Vailes v Sukhraj
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Vailes v Sukhraj 2011 NY Slip Op 33378(U) December 9, 2011 Sup Ct, Nassau County Docket Number: 013862-10 Judge: Arthur M. Diamond Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. .................. .... ......... ...... [* 1] SUPREME COURT - STATE OF NEW YORK Present: HON. ARTHUR M. DIAMOND Justice Supreme Court -----------------------------------------------------------------------x MICHAEL VAlLES, TRI PART: 14 NASSAU COUNTY Plaintiff, INDEX NO: 013862- -against- MOTION SEQ. NO:l SHAUN A. SUKHRAJ and REX B. SUKHRAJ, Defendants. SUBMIT DATE: 11/1/11 ------------------------------------------------------------------ x The following papers having been read on this motion: Notice of Motion..................... Op position............. ...................... Rep Iy ....... Motion by defendants , Shaun A. Sukaj and Rex B. Sukaj, for an Order , awarding them sumar judgment dismissing the plaintiff, Michael Vailes ' complaint on the grounds that his injuries do not satisfy the " serious injury " threshold requirement of Insurance Law 51 02( d), is granted. This action arises out of a motor vehicle accident that occured on November 4 , 2008 at approximately 9:45 p. m. at the intersection of Sunise Highway and N. Bergen Road in Freeport New York. The impact allegedly occured as plaintiffs vehicle , attempting to make a left tu onto N. Bergen Avenue , was struck by the vehicle being operated by the defendant who purortedly made a left tu also onto N. Bergen A venue. Plaintiff Michael Vailes claims that , as a result of the subject accident , he sustained inter alia the following serious injuries: bilateral C8 radiculopathy; cervical derangement; cervical strain/sprain; post traumatic cervical myofascitis; cervical somatic dysfuction; disc herniation at T7- 8 and Ill; thoracic strain/sprain; post traumatic thoracic myofascitis; thoracic somatic dysfunction; disc herniation L2- 3 with impression on the left ventral margin of the thecal sac and narowing the left neural foramina; disc bulge L3- 4; disc herniation L4- 5 with impression on the ventral margin of the thecal sac; disc herniation at L5- S 1 with anular tear that contacts the ventral margin of the thecal sac; post traumatic lumbar myofascitis; lumbar somatic dysfunction; lumbar ," [* 2] derangement; lumbar strain/sprain; peripheral nerve injury and dysfunction; occipital headaches; adjustment disorder with anxiety (Bil of Pariculars 9). Although in his Bil of Pariculars , plaintiff claims that he was confined to his bed and home from the date of the accident through November 8 , 2008 and intermittently thereafter (Id. at 11), at his oral examination before trial (EBT), he stated that he was not confined at all to his bed and/or home as a result of this accident (Vailes Tr. , p. 51). Plaintiff testified that at the time of this accident , he was employed as a barender as par of the Special Services Deparment at the Long Island Rail Road He testified that he only missed " couple of days here and there " from work as a result of this accident (Id. at p. 49). As to activities , plaintiff testified that while he is unable to go bowling, play pick-up football or play with his son (Id. at pp. 50- 51), he was not instructed by any doctor to limit said activities (Id. at 50). Plaintiff, who was 34- years old at the time of the accident , claims that his injuries fall within the following four categories of the serious injur statute: to wit , 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 fuction or system; and 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 customar daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injur or impairment (Bil of Pariculars 9). However , in the absence of any claim that his injuries as a result of this accident resulted in a "total loss of use " of a body organ , member , fuction or system , plaintiffs claim that his injures satisfy the "permanent loss of use " category of the " serious (Oberly v. injur" statute canot be sustained Bangs Ambulance, Inc. 96 NY2d 295 (2001)). Furhermore , plaintiff s claims that his injuries satisfy the 90/180 category of Insurance Law ~51 02( d) are also unsupported and contradicted by his own testimony wherein he states that he only missed a " couple of days here and there " from work as a result of this accident and that there is no activity that he was "medically impaired" from