Byong Yol Yi v Canela

[*1] Byong Yol Yi v Canela 2009 NY Slip Op 52754(U) [26 Misc 3d 1228(A)] Decided on July 2, 2009 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2009
Supreme Court, Bronx County

BYONG YOL YI, Plaintiff

against

MATEO CANELA, Defendant



6860/2007



For Plaintiff

Kenneth T. Kerner Esq.

Kerner & Kerner

74 Trinity Place, New York, NY 10006

For Defendant

Andrew Keats Esq. and Colin F. Morrissey Esq.

Baker, McEvoy, Morrissey & Moskovits, P.C.

330 West 34th Street, New York, NY 10001

Lucy Billings, J.

I.BACKGROUND

Plaintiff sues to recover for personal injuries he sustained May 8, 2006, when a motor vehicle owned and operated by defendant collided with a motor vehicle plaintiff was operating. Defendant moves for summary judgment, C.P.L.R. § 3212(b), dismissing plaintiff's claims on the ground that plaintiff has not sustained a "serious injury" entitling him to recover for "non-economic loss." NY Ins. Law §§ 5102(d), 5104(a). Upon oral argument, and after attempts to settle the action, the court denies defendant's motion for the reasons explained below.

In sum, the court holds that, to establish plaintiff's lack of serious injury from a motor vehicle collision, defendant's physicians must address medical records indicating plaintiff did sustain a serious injury. Defendant's neurologist explains that records regarding plaintiff were unavailable when the neurologist examined plaintiff, raising the issue as to defendant's remedy when defendant has not obtained from plaintiff the evidence necessary to meet defendant's burden. Here, however, defendant does not make the showing necessary to afford her a remedy: that plaintiff's records were unavailable to defendant's physicians because plaintiff failed to produce requested records. In fact, plaintiff's chiropractor indicates plaintiff's records were available before the examinations by defendant's physicians. [*2]Without defendant's physicians addressing plaintiff's records or defendant explaining why plaintiff's records were unavailable to defendant's physicians, defendant fails to demonstrate that plaintiff did not suffer a serious injury.

II.STANDARDS FOR SUMMARY JUDGMENT ON SERIOUS INJURY

To obtain summary judgment, defendant must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact that she caused plaintiff to sustain a "serious injury," as defined in Insurance Law § 5102(d), due to the collision between the parties' vehicles. C.P.L.R. § 3212(b); Shaw v. Looking Glass Assoc. LP, 8 AD3d 100, 102 (1st Dep't 2004); Chatah v. Iglesias, 5 AD3d 160 (1st Dep't 2004); Shinn v. Catanzaro, 1 AD3d 195, 197 (1st Dep't 2003). Only if defendant satisfies this standard, does the burden shift to plaintiff to rebut defendant's prima facie showing, by producing admissible evidence sufficient to require a trial of material factual issues as to whether plaintiff sustained a serious injury from the collision. Knoll v. Seafood Express, 5 NY3d 817, 818 (2005); Franchini v. Palmieri, 1 NY3d 536, 537 (2003); Lamb v. Rajinder, 51 AD3d 430 (1st Dep't 2008); Shaw v. Looking Glass Assoc. LP, 8 AD3d at 102. If defendant fails to meet her burden, the court must deny summary judgment regardless of any insufficiency in plaintiff's opposition. Caballero v. Fev Taxi Corp., 49 AD3d 387, 388 (1st Dep't 2008); Offman v. Singh, 27 AD3d 284, 285 (1st Dep't 2006); Nix v. Yang Gao Xiang, 19 AD3d 227 (1st Dep't 2005); Diaz v. Nunez, 5 AD3d 302 (1st Dep't 2004).

III.DEFENDANT'S EVIDENCE

In January 2008, defendant's radiologist, A. Robert Tantleff M.D., reviewed a magnetic resonance imaging (MRI) of plaintiff's cervical spine conducted July 10, 2006, and found no evidence of acute or recent injury. Defendant's neurologist, Edward Weiland M.D., examined plaintiff in July 2008 and found full range of motion in his shoulders and cervical and lumbar spine, normal reflexes and coordination, no sensory loss, and no other neuromuscular abnormalities.

