McCrimmon v Mangal
2012 NY Slip Op 31231(U)
May 4, 2012
Sup Ct, Queens County
Docket Number: 26804/10
Judge: Howard G. Lane
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Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY
Present: HONORABLE HOWARD G. LANE
IAS PART 6
Index No. 26804/10
Date April 24, 2012
CRYSTAL MANGAL, et al.,
Sequence No. 1, 2
Notice of Motion #21-Affidavits-Exhibits...
Notice of Motion #22-Affidavits-Exhibits...
Upon the foregoing papers it is ordered that the motion by
defendants Crystal Mangal and Hemwatie Mangal for summary
judgment dismissing the complaint of plaintiff, Carlton McCrimmon
and the motion by defendant, Gabrielle S. Rugato for summary
judgment dismissing the complaint of plaintiff, Carlton
McCrimmon, pursuant to CPLR 3212, on the ground that plaintiff
has not sustained a serious injury within the meaning of the
Insurance Law § 5102(d)are hereby consolidated solely for
purposes of disposition of the instant motions and are decided as
This action arises out of an automobile accident that
occurred on May 18, 2010. Defendants have submitted proof in
admissible form in support of the motion for summary judgment for
all categories. Defendants have submitted inter alia, affirmed
reports from two independent examining radiologists.
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
). 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
(Alvarez v. Prospect Hospital, 68 NY2d 320 ; Winegrad v.
New York Univ. Medical Center, 64 NY2d 851 ). 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
). 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 ).
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 ). 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
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]).
A. Defendants established a prima facie case that plaintiff
did not suffer a "serious injury" as defined in Section 5102(d)
for all categories.
The affirmed report of defendants’ independent evaluating
radiologist, Alan B. Greenfield, M.D., indicates that an MRI of
the plaintiff’s lumbar spine revealed an impression of: normal
lordotic curvature; negligible degenerative disc bulging at L5S1; no disc herniations at any level; and degenerative discopathy
entirely unrelated to the subject accident.
The affirmed report of defendants’ independent evaluating
radiologist, Alan B. Greenfield, M.D., indicates that an MRI of
the plaintiff’s left shoulder revealed an impression of: no
evidence of fracture or rotator cuff tear and a slight
downsloping of the AC joint representing a normal anatomic
The affirmed report of defendants’ independent examining
orthopedist, Salvatore Corso, M.D., indicates that an examination
of plaintiff conducted on June 9, 2011 revealed a diagnosis of:
resolved cervical strain, resolved right and left shoulder
sprain, and resolved lumbar strain. Dr. Corso concludes that
there is no evidence of an orthopedic disability.
Additionally, the plaintiff’s verified bill of particulars
indicates that plaintiff was only confined to bed for one week
and confined to home for one week. Such evidence shows that the
plaintiff was not curtailed from nearly all activities for the
bare minimum of 90/180, required by the statute.
The aforementioned evidence amply satisfied defendants’
initial burden of demonstrating that plaintiffs did not sustain a
"serious injury" for all categories. Thus, the burden then
shifted to plaintiffs 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 NY2d 955 ). 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 for all
categories except for the ninth category of “90/180 days”.
In opposition to the motion, plaintiff submitted: an
attorney’s affirmation; a sworn affidavit and sworn narrative
report of plaintiff’s chiropractor, Ronald P. Mazza, D.C.; an
unsworn narrative report of plaintiff’s chiropractor, Ronald P.
Mazza, D.C., an affirmation of plaintiff’s orthopedic surgeon,
Alfred Faust, M.D.; an affirmation and sworn narrative report of
plaintiff’s physical medicine and rehabilitation physician, Ahmed
Eleman, M.D.; a sworn affidavit and narrative reports of
plaintiff’s physical therapists, May Nunez, Bienvenido Ceballos
Jr., and Leila M. Hisole-Ceballos; an affidavit of plaintiff’s
physical therapist, Isabel Yomtobian; an affirmation and sworn
report of plaintiff’s radiologist, John T. Rigney, 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 ).
Plaintiff submitted medical proof that was contemporaneous with
the accident showing range of motion limitations regarding the
right shoulder, lumbar spine, and cervical spines (Pajda v.