performing. Plaintiff has thus failed to provide any evidence that he was "medically" impaired to a great extent rather than some slight curailment _--- [* 3] from doing any activities as a result of this accident for 90 days within the first 180 days following this accident. Therefore , this Cour determines that plaintiff has also effectively abandoned his 90/180 claim for puroses of defendant's initial burden of proof on a threshold motion (Joseph Forman 16 Misc. 3d 743 (Sup. Ct. Nassau 2007)). Accordingly, this Court wil restrict its analysis to the remaining two categories as it pertains to the plaintiff; to wit , permanent consequential limitation of use of a body organ or member; and significant limitation of use of a body fuction or system. In support of a claim that the plaintiff has not sustained a serious injury, defendants may rely either on the sworn statements of their examining physician or the unsworn reports of the plaintiff examining physician (Pagano v. s 182 AD2d 268 (2 Dept. 1992)). When a defendants Kingsbury, motion is sufficient to raise the issue of whether a " serious injur" has been sustained , the burden shifts and it is then incumbent upon the plaintiff, in opposition to defendants ' motion , to produce prima facie evidence in admissible form to support the claim for serious injur (Licari v. Ellot, 57 NY2d 230 (1982)). However , unlike the movant's proof , unsworn reports of plaintiffs examining doctor or chiropractor are not sufficient to defeat a motion for summar judgment (Grasso Angerami 79 NY2d 813 (1991)). Otherwise , a medical affirmation or affidavit which is based on a physician s personal examination and observations of the plaintiff, is an acceptable method to provide a doctor s opinion regarding the existence and extent of a plaintiff s serious injur v. 2003 WL 21087012 citing Sullvan v. Atrium Bus Co. 246 AD2d 418 (1 st Dept.998)). That is , in order to be sufficient to establish a prima facie case of serious physical physician s affirmation or affdavit physician s own examinations , must contain medical findings , tests and observations (see Reid injur, the which are based on the and review of the record , rather than manifesting only the plaintiffs subjective complaints. Essentially, in order to satisfy the statutory serious injury threshold , the legislature requires objective proof of a plaintiffs injury. The Court of Appeals in stated that plaintiffs _H and CT sca!? .sts proof of injury v. Avis Rent A Car Systems must be supported by objective medical evidence , such as MRI fIourt!Jl Avi &!lUtCCl are not competent evidence unless both sides rely on those reports 438 (1 st Dept. 2003)). Further T oure NY2d345 J (2QQ2)1-Un (Gonzalez v. Qm MRILepms Vasquez 301 AD2d , even MRI and CT scan tests and reports must also be paired with the [* 4] doctor s observations during his/her physical examination ofthe plaintiff (Toure v. Avis Rent A Car Systems supra). On the other hand , even where there is ample objective proof of plaintiffs injury, the Cour of Appeals has held in Pommels v. Perez that certain factors may nonetheless override a plaintiff s objective medical proof of limitations and nonetheless permit dismissal of plaintiffs complaint. Specifically, in Pommels v. Perez the Cour of Appeals held that additional contributing factors such as a gap in treatment , an intervening medical problem , interrpt the chain of causation or a preexisting condition , between the accident and the claimed injur (Pommels v. could Perez, 4 NY3d 566 (2005)). As a result , the Court requires the plaintiff in these cases to proffer some (Id). reasonable explanation for the additional contributing factor Under the no- fault statute , to meet the specific threshold significant limitation of use of a body fuction or system or permanent consequential limitation categories of the statute , the law requires that the limitation be more than minor , mild , or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified. medical injur or condition (Licari v. Ellot supra; Gaddy v. Eyler 79 NY2d 955 (1992); Scheer v. . Koubeck 70 NY2d 678 (1987)). A minor , mild or slight limitation is deemed " insignificant" within the meaning of the statute (Licari v. Ellot supra; Grossman v. Wright 268 AD2d 79 , 83 (2 Dept. 2000)). . That is , when , as in this case, a claim is raised under the " permanent consequential limitation . of use of a body organ or member " or " significant limitation of