Hoffman v Banta

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Hoffman v Banta 2012 NY Slip Op 30999(U) April 2, 2012 Supreme Court, Nassau County Docket Number: 23479/10 Judge: Michele M. Woodard 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 OF THE STATE OF NEW YORK COUNTY OF NASSAU ----- ------- ------ ---x MARY HOFFMAN MICHELE M. WOODARD Plaintiff TRIALIIAS Par 8 -against - Index No. : 23479/10 Motion Seq. Nos. : 01 & 02 JENNIFER BANTA DECISION AND ORDER Defendant. ------------------------------------------------------------------------- x Papers Read on this Motion: Plaintiffs Notice of Motion Defendant' s Affrmation in Opposition Defendant's Notice of Cross- Motion Plaintiff s Affirmation in Opposition Defendant's Reply In motion sequence number one , the plaintiff, Mar Hoffman , moves for an Order , pursuant to CPLR 93212, granting her summary judgment on the issue of liability. In motion sequence number two , the defendant , Jennifer Banta , awarding her summar judgment dismissing the plaintiff Mar Hoffman that her injuries do not satisfy the " serious injury " cross-moves for an Order s complaint on the grounds threshold requirement of Insurance Law g5102(d). This action arises out of a three car accident that occurred on April 6 , 2007 on Route 110 and Jefferson Avenue , Town of Babylon, County of Suffolk. The vehicle driven by plaintiff Mar Hoffman was struck from behind by the vehicle owned and operated by the defendant Jennifer Banta. (As a result of this collsion , plaintiff s vehicle , in turn , was allegedly propelled into the rear of the vehicle operated by non- par Barbara O' Neal). Plaintiff claims that , as a result of the collision , she sustained injuries to her neck , back and knee. Specifically, she alleges, inter alia the following injuries: disc herniation at C2- 3; disc bulge at [* 2] C4- 5; straightening of the normal cervical lordosis; C4- 5 mild loss of disc space height , exacerbation of the anterior osteophyte and bilateral disc/ridge complexes with a left sided disc/ridge complex causing foraminal compromise and C5 nerve root impingement; C5- loss of disc space height and exacerbation of the bilateral disc/ridge complexes causing bilateral neural foraminal encroachment and probable C6 nerve root impingement; severe neck pain; muscle spasms; lumbar retrolisthesis at L5 on S 1; radial tear through the inner two thirds of the posterior horn of the left medial meniscus requiring menisectomy on February 12 , Bil of Pariculars 2009; and , Baker s cyst (Verified Bil 5; Supplemental of Pariculars 5). Plaintiff claims that following this accident , she was intermittently confined to her bed and (Id. home for approximately six months at 6). She testified that at the time of this accident , she was retired. As to activities , plaintiff testified that she did not have any hobbies (Hoffman Tr. , p. 8). She states that while she does not do any formal exercise , she walks "just about" every day for fifteen minutes to half an hour. She states that she spends her time with friends , shopping and visiting her children all over the country (Id. at 9). Plaintiff testified that although she has driven to Pennsylvania and Rochester since the accident to visit her children, she has not been able to go down to Georgia to visit one of her children since this accident (Id. at 10- 11). She testified that as a result of this accident she can no longer reach up with her left arm or turn her head to the left without pain and difficulty(Id. at 65). Plaintiff, who was 65 years old at the time of the accident , claims that her injuries fall within only one of the nine categories of body fuction or system (Id. the serious injur statute: to wit , significant limitation of use of a 16). Thus , since the plaintiff does not allege in her complaint or bill of particulars that her injuries satisfy any of the remaining eight categories of Insurance Law and since the plaintiff has not made any motion for leave to amend the bil 5102(d), of particulars so as to [* 3] include a claim that her injuries satisfy the remaining eight categories of the serious injur statute , AD3d 442 (2d Dept 2008); Neiman 306 AD2d 380 (2d Dept 2003)). Ifach Under the no- fault statute Diaz, 48 (Sharma evidence pertaining to any