibit m.).[FN2]

Dr. Shapiro's affirmed MRI's examinations occurred within five weeks after the subject accident. Dr. Shapiro's reports show, inter alia, disc herniations at L3-L4, L4-L5, L5-S1, C3-C4, C4-C5 and C5-C6, however, this proof "without additional objective medical evidence establishing that the accident resulted in significant physical limitations causally related to the accident, is not alone sufficient to establish a serious injury" (Pommels v Perez, supra ; Park v Champagne, 824 NYS2d 84, 86 [1 Dept 2006]).

Thus, the issue now before the Court is whether Dr. Hausknecht's medical examination of the plaintiff which was performed on January 22, 2008, one year and ten months after the subject accident, constitutes objective medical evidence performed contemporaneously with the occurrence of the accident , in order to substantiate plaintiff's claim of "serious injury" (Pommells v. Perez, supra )[FN3].[*6]

Dr. Hausknecht's medical report, dated January 22, 2008, does not clearly indicate when he first examined the plaintiff and indicates that the only objective tests performed on the plaintiff occurred at the examination on January 22, 2008, (one year and ten month after the accident)[FN4]. In addition, Dr. Hausknecht, is not plaintiff's treating physician, he examined the plaintiff only on two occasions, after the defendants' motion for summary was commenced and more than 22 months after the accident on January 22, 2008. Moreover, Dr. Hausknecht conducted his first objective tests on plaintiff, at the January 22, 2008 office visit. Hence, plaintiff cannot establish the competent, objective medical evidence necessary to establish that there is a causal connection between plaintiff's condition and the subject accident. (Pommells v Perez, supra , Guadalupe v Blondie Limo, Inc., 43 AD3d 669; 841 NYS2d 525, [1 Dept 2007] Vaughan v Baez, 305 AD2d 101 [1 Dept 2003]).

Plaintiff argues, inter alia, that defendants' neurologist and orthopedic surgeon failed to address plaintiff's positive MRI results. However, Dr. Springer's report adequately addressed these findings and attributed them to"mild generalized degenerative changes of the lumbar spine", (see Defendants' Motion, exhibit b, affirmed medical report of Dr. Springer, p. 1, Findings) and adds that " there is no true herniation or extrusion of disc material." ( See Id. p. 1, Summary.)

In addition, plaintiff's 90/180-day claim proof is insufficient. "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 his usual activities to a great extent, [*7]rather than some slight curtailment." (Thompson v Abbasi, 15 AD3d 95, 100-101 [1 Dept 2005]; See Gaddy v Eyler, 79 NY2d 955, 958 [1992], citing Licari v Elliott, 57 NY2d 230, 236 [1982], ) Plaintiff's bill of particulars, supported, by his deposition's proffered proof does not demonstrate that plaintiff suffered an injury which limited "substantially all" his daily activities for 90 of the 180 days immediately after the accident. (See Uddin v Cooper, 32 AD3d 270, 272 [2006], lv denied 8 NY3d 808 [2007]; Arrowood v Lowinger, 294 AD2d 315, 316-317 [2002] ). Nor does any of any of plaintiff's medical proof specify plaintiff's medical condition on how he is sufficiently limited during the 90/180-day to satisfy as medical proof. (See Gorden v Tibulcio, 50 AD3d 460, 463 [2008].) Thus, plaintiff's' admissible evidence, concerning the first six months after the subject accident, is insufficient to raise a triable issue of fact on plaintiff's 90/180-day claim. (See Morris v Ilay Cab Corp., - NYS2d , [1 Dept. 2009], 2009 NY Slip Op. 02668, 2009 WL 910847 and Insurance Law § 5102 [d] [5] )

As to the injuries sustained to plaintiff's brain, cervical and thoracic spine, plaintiff has not demonstrated by admissible or credible evidentiary proof, the existence of a triable issue of fact as to whether or not he sustained a "serious injury" as a result of the subject accident.

For these reasons and upon the foregoing papers, it is,

ORDERED that the defendants' motion for summary judgment is granted; and it is further,

ORDERED that the Clerk of the Court is directed to enter judgment in favor of the defendants the defendants shall serve a copy of this order with notice of entry, within 30 days.

This constitutes the Decision and Order of the Court.