use of a body fuction or system categories , then , in order to prove the extent or degree of the physical limitation , an expert' designation of a numeric percentage of plaintiff s loss of range of motion is acceptable Rent A Car Systems, Inc. (Toure v. Avis supra). In addition, an expert' s qualitative assessment of a plaintiffs condition is also probative , provided that: (1) the evaluation has an objective basis , and , (2) the evaluation compares the plaintiff body organ , s limitations to the normal fuction , purose and use ofthe afected member , function or system (ld). Recently, the Cour of Appeals in Perl require both quantitative proof of a " serious v. Meher 2011WL 5838721 , reconciled the need to injur " and " contemporaneous " evidence of a " serious injur. " There , the Cour stated , in pertinent par , as follows: [* 5] * * * (A) rule requiring " contemporaneous " numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out immediately after being injured , a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery. With these guidelines in mind , this Court wil now tur to the merits of defendant's motion. In support of their motion , the defendants submit inter alia the sworn report of Dr. Iqbal Merchant , M. , a neurologist who performed an independent neurological examination of the plaintiff on May 27 2011; the " affirmed" report of M. H. Rosenfeld , Psy. D. , a New York State Licensed Psychologist who purportedly conducted an independent "psychological" examination of the plaintiff on November 16 2009; and , the sworn report of Dr. Robert Simon , M. , a physician who performed an independent physical examination of the plaintiff on April 27 , 2009. Initially it is noted that the " affirmed" report of M. H. Rosenfeld , Psy. D. , does not constitute competent medical evidence in support of defendants ' motion for sumar judgment. CPLR 2106 is very clear: The statement of an attorney admitted to practice in the cours of the state , or of a physician osteopath or dentist , authorized by law to practice in the state , who is not a pary to an action , when subscribed and affrmed by him to be true under the penalties of perjur, may be served or fied in the action in lieu of and with the same force and effect as an affidavit. The intent of the statute is also clear: the persons curently eligible to submit affrmations in lieu of affdavits all have professional obligations of honesty. A psychologist does not come within scope of the statute allowing affirmations by certain persons to be given the same force and effect as an affidavit; to make a competent , admissible affirmation , a psychologist , like most other persons , must first appear before a notar or other such official and formally declare the truth of the contents of the document AD2d 296 (2 Dept. 1999); (Doumanis v. Conzo , 265 Casas v. Montero 48 AD3d 728 (2 Dept. 2008)). Accordingly, this Cour wil not consider Mr. Rosenfeld' s statements in support of defendants ' motion. [* 6] Further , while the sworn report of Dr. Robert Simon , M. D. constitutes competent evidence in support of defendants ' motion , it is nonetheless insufficient. Dr. Simon s failure to specify the degrees of range of motion in the plaintiff s cervical and lumbar spine , merely stating that the (r)ange of motion of the upper and lower extremities including the cervical and lumbar spine was normal" obviously falls short of demonstrating the absence of a serious injury 32 AD3d 891 (2 Dept. 2006); Whittaker (Connors v. Flaherty, Webster Trucking Corp. 33 AD3d 613 (2 Dept. v. 2006)). Nonetheless , defendants ' remaining proof , to wit , the sworn report of Dr. Iqbal Merchant , is sufficient to establish their prima facie entitlement to judgment as a matter of law. Specifically, Dr. Merchant , examined the plaintiff, performed quantified range of motion testing on his cervical and lumbar spine with a goniometer, compared his findings to normal range of motion values and concluded that the ranges of motion measured were normal. Dr. Merchant also performed motor and sensory testing and found no deficits , and based on his clinical findings and medical records review , concluded that plaintiff has a resolved cervical , thoracic and lumbar sprain with no permanent or residual disability Gelle 60 AD3d 988 (2 (Staj) v. Yshua 59 AD3d 614 (2 Dept. 2009); Cantave Dept. 2009)). Thus , having made a prima facie showing that the injured plaintiff did not sustain