McMahon v Reclaim Collateral Corp.

[*1] McMahon v Reclaim Collateral Corp. 2004 NY Slip Op 51857(U) Decided on December 23, 2004 Supreme Court, Suffolk County Jones, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2004
Supreme Court, Suffolk County

Kevin McMahon, Plaintiff,

against

Reclaim Collateral Corp., STEVEN'S TOWING and STEVEN PALUMBO, Defendants.



008117/2002



Siben & Siben, LLP

By: Edward M. O'Connell, Esq.

Attys. for Plaintiff

90 East Main Street

Bay Shore, NY 11706

Mulholland, Minion & Roe

By: Ronald J. Morelli, Esq.

Attys. for Defendants

374 Hillside Avenue

Williston Park, NY 11596

John J.J. Jones, J.

ORDERED that this motion by defendants, Reclaim Collateral Corporation, Steven's Towing and Steven Palumbo, for an order granting summary judgment dismissing the complaint on the ground that the plaintiff, Kevin McMahon, did not sustain a "serious injury" within the meaning of NY Insurance Law § 5102(d) is granted and the complaint is hereby dismissed. [*2]

Plaintiff commenced this action to recover damages for personal injuries allegedly sustained on December 4, 2000 as the result of a motor vehicle accident. It is alleged in the bill of particulars that as a result of the accident, plaintiff sustained "[b]road based disc protrusions at L1-2 and L5-S1 with effacement of the thecal sac at said levels; aggravation and/or exacerbation of degenerative disc disease of the lumbar spine" for which he received treatment in a hospital emergency room. He was thereafter confined to bed and home for approximately 2 weeks. Defendants now move for an order granting summary judgment in their favor on the threshold issue; plaintiff has opposed the application.

In order to effectuate the purpose of no-fault legislation to reduce litigation, a court is required to decide, in the first instant, whether a plaintiff has made out a prima facie case of "serious injury" sufficient to satisfy the statutory requirements (Licari v Elliott, 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088 [1982]; Brown v Stark, 205 AD2d 725, 613 NYS2d 705 [2d Dept 1994]). If it is found that the injury sustained does not fit within the definition of "serious injury" under Insurance Law § 5102(d), then the plaintiff has no judicial remedy and the action must be dismissed (Licari v Elliott, supra , at 57 NY2d 238; Velez v Cohan, 203 AD2d 156, 610 NYS2d 257 [1st Dept 1994]). A "serious injury" is defined as a personal injury which "results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitutes such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102 [d]).

In support of the motion, defendants submitted the affirmed medical report of a neurologist who examined plaintiff on November 5, 2003, at which time he complained of low back pain and pain in the right posterior thigh. Upon examination, it was reported that he demonstrated "excellent range of motion of the neck and lower back" with no spasm, and that straight leg raising was negative. Details of a neurological exam were also reported and it was concluded that the examination was "totally normal" with no evidence of disability or need for treatment. In view of the foregoing, the defendants met their initial burden of establishing, as a matter of law, that the plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d) (see McKinney v Lane, 288 AD2d 274, 733 NYS2d 456 [2d Dept 2001], citing Gaddy v Eyler, 79 NY2d 955, 591 NE2d 1176, 582 NYS2d 990; Licari v Elliott, 57 NY2d 230, 441 NE2d 1088, 455 NYS2d 570).

In opposition to the motion, plaintiff submitted the report of a neurologist who examined him on December 3, 2001, at which time motor examination showed normal power and tone in the upper and lower extremities. While sensory examination showed decreased sensation in the upper half of the left calf, plaintiff's gait was normal. Range of motion testing reportedly showed that flexion of the lumbar spine was limited to 60 degrees, but straight leg raising was negative. A diagnosis of "lumbar spine, resolved" and "symptom exaggeration" was made. While the neurologist also [*3]referred to the unsworn report of an MRI of the lumbar spine dated January 16, 2001, she failed to state that she actually reviewed the film itself, as opposed to merely reading the narrative report (see Jeng-Jen Chen v Marc, 10 AD3d 295, 781 NYS2d 32 [1st Dept 2004]). Furthermore, the neurologist concluded that her examination did not show "any objective evidence of a neurological disability." In addition, while the plaintiff also submitted the report of an examining chiropractor, such report is not subscribed before a notary and, therefore, it does not constitute competent evidence (see CPLR 2106; see also Doumanis v Conzo, 265 AD2d 296, 696 NYS2d 201 [2d Dept 1999]).

Plaintiff has failed to successfully oppose defendant's motion by raising an issue of fact that she suffered a "serious injury" as defined in Insurance Law § 5102 (d) (see Claude v Clements, 301 AD2d 554, 756 NYS2d 57 [2d Dept 2003]; see also Weaver v Derr, 242 AD2d 823, 661 NYS2d 684 [3d Dept 1997]; Napoli v Cunningham, 273 AD2d 366, 710 NYS2d 919 [2d Dept 2000]; Vitale v Carson, 258 AD2d 647, 685 NYS2d 788 [2d Dept 1999]) and, accordingly, the motion is granted and the complaint is hereby dismissed.

DATED: December 23, 2004

HON. JOHN J.J. JONES, JR.

J.S.C.