of these categories will not be considered by this Court the , to meet the threshold significant limitation of use of a body function or system , 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 (Licari quantified medical injury or condition 955 (1992); Scheer Ellot Eyler 79 NY2d Gaddy 57 NY2d 230 (1982); and Koubeck 70 NY2d678 (1987)). A minor , mild or slight limitation shall be deemed " insignificant" within the meaning of the statute v. (Licari Ellot Wright Grossman supra; 268 AD2d 79 , 83 (2d Dept 2000)). Further , when , as in this case , a claim is raised under the " significant limitation of use of a body fuction or system " category, then , in order to prove the extent or degree of the physical limitation , an expert s designation of a numeric percentage of plaintiffs Avis Rent A Car Sys., loss of (Toure range of motion is acceptable 98 NY2d 345 , 353 (2002)). 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 s limitations to the normal fuction , purose and use of the affected body organ , member , function or system (lei. Having said that , recently, the Court of Appeals in that a quantitative Perl Meher 2011 NY Slip Op. 08452 , held assessment of a plaintiff s injuries does not have examination and may instead be conducted much later , in to be made during an initial connection with litigation (Perl Meher 2011 NY Slip Op. 08452 (2011 In support of her instant motion , defendant , Jennifer Banta relies upon inter alia plaintiffs unsworn emergency room records from Good Samaritan Hospital where she was transported [* 4] immediately after the accident; the unsworn MRI report of Dr. Elizabeth P. Maltin, M. D. dated March 2009 of her cervical spine; the unsworn report of Dr. Peter Stefanides , M. , dated April 15 , 2009; the unsworn MRI report of Dr. Alex Rosioreanu , M. D. dated Januar 23 , 2009 of her left knee; the unsworn patient information forms for Rehabilitation Services Department from Good Samaritan Hospital dated March 6, 2009; the unsworn report of Dr. Jonathan Owens , M. 2009; and the sworn affrmed report of Dr. Issac Cohen , M. , dated Januar 21 , an orthopedic surgeon who performed an independent orthopedic examination of the plaintiff on August 18 , 2011. Initially, it is noted that while the defendant is permitted to rely upon unsworn MRI reports in support of her motion (Gonzalez st Dept 2003D, where , as in this case , the Vasquez 301 AD2d 438 (1 reports are not paired with the doctor plaintiff, s observations during his or her physical they fail to constitute objective spelled out by the Court of Appeals in Toure examination of the medical evidence and fly in the face of the requirements Sys. , supra. Avis Rent A Car Similarly, while the defendant is permitted to rely upon the unsworn reports of the plaintiffs examining physicians such as the unsworn report of and the unsworn report of Dr. Jonathan Owens , M. Dr. Peter Stefanides , M. , dated Januar 21 , 2009 , dated April l5 , 2009 (Pagano Kingsbury, 182 AD2d 268 (2d Dept 1992)), where the reports fail to document any medical findings based on the physician s own examinations , tests and observations and review of the record, instead manifesting only the plaintiffs subjective complaints , said reports are entirely insuffcient. Indeed , Dr. Stefanides and Dr. Owens both fail to support their findings by any credible medical evidence of an objectively measured and quantified medical injury or condition Scheer (Licari Ellot supra; Gaddy Eyler supra; Koubeck supra). The balance of defendant's proof , however , sufficiently and competently establishes that the plaintiff s injuries do not satisfy the threshold " significant limitation of use of a body function or [* 5] system " category. Specifically, the affirmed report of Dr. Issac Cohen , M. , who examined the plaintiff and performed quantified range of motion testing on her cervical spine , left shoulder and left knee with a goniometer , compared his findings to normal range of motion values and concluded that the ranges of motion measured were normal , defendants ' medical evidence sufficiently demonstrates that the plaintiff did not sustain a " serious injury " as a result of this accident. The defendant's medical proof confirms that despite extensive motor and sensory