a " serious injury " within the meaning of the statute , the burden shifts to the plaintiff to come forward with evidence to overcome the defendants ' submissions by demonstrating a triable issue of fact that a serious injur " was sustained (Pommels v. Perez supra; see also Grossman v. Wright supra). In opposition, counsel for plaintiff submits a variety of foureen un- tabbed exhibits (including one report of a different patient) none of which establish that plaintiff has sustained a serious injur within the meaning of Insurance Law ~5102(d). Specifically, with the exception of plaintiffs. own affidavit and the sworn affidavit of Dr. Lam Quan , M. , the plaintiff s remaining proof constitutes incompetent medical evidence for they are all unsworn records of the plaintiff s physicians. As stated above , in opposing defendants motion , plaintiff is precluded from relying upon the unsworn reports of his own doctors Angerami supra; AD3d 579 (2 see also , Bravo v. Rehman 28 AD3d 694 (2 Dept. 2006)). Said evidence (Grasso Dept. 2006); Burgos v. Vargas is without any probative value and thus will not be [* 7] considered by this Court in opposition to defendants ' motion. Specifically, plaintiffs hospital records , Dr. Robert Fisch' s unsworn reports , Dr. Ahmed Elemam s unsworn reports and Dr. Stephen Roberts s unsworn reports (which also fail to indicate any comparative range of motion findings) are all inadmissible herein. In fact, Dr. Elemam s report is also unsigned. Furher, the " affrmation " of Jason T. Birnak , D. , a chiropractor , the unsworn , C. report of Alan Ng, an acupuncturist , and the " sworn " report of Jeffrey Rubin, Ph. , a psychologist are all incompetent evidence for none of these reports are presented in the form of a sworn affidavit as is required by the CPLR supra (CPLR 2106; see also Pichardo v. Blum 267 AD2d 441 (2 Dept. 1999)). Finally, plaintiffs reliance upon his unsworn MRI reports is also fatal to his opposition. As stated above , reports unsworn MRI reports are not competent evidence uness both sides rely on those (Gonzalez v. Vasquez supra). In any event , in the absence of any opinion by the radiologists therein as to causation of their findings, said MRI reports are insufficient to present an issue of fact herein (Collns Stone 8 AD3d 321 (2 v. Dept. 2004); Betheil-Spitz v. Linares 276 AD2d 732 (2 Dept. 2000)). As to the sole medical proof submitted by the plaintiff that can and wil be considered by this Cour , to wit , the affidavit of Lam Quan , M. , said report is also insufficient to present an issue of fact. Initially, it is noted that Dr. Quan states that he reviewed the unaffirmed and inadmissible MRI reports noted above in preparing his affidavit. As these reports are unaffirmed and otherwise inadmissible supra Dr. Quan ' s reliance upon them in diagnosing plaintiff's condition , also renders his conclusions inadmissible (Kreimerman Stunis 74 AD3d 753 (2 Dept. 2010)). Furhermore v. Dr. Quan baldly states in his affidavit that he has been "treating" the plaintiff for his injuries sustained in the within accident and that the plaintiff has "received exhaustive treatment." Yet , Dr. Quan never specifies for example the date that he commenced treatment , what said treatment consisted of, or what his findings were on his previous examinations. In his affidavit , Dr. Quan merely reports his findings for his examination of the plaintiff on October 12 , 2011 , nearly three years after the accident. Thus , contemporaneous with this accident plaintiffs sole medical proof is not evidence of an injur (Resek v. Morreale 74 AD3d 1043 (2 Dept. 2010); Jack [* 8] Acapulco Car Servs., Inc. 72 AD3d 646 (2 Dept. 2010)). Therefore , in the absence of any competent or admissible evidence supporting a claim for serious injur, defendants ' complaint is herewith granted motion seeking summar judgment dismissal of Michael Vailes (Licari v. Ellot supra). The complaint is dismissed. This shall constitute the decision and order of this Cour. Settle Judgment on Notice. ENTER DATED: December 9 2011 C. HON. ARTHUR M. DIAMOND To: Attorney for Plaintiff PAUL BRYAN SCHNEIDER, P. 445 Broad Hollow Road , Suite 330 Melvile , New York 11747 Attorney for Defendant NTJ; RE DEC 14 2011 NASSAU COUNTY COUNTY CLERK' S OfFtCE ADAMS, HANSON, FINDER, HUGHES, REGO, KAPLAN & FISHBEIN 1991 Marcus Avenue , Suite 305 Lake Success , New York 11042
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