Pedone, 303 AD2d 729 [2d Dept 2003]). Plaintiff has established
a causal connection between the accident and the right shoulder,
lumbar spine, and cervical spine injuries. The affirmation
submitted by plaintiff’s physician, Ahmed Eleman, MD 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 right shoulder, cervical
spine, and lumbar spine. Dr. Eleman opines that the right
shoulder, cervical spine, and lumbar spine injuries sustained by
the plaintiff in the accident were causally related to the motor
vehicle accident of May 18, 2010 and “are not the result of some
degenerative condition”. Additionally, plaintiff’s radiologist,
John T. Rigney, M.D., interpreted MRI films of plaintiff’s left
shoulder taken on July 28, 2010 and found an impression of:
presence of impingement without a rotator cuff tear, bursal
inflammation, or a joint effusion. Additionally, plaintiff’s
radiologist, John T. Rigney, M.D., interpreted MRI films of
plaintiff’s lumbar spine, taken on July 26, 2010 which revealed
an impression of: straightening of lumbar curvature and slight
posterior disc bulge at L5-S1. 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 and sworn narrative
report of plaintiff’s chiropractor, Ronald P. Mazza, D.C.
provides that a recent examination by Dr. Mazza on February 15,
2012, sets forth the objective examination and tests which were
performed to support his conclusion that the plaintiff suffers
from significant injuries, to wit: loss of range of motion of the
cervical spine and lumbar spine. Dr. Mazza opines that the
injuries are permanent in nature and causally related to the
motor vehicle accident of May 18, 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. Blumber, supra, 250 AD2d 364, 672
NYS2d 319 [1st Dept 1998]).
Additionally, despite defendants’ contentions that there is
an unexplained gap in treatment (the Court of Appeals held in
Pommells v. Perez, 4 NY3d 566 , that a plaintiff who
terminates therapeutic measures following the accident, while
claiming "serious injury", must offer some reasonable explanation
for having done so), the Court finds that the gap in treatment is
adequately explained by plaintiff’s doctor, Ronald P. Mazza, D.C.
wherein he affirms that he treated plaintiff from July 14, 2010
until August 30, 2010 at which time his no fault benefits were
cut off (see, Jules v. Barbecho, 55 AD3d 548 [2d Dept 2008]).
Since there are triable issues of fact regarding whether the
plaintiff sustained a serious injury to his cervical and lumbar
spines, plaintiff is entitled to seek recovery for all injuries
allegedly incurred as a result of the accident (Marte v. New York
City Transit Authority, 59 AD3d 398 [2d Dept 2009]).
However, the plaintiff failed to come forward with
sufficient evidence to create an issue of fact as to whether the
plaintiff sustained a medically-determined injury which prevented
him from performing substantially all of the material acts which
constituted his usual and customary daily activities for not less
than 90 of the 180 days immediately following the underlying
accident (Savatarre v. Barnathan, 280 AD2d 537. The record must
contain objective or credible evidence to support the plaintiff’s
claim that the injury prevented him form performing substantially
all of his customary activities (Watt v. Eastern Investigative
Bureau, Inc., 273 AD2d 226). The plaintiff’s doctors fail to
state any restriction of the plaintiff’s daily and customary
activities caused by the injuries sustained in the subject
accident during the statutory period. Plaintiff’s experts fail
to render an opinion on the effect the injuries claimed may have
had on the plaintiff for the 180 day period immediately following
the accident. Plaintiff has not submitted any competent evidence
from any treating physician confirming plaintiff’s
representations concerning the effects of the injuries for the
statutory period. Plaintiff’s submissions were insufficient to
establish a triable issue of fact as to whether plaintiff
suffered from a medically determined injury that curtailed him
from performing his usual activities for the statutory period
(Licari v. Elliott, 57 NY2d 230, 236 ). Accordingly,
plaintiff’s unsubstantiated claim that his injuries prevented him
from performing substantially all of the material acts
constituting his customary daily activities during at least 90 of
the first 180 days following the accident is insufficient to
raise a triable issue of fact (see, Graham v. Shuttle Bay, 281
AD2d 372 ; Hernandez v. Cerda, 271 AD2d 569 ; Ocasio
v. Henry, 276 AD2d 611 ).
Therefore, plaintiff’s submissions are sufficient to raise a
triable issue of fact for all categories except for the ninth
category of “90/180 days” (see, Zuckerman v. City of New York, 49
NY2d 557 ).
Accordingly, the defendants’ motions for summary judgment
against plaintiff are denied as to all categories except for the
category of “90/180 days”.
The Clerk of the County of Queens is directed to enter
Movant shall serve a copy of this order with Notice of Entry
upon the other parties of this action and on the Office of the
Clerk of the County of Queens. If this order requires the Clerk
of the County of Queens to perform a function, movant is directed
to serve a copy upon the appropriate clerk.
This constitutes the decision and order of the Court.
Dated: May 4, 2012
Howard G. Lane, J.S.C.