Hoffman v Banta
2012 NY Slip Op 30999(U)
April 2, 2012
Supreme Court, Nassau County
Docket Number: 23479/10
Judge: Michele M. Woodard
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[* 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.
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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