These findings may demonstrate that plaintiff did not sustain a permanent or significant limitation of functioning in those parts of his body where he claims injuries, Harris v. Ariel Transp. Corp., 55 AD3d 323, 324 (1st Dep't 2008); Lunkins v. Toure, 50 AD3d 399 (1st Dep't 2008); Yagi v. Corbin, 44 AD3d 440 (1st Dep't 2007); Lopez v. Simpson, 39 AD3d 420, 421 (1st Dep't 2007), but, to establish plaintiff's lack of serious injury, defendant's physicians must address diagnostic studies and other medical records that indicate plaintiff did sustain a serious injury. Onishi v. N & B Taxi, Inc., 51 AD3d 594, 595 (1st Dep't 2008); Caballero v. Fev Taxi Corp., 49 AD3d 387; Patterson v. Rivera, 49 AD3d 337 (1st Dep't 2008); Offman v. Singh, 27 AD3d at 285. While plaintiff would face dismissal unless he specifically rebutted the findings by defendant's radiologist or any other defense physician that any abnormality is unrelated to the trauma of the collision, defendant in the first instance must [*3]address plaintiff's records of a serious injury precipitated by the collision, before the court even considers his rebuttal. See, e.g., Delfino v. Luzon, 60 AD3d 196, 198 (1st Dep't 2009); Valentin v. Pomilla, 59 AD3d 184, 186 (1st Dep't 2009); Saint-Hilaire v. PV Holding Corp., 56 AD3d 541 (1st Dep't 2008); Rodriguez v. Abdallah, 51 AD3d 590, 591 (1st Dep't 2008). Without defendant's physicians addressing plaintiff's medical records that may demonstrate a serious injury, defendant fails to meet her initial burden. Shumway v. Bungeroth, 58 AD3d 431 (1st Dep't 2009).

Dr. Weiland explains that authenticated medical records regarding plaintiff were unavailable when Dr. Weiland examined plaintiff. Such an explanation may raise an issue regarding defendant's remedy if defendant has not received from plaintiff the evidence necessary to meet defendant's burden when moving for summary judgment. Unquestionably, defendant in a personal injury action is entitled to choose a physician to examine plaintiff. C.P.L.R. § 3121(a); TOA Constr. Co. v. Tsitsires, 4 AD3d 141, 142 (1st Dep't 2004); Washington v. Delossantos, 44 AD3d 748, 750 (2d Dep't 2007). Where plaintiff refuses to cooperate with an examination, defendant's remedy is to move for penalties, C.P.L.R. § 3126; Washington v. Delossantos, 44 AD3d at 750, which may entail demonstrating plaintiff's wilful disobedience of disclosure requirements. Brewster v. FTM Servo, Corp., 44 AD3d 351, 352 (1st Dep't 2007); Baust v. Travelers Indem. Co., 13 AD3d 788, 790 (3d Dep't 2004). Defendant may obtain the remedy of summary judgment when, as a penalty for plaintiff's disobedience of a disclosure order, the court has precluded plaintiff from presenting evidence critical to his claims. Calder v. Cofta, 49 AD3d 484, 485 (2d Dep't 2008).

Defendant demonstrates no such history of noncompliance. Her neurologist, Dr. Weiland, merely indicates that plaintiff's medical records were unavailable. The MRI of plaintiff's cervical spine obviously was available for review by defendant's radiologist, Dr. Tantleff, six months before Dr. Weiland examined plaintiff. Dr. Weiland might not have reviewed that MRI because Dr. Tantleff had reviewed it, but Dr. Weiland gives a different reason. As to the MRI of plaintiff's lumbar spine conducted only a week after the cervical MRI, Dr. Weiland indicates that it, too, was unavailable, and neither Dr. Tantleff nor defendant explains why he or another physician did not review it. Defendant does not rely on any order requiring plaintiff to produce his medical records or show that he refused defendant's request for those records or for authorizations to obtain them.

To the contrary, the sworn report of plaintiff's chiropractor, Hak-Soo Bae D.C., indicates that the lumbar MRI was available at least as of July 24, 2006, and x-rays of plaintiff's cervical and lumbar spine were available at least as of May 28, 2006, all long before the examination and review of films by defendant's physicians. In addition, nothing indicates Dr. Bae's range of motion studies from May 28, July 24, September 6, and October 16, 2006, January 3 and July 2, 2007, and January 10 and [*4]June 23, 2008, all showing significant loss of range of motion in plaintiff's lumbar as well as cervical spine, were unavailable to defendant's physicians. Thus, while the court may penalize plaintiff's failure to disclose evidence necessary for defendant to evaluate his condition, Brewster v. FTM Servo., Corp., 44 AD3d at 352, defendant has not shown that plaintiff's records were unavailable for review by defendant's physicians because plaintiff failed to produce requested records or for any reason not attributable to defendant herself. Baust v. Travelers Indem. Co., 13 AD3d at 790. Even where defendant's physician reviewed part of plaintiff's medical records, pertaining to one or more areas, but not other areas, where he claims injuries, such partial review is inadequate to negate a serious injury. E.g., Haack v. Kriss, 47 AD3d 1007, 1008 (3d Dep't 2008).

IV.CONCLUSION

Without an explanation why plaintiff's medical records were unavailable to defendant's physicians, and consequently without them addressing those records, defendant fails to demonstrate that plaintiff did not suffer a serious injury. Because defendant fails to meet her burden of demonstrating the absence of a serious injury, the court denies defendant's motion for summary judgment dismissing plaintiff's claims. Shumway v. Bungeroth, 58 AD3d 431; Patterson v. Rivera, 49 AD3d 337. This decision constitutes the court's order.

DATED: July 2, 2009

_____________________________

LUCY BILLINGS, J.S.C.