testing, there were no deficits , and based on the clinical findings and medical records review, the plaintiff had preexisting left knee arhritis , and as a result of this accident , sustained a cervical spine strain , and a left shoulder/left arm contusion all of which have since resolved (StafJv Yshua Gelle 60 AD3d 988 Cantave 59 AD3d 614 (2d Dept2009); (2d Dept 2009D. Having made a prima facie showing that the 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 defendant's submissions by demonstrating sustaned (Pommels Perez 4 NY3d 566 (2005); a triable issue of fact that a " serious Grossman injury" was Wright supra). In opposition , the plaintiff submits , the unsworn records from Metro Comprehensive Physical & Aquatic Therapy; the unsworn reports of Dr. Peter Stefanides, M. , dated July 17 , 2009 , and April 15 , 2009; the unsworn , unsigned records of Dr. Michael Raio , M. emergency room records from Good Samaritan 2009 , May 29 ; the unsworn Hospital dated April 29 , 2009; and , finally, the unsworn , unaffirmed " affirmation " of Dr. Michael Raio , Jr. Plaintiff s proof is wholly insufficient to present a triable issue of fact herein. First , the unsworn records from Metro Comprehensive Physical & Aquatic Therapy, the unsworn emergency room records from Good Samaritan Hospital dated April 29, 2009 (nearly two years after this accident), the unsworn reports of Dr. Peter Stefanides , M. , dated July 17 2009 , May [* 6] , 2009 and April 15 , 2009 , and the unsworn , unsigned records of Dr. Michael Raio , M. , are all insuffcient to defeat summar judgment. Said reports are neither sworn nor affirmed; accordingly, they (Pagano are presented in inadmissible form and are devoid of any probative value Grasso Angerami supra; Kingsbury, 79 NY2d 813 (1991)). That is , unlike the movant' s proof, unsworn reports of plaintiffs examining doctor are not sufficient to defeat a motion for (Grasso summary judgment Angerami supra). To the extent that the defendant relied upon Dr. Stefanides ' unsworn report dated April 15 2009 in support of their motion , and in so doing, opened the door for the plaintiff to rely upon the same report and records in opposition to the motion 2003)), this Court notes that the only report that specific report (dated April 15 , Yael Taxi Corp. (Pech would 303 AD2d 733 (2d Dept be considered under this analysis would be that 2009); Dr. Stefanides ' remaining precluded. In any event , for the reasons stated above , the April 15 , reports would nonetheless be 2009 report , fails to constitute admissible evidence herein. Finally, with respect to the " affirmation" of Dr. Michael Raio, Jr. , this Cour simply cannot deem it competent and admissible medical evidence in opposition to the defendant' s motion. CPLR g2106 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 par to an action may be served affrmed by him or fied in the action in lieu of and with the same force and effect as an affidavit. (Emphasis when subscribed and to be true under the penalties of perjury, Added). No where does Dr. Raio " affirm " that the statements contained in his report are true under the penalties of perjury. Moreover , even if considered , Dr. Raio fails to set forth any of his objective medical findings or state what objective testing he used , if any. This is contrary to the requirements of Toure Avis Rent a [* 7] Car Systems rendering his opinion as to any Systems supra; Avis Rent a Car (Toure loss insufficient Powell vAlade 31 AD3d 523 (2d Dept 2006)). Therefore , in the absence of any competent or admissible evidence supporting a claim for serious injur, defendant's As such , granted. purorted motion for summar judgment dismissing the plaintiffs complaint must be is it hereby ORDERED , that the defendant's application is granted and the plaintiffs complaint is in its entirety. dismissed Under these circumstances , the motion by plaintiff, Mar Hoffman , for an Order , pursuant to CPLR 93212 , granting her summar judgment on the issue ofliability is denied as moot. This shall constitute the decision and order of this Cour. DATED: April 2 , 2012 Mineola, N. Y. 11501 ENTER: HON. MICHELE M. WOOD RD XXX ENTERED APR 1 0 2012 NASSAU COUNTY' COUNTY CLI!R' S OFFtCE

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