Torres v Shulem

[*1] Torres v Shulem 2009 NY Slip Op 52019(U) [25 Misc 3d 1210(A)] Decided on September 9, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2009
Supreme Court, Kings County

Juan Manuel Torres, Plaintiff,

against

Indig Shulem, ABC Lease & Rent, Inc., A Thru Z Motor Vehicle Services, Inc., Defendants.



41325/07



For Plaintiff:

Richard Kenny

777 Third Ave

New York, NY 10017

For Defendant:

Baker, McEvoy, Morrisey, Moskovits, PC

330 West 34th St, 7th floor

New York, NY 10001

Francois A. Rivera, J.

By notice of motion filed on December 18, 2008, under sequence number one, defendant Indig Shulem, and ABC Lease & Rent, Inc.(hereinafter movants), jointly moves pursuant to CPLR §3212 and Insurance Law §5102(d) for an order dismissing the complaint on the basis that plaintiff did not sustain a serious injury. Plaintiff Juan Manuel Torres (Torres) opposes the motion.

BACKGROUND

On November 8, 2007, Torres commenced this action for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. Issue was joined by the movants' verified answer, dated February 13, 2008.

Torres' complaint and bill of particulars allege the following facts. On March 31, 2005, at approximately 4:45 p.m., Indig Shulem (Shulem) was operating a 1999 Mercury vehicle owned by ABC Lease & Rent, Inc., and Torres was riding a bicycle near the intersection of Divison and Driggs Avenue in Kings County. At that time and location Shulem negligently backed up the vehicle to park in an open space behind him, and in the [*2]process struck Torres. As a result of the collision, Torres sustained various physical injuries to the left shoulder and a fracture to the fifth digit of his left hand.

MOTION PAPERS

The movants' motion papers consist of a memorandum of law, an affirmation of their counsel and five annexed exhibits. Exhibit A is the summons, the verified complaint and their verified answer with demand for a bill of particulars. Exhibit B is Torres' verified bill of particulars. Exhibit C is the affirmed narrative report of Dr. A. Robert Tantleff, a radiologist, pertaining to his review of an x-ray and Magnetic Resonance Imaging (MRI) of Torres. The MRI studies was conducted on May 5, 2005 and showed Torres' left shoulder.Exhibit D is the affirmed, narrative report Dr. Robert Israel, an orthopedic surgeon, who examined Torres on August 27, 2008. Exhibit E is Torres' deposition transcript conducted on July 28, 2008.

Torres' opposition papers consist of an affidavit of his counsel and five annexed exhibits. Exhibit A is Torres' Brooklyn Hospital Center records. Exhibit B is Torres' affidavit. Exhibit C is Dr. Richard J. Rizzuti's report of the MRI studies taken of Torres' left shoulder. Exhibit D contains the reports and affirmations of Dr. Joyce Goldenberg an examining physiatrist pertaining to his examination of Torres on February 5, 2009. Exhibit E is a Torres supplemental bill of particulars.

The movants submitted an affirmation of counsel in reply to Torres' opposition papers.

LAW AND APPLICATION

Insurance Law § 5102 (d) "Serious injury,"means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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.

In the context of a motion for summary judgment, "a defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined plaintiff and conclude that no objective medical findings support the plaintiff's claim" of serious injury (Shinn v. Catanzaro, 1 AD3d 195 at 197 [1st-Dept 2003]).

Once the defendant has established a prima facie case that the plaintiff did not sustain a "serious injury," the burden shifts to the plaintiff to "come forward with admissible proof to raise a triable issue of fact" (Napoli v Cunningham, 273 AD2d 366 [2-Dept 2000]).

Here the movants submit an affirmation of their counsel which demonstrates no

personal knowledge of the underlying facts of the accident. Although the affirming counsel [*3]states that Dr. Tantleff, a radiologist, reviewed an X-ray examination of the plaintiff's left hand, neither counsel nor Dr. Tantleff identify or authenticate the X-ray that they are referring to. Dr. Tantleff's one page affirmation does not state that he ordered an X-ray of Torres. Rather he states "X-ray examination of the Left Hand consisting of three views is submitted for review". He does not state who provided the X-ray, who conducted the X-ray and what indica of reliability the films contained to determine its authenticity. Neither the X-ray nor the affirmation of the radiologist who conducted the study is in evidence. Dr. Tantleff's expert opinion that there is no evidence of fracture of Torres' left hand is not based on competent medical evidence because the X-ray used has not been identified, authenticated or admitted in evidence. Dr. Tantleff's review of Torres' MRI film provided by All County does not cover the alleged fracture of Torres' left hand.

Dr. Israel Robert, defendant's expert orthopedic surgeon, examined Torres on August 27, 2008. In his affirmed report, he states that he did not review any of Torres' medical records. He conducted an orthopedic examination and found that Torres had normal and full range of motion in his left hand, arm and shoulder. He offered no opinion on the existence of a fracture in Torres' left hand.

To establish prima facie entitlement to judgment as a matter of law, a movant for summary judgment must come forward with evidentiary proof, in admissible form, demonstrating the absence of any triable issues of fact (Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901 [2-Dept 2008], citing, Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). The failure to make such showing requires the denial of the motion, regardless of the sufficiency of the opposing papers ((Martinez v 123-16 Liberty Ave. Realty Corp., supra, citing, Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]). Torres' complaint and bill of particulars allege a fracture to the fifth digit of his left hand. Such an injury meets the definition of serious injury under Insurance Law §5102(d). The opinion of Dr. Tantleff, defendant's radiology expert, is inadmissible and the opinion of Dr. Israel, is silent on whether Torres sustained such a fracture caused by the subject accident. By failing to show that Torres' did not sustain a fracture in his left hand defendants did not meet their burden (Napoli v Cunningham, 273 AD2d 366 [2-Dept 2000]).

Defendants' motion to dismiss the complaint is denied.

The foregoing constitutes the decision and order of this court.

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J.S.C.