Song v Choo

[*1] Song v Choo 2004 NY Slip Op 51416(U) Decided on August 26, 2004 Supreme Court, Queens County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 26, 2004
Supreme Court, Queens County

IN W. SONG, et al.

against

ANTHONY CHOO



14445 2002

Roger N. Rosengarten, J.

This is an action to recover damages for serious personal injuries allegedly sustained by the plaintiffs, on June 16, 2001, as a result of a two-car motor vehicle accident which occurred at the intersection of Northern Boulevard and Utopia Parkway in Queens. At the time of the accident, plaintiff In W. Song was the driver of one of the vehicle's and plaintiff Kwang S. Lee was his passenger. Defendant Anthony Choo was the operator of the other vehicle involved in the accident. The defendant moves for summary judgment dismissing the complaint against him on the ground that the plaintiff Lee has not sustained a serious injury as defined by Insurance Law § 5102(d). The plaintiff on the counterclaim, In W. Song, also seeks summary judgment dismissing plaintiff Lee's complaint on serious injury grounds. [*2]

The moving papers present proof in admissible form, including the affirmed medical reports of Dr. Anthony Spataro, an orthopedist, who conducted an independent medical examination of the plaintiff on November 25, 2003. This report demonstrates the absence of any condition in plaintiff Lee which might meet the serious injury threshold of Insurance Law § 5102(d). Thus, the burden shifts to plaintiff Lee to demonstrate the existence of a triable issue of fact.

In opposition to summary judgment, plaintiff Lee submits, inter alia, the unsworn medical report and affidavit of Dr. Chee Gap Kim, a medical doctor and specialist in physical medicine and rehabilitation, dated March 27, 2004. Dr. Kim examined the plaintiff on two occasions after the accident, on June 23, 2001, and March 25, 2004. Initially, the unsworn report of Dr. Kim is not in admissible form and, thus, may not be considered (Grasso v Angerami, 79 NY2d 813 [1991]). Further, the affidavit of plaintiff Lee's treating physician is insufficient to defeat movants' prima facie showing of their entitlement to summary judgment. Dr. Kim failed to sufficiently detail what objective medical tests he performed in determining that plaintiff Lee suffered from a loss of range of motion (Palasek v Misita, 289 AD2d 313 [2001]; Monaco v Davenport, 277 AD2d 209 [2000]). Nor did Dr. Kim specifically quantify plaintiff Lee's alleged loss of range of motion (Toure v Avis Rent A Car Sys., 98 NY2d 345). Further, no explanation was given for the almost three-year gap in treatment (see, Slasor v Elfaiz, 275 AD2d 771 [2000]). Finally, plaintiff Lee missed only one week of work after the accident and otherwise failed to establish that he sustained a medically determined injury which fell within the 90/180-day category of serious injury (see, Licari v Elliot, 57 NY2d 230 [1982]; Delpilar v Browne, 282 AD2d 647 [2001]).

Accordingly, the motion and cross motion for summary judgment dismissing the claims of plaintiff Lee are granted.

Dated:

J.S.C.