Bielecky v Lee
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Bielecky v Lee 2012 NY Slip Op 30692(U) March 1, 2012 Supreme Court, Queens County Docket Number: 20497/10 Judge: Howard G. Lane 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] Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE HOWARD G. LANE Justice IAS PART 6 ----------------------------------SCOTT C. BIELECKY, Index No. 20497/10 Motion Date February 7, 2012 Plaintiff, -against- Motion Cal. No. 5 IVY LEE, Defendant. ----------------------------------- Motion Sequence No. 1 Papers Numbered Notice of Motion-Affidavits-Exhibits... Opposition............................. Reply.................................. 1-5 6-8 9-10 Upon the foregoing papers it is ordered that this motion by defendant for summary judgment dismissing the complaint of plaintiff, Scott C. Bielecky, 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 April 23, 2010. Defendant has submitted proof in admissible form in support of the motion for summary judgment. Defendant has submitted, inter alia, affirmed reports from two independent examining physicians (a neurologist and a radiologist). 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 1 [* 2] (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York Univ. Medical Center, 64 NY2d 851 [1985]). In the present action, the burden rests on defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury" (Lowe v. Bennett, 122 AD2d 728 [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 [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 [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 [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 [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, 749 NYS2d 445 [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 [2d Dept 1999]; Feintuch v. Grella, 209 AD2d 377 [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 [1st Dept 1999]; Tompkins v. Budnick, 236 AD2d 708 [3d Dept 2 [* 3] 1997]; Parker v. DeFontaine, 231 AD2d 412 [1st Dept 1996]; DiLeo v. Blumberg, 250 AD2d 364 [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]). DISCUSSION A. Defendant established a prima facie case that plaintiff did not suffer a "serious injury" as defined in Section 5102(d). The affirmed report of defendant s independent examining neurologist, Jean-Robert Desrouleaux, M.D., indicates that an examination conducted on April 23, 2010 revealed a diagnosis of: status post cervical and lumbar sprain/strain, resolved. He concludes that there is no evidence of neurological disability or permanency due to the accident. The affirmed report of defendant s independent examining radiologist, Sheldon Feit, M.D., indicates that an MRI of the lumbosacral spine taken on May 10, 2010 indicates an impression of: mild disc bulge at L5-S1 and no evidence of focal herniation. He concludes that the MRI reveals preexisting degenerative change and notes that disc bulges are not posttraumatic, but are degenerative and the findings are not causally related to the accident. The affirmed report of defendant s independent examining radiologist, Sheldon Feit, M.D., indicates that an MRI of the cervical spine taken on May 10, 2010 indicates an impression of: normal study. Dr. Feit concludes that there are no discernible abnormalities. 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 3 [* 4] 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 In opposition to the motion, plaintiff submitted: an attorney s affirmation, an affirmation of plaintiff s physician, Dale Alexander, D.O., an affirmation of plaintiff s radiologist, Mark Shapiro, M.D., an EMG/NCS report of the Upper and Lower Extremities of plaintiff by Dale Alexander, D.O., and a sworn Cervical and Lumbar Spine MRI report by Mark Shapiro, M.D. 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 NY3d 566 [2005]). Plaintiff submitted medical proof that was contemporaneous with the accident showing range of motion limitations of the cervical spine (Pajda v. Pedone, 303 AD2d 729 [2d Dept 2003]). Plaintiff has established a causal connection between the accident and the cervical spine injuries. The affirmation submitted by plaintiff s treating physician, Dr. Dale Alexander, sets forth the objective examination and tests which were performed contemporaneously with the accident to support his conclusion that the plaintiff suffered from significant injuries, to wit: range of motion limitations in the cervical and lumbar spines. Dr. Alexander s affirmation details plaintiff s symptoms, including headaches, neck pain, left shoulder pain, back and right knee pain. Dr. Alexander opines that the injuries sustained by the plaintiff in the accident were causally related to the motor vehicle accident of April 23, 2010. Additionally, the affirmation of plaintiff s radiologist, Mark Shapiro, M.D. indicates that an MRI of the Cervical Spine taken on May 10, 2010 revealed focal bulges at C3-4 and C5-6, creating impingement on the neural canal and straightening of the cervical lordosis and an MRI of the lumbar spine taken on May 10, 2010 revealed loss of signal and right paracentral herniation at L5-S1, creating impingement . Furthermore, plaintiff has provided a recent medical examination detailing the status of his injuries at the current point in time (Kauderer v. Penta, 261 AD2d 365 [2d Dept 1999]). The affirmation of Dr. Alexander provides that a recent examination by Dr. Alexander on November 10, 2011, sets forth the objective examination and tests which were performed to support 4 [* 5] his conclusion that the plaintiff suffers from significant injuries, to wit: range of motion limitations of the cervical and lumbar spines. He further opines that the injuries are permanent in nature and causally related to the motor vehicle accident of April 23, 2010. Clearly, the plaintiff s experts conclusions are not based solely on the plaintiff s subjective complaints of pain, and therefore are sufficient to defeat the motion (DiLeo v. Blumberg, supra, 250 AD2d 364, 672 NYS2d 319 (1st Dept. 1998). Therefore, plaintiff s submissions are sufficient to raise a triable issue of fact (see, Zuckerman v. City of New York, 49 NY2d 557 [1980]). Accordingly, the defendant s motion for summary judgment is denied. The foregoing constitutes the decision and order of this Court. Dated: March 1, 2012 ......................... Howard G. Lane, J.S.C. 5
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