Dated: March 13, 2009

Paul WootenJ.S.C.

Footnotes

Footnote 1:Plaintiff proffers in rearguement that allegedly defendants admit they relied upon all of plaintiff's medical records in this proceeding, and thus, they should be admissible. He proffers that in an unspecified place in the defendants' Memorandum of Law in Support, defendant claims to states " Based on a review of the medical records and reports exchanged by the plaintiff... " However, a parties Memorandum of Law submitted by Counsel is argument and not evidence and arguing innuendo, that the statement was made it is unsupported by defendant's admissible evidence.

Footnote 2:Dr. Shapiro's MRI reports, while all are affirmed some are also admissible because defendant's radiologist, Dr. Scott A. Springer, reviewed the reports and referred to them in his summarys and conclusions. (See defendants' motion, exhibit f, affirmed medical reports of Dr. Springer, each report, p. 2, Summary.) (See Navedo v Jaime, 32 AD3d 788, 822 NYS2d 43, [1 Dept 2004]; Brown v Achy, 9 AD3d 30 [1 Dept 2004]; Gonzalez v Vasquez, 301 AD2d 438 [1 Dept 2003]; Ayzen v Melendez, 299 AD2d 381 [1 Dept 2002]; Pietrocola v Battibulli, 238 AD2d 864, 656 NYS2d 559 [3 Dept 1997]).

Footnote 3:This Court is loathed to claim a "magic" cut off date for a contemporaneous examination (evidence) necessary for a physician to support their causation of their patient's injuries. However, the Appeal Courts have established a general two year time limit, under certain circumstances, as to what is reasonable time for a plaintiff's to establish by proper medical evidence their qualitative assessment to indicate serious injury in order to meet the contemporaneous evidence causation requirement.

For example, In Guadalupe v. Blondie Limo, Inc., 43 AD3d 669; 841 NYS2d 525, [1 Dept 2007] the Court wrote;

"Despite the positive MRI report, there were no objective findings immediately following the accident to demonstrate any initial range-of-motion restrictions on plaintiff's cervical and lumbar spine, or any detailed explanation for their omission (Thompson, 15 AD3d at 98). The quantitative range-of-motion assessment plaintiff did submit was made more than two years (Emphasis added) after the accident by a physician who examined her only on that one occasion (Emphasis added),(see Atkinson v Oliver, 36 AD3d 552 [2007])."

In Thompson v. Abbasi, 15 AD3d 95, at 98, 788 NYS2d 48 [1 Dept 2005], the First

Department also wrote,

"the key fact that this plaintiff waited over 2 1/2 years to uncover evidence of the limitations to his neck which he now claims meets the threshold. The proof gives us no way to determine that the July 2002 alleged limitation was occasioned by the November 1999 accident, as there is no proof of what plaintiff's post-accident limitations were, if any. By "post-accident" we mean limitations suffered within a reasonable time (Emphasis added)after the accident under all the relevant circumstances."

Also see Vaughan v Baez, 305 AD2d 101 [1 Dept 2003], the plaintiff cannot establish objective medical evidence to establish that there is a causal connection between plaintiff's condition and the accident, by physician, who was not the treating physician, saw the plaintiff only once (after the defendants motion for summary was commenced) and more than 2 years after the accident; compare Silva v Vizcarrondo, 31 AD3d 292 [1 Dept 2006] (plaintiff met "minimal standard" to substantiate her serious injury claim where her expert, who began treatment for her injuries shortly after the accident, and conducted six physical examinations within the period, made the quantified assessment 17 months after the accident).

Footnote 4:Dr. Hausknecht does not indicate when he first started treating the plaintiff and his report can only be concluded that treated him on the day of report, January 22, 2008. However, Dr. Hausknecht's references that plaintiff "visited" his office on October 3, 2006, (6 months after the accident) (See Dr. Arik Hausknecht's report dated January 22, 2008, page three, paragraph two, "Mr. Myles has shown no significant clinical improvement since our last visit together on 10/3/06.") However, Dr. Hausknecht's makes no other statement or reference to the October 3, 2006 visit. Nor does Dr. Hausknecht provide any medical records or perform any objective test or examination to support his claim. Moreover, his claim of " no significant clinical improvement" is not based upon an earlier objective test for injuries and thus, cannot be considered significant.