Uzilov v Jimenez

[*1] Uzilov v Jimenez 2005 NY Slip Op 50174(U) Decided on February 18, 2005 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 18, 2005
Supreme Court, Kings County

TIMUR UZILOV, Plaintiff

against

JULIO E. JIMENEZ AND JON ERIK JIMENEZ, Defendants



8542/03



Plaintiff by

Freidman & Associates

Brooklyn NY

Defendant by

Diamond Cardo King Peters & Fodera

New York NY

Arthur M. Schack, J.

Defendants' "threshold" motion for summary judgment and dismissal of plaintiffs case for failure to meet the "serious injury" standard of Insurance Law § 5102 (d) is granted.

In Toure v Avis Rent A Car Systems, Inc., et. al., 98 NY2d 345, (2002), the Court of Appeals instructed, at 350-351, that:

This Court has long recognized that the "legislative intent underlying the

No-Fault Law was to weed out frivolous claims and limit recovery to

significant injuries" (Dufel v. Green, 84 NY2d 795, 798 [1995]; see

also Licari v. Elliott, 57 NY2d 230, 234-235 [1982] As such, we

have required objective proof of a plaintiff's injury in order to satisfy the

statutory serious injury threshold (see e.g. Dufel, 84 NY2d at 798;

Lopez v. Senatore, 65 NY2d 1017, 1020 [1985]; subjective complaints

alone are not sufficient (see e.g. Gaddy v. Eyler, 79 NY2d 955, 957-

958 [1992]; Scheer v. Koubek, 70 NY2d 678, 679 [1987]).

In order to prove the extent or degree of physical limitation, an [*2]

expert's designation of a numeric percentage of a plaintiff's loss of range

of motion can be used to substantiate a claim of serious injury (see e.g.

Dufel, 84 NY2d at 798; Lopez, 65 NY2d at 1020). An expert's

qualitative assessment of a plaintiff's condition also may suffice, provided

that the evaluation has an objective basis and compares the plaintiff's

limitations to the normal function, purpose and use of the affected body

organ, member, function or system (see Dufel, 84 NY2d at 798). By

contrast, an expert's opinion unsupported by an objective basis may be

wholly speculative, thereby frustrating the legislative intent of the No-

Fault Law to eliminate statutorily-insignificant injuries or frivolous claims.

Summary Judgment Standard

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3rd Dept 1981); Greenberg v Manlon Realty, 43 AD2d 968, 969 (2nd Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985). CPLR § 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979).

Discussion

In the instant case, defendants' motion for summary judgment makes a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case. The examination of plaintiff by Dr. Joseph Paul, defendants' orthopedist [exhibit C of motion], contains objective findings to reach Dr. Paul's conclusion that "claimant has no disability at this time," and that "there will be no permanency as a result of this accident." Further the interpretations of MRI films taken of the right knee, lumbar spine, and left ankle by Dr. Steven L. Mendelsohn [exhibits D, E and F of motion], a radiologist, conclude that these portions of plaintiff's body are normal.

This shifts the burden to the plaintiff to demonstrate the existence of triable issues of fact. Plaintiff in his opposing papers submits: the narrative report of Dr. Sofia Bentsianov [exhibit A of affirmation in opposition]; the MRI reports of Dr. Robert Solomon, a radiologist, with respect [*3]to plaintiff's lumbar spine and right knee [exhibit B of affirmation in opposition]; the report of Dr. Dante Trovato, an orthopedic surgeon, [exhibit C of affirmation in opposition]; and, plaintiff's affidavit [exhibit D of affirmation in opposition].

Dr. Bentsianov's narrative report fails to provide any objective evidence to support the diagnosis of a significant limitation. It only contains conclusions. The report does not meet the standard set in Toure, supra, at 350 of "objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold." See Sieradkzi v U.S. Express Leasing, 2004 NY Slip Op. 09618 (2nd Dept 2004); Maldonado v Li, 13 AD3d 344, 2004 NY Slip Op 09044 (2nd Dept 2004); Giannakis v Paschilidou, 212 AD2d 502 (2d Dept 1995). Further, Dr. Bentsianov incorporates the orthopedic findings of Dr. Andrew Weiss and the neurological findings of Dr. Yelena Ilina. Plaintiff's papers do not contain these reports. An affirmation of plaintiff's expert physician may not rely upon unsworn medical reports of other medical experts to arrive at his conclusions. Monaco v Davenport, 277 AD2d 209 (2d Dept 2000); Friedman v U-Haul Truck Rental, 216 AD2d 266 (2d Dept 1995); Pagano v Kingsbury, 182 AD2d 268 (2d Dept 1992).

Dr. Solomon's MRI interpretation finds a bulging disc at L5-S1. A bulging disc may constitute a serious injury pursuant to Insurance Law § 5102 (d) if the plaintiff provides "objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration." Espinal v Galicia, 290 AD2d 528, 528-529 (2d Dept 2002). Neither Dr. Bentsianov nor Dr. Trovato provides any objective findings with respect to the lumbar spine. In fact, Dr. Trovato, the last physician to examine plaintiff, makes no mention of complaints with respect to the lumbar spine.

Dr. Solomon's MRI interpretation of the right knee claims joint effusion and an "equivocal" tear of the posterior horn of the medical meniscus. Dr. Trovato's October 25, 2004 examination of plaintiff finds that the right knee "is slightly swollen, no effusion." With respect to the right knee's "equivocal" tear of the posterior horn of the medial meniscus the only objective tests performed by Dr. Trovato are all negative. Webster's New Collegiate Dictionary, defines "equivocal" as "subject to two or more interpretations and used to mislead or confuse." The website "medical-dictionary.com" defines "equivocal" as "having two significations equally applicable; capable of double interpretation'" and "uncertain as an indication or sign." Without any objective findings, Dr. Solomon's diagnosis of an "equivocal tear" has been used to "mislead or confuse" and is "uncertain." There is no objective evidence presented by plaintiff to sustain a prima facie showing of a right knee injury within the meaning of Insurance Law § 5102 (d). Espinal v Galicia, supra.

Plaintiff's self-serving affidavit fails to address plaintiff's alleged limitations in the first 180 days after the accident. There must be proof presented that substantially all of plaintiff's activities were curtailed for at least 90 of the 180 days following the occurrence. Gaddy v Eyler, 79 NY2d 955, 958 (1992). Plaintiff's affidavit fails to detail what his usual activities were and which of these activities were significantly curtailed as a result of his accident. Licari v Elliott, 57 NY2d 230, 238-239 (1982).

Conclusion

In the instant case, based upon the evidence submitted in the papers by both plaintiff and defendant, and viewing the evidence in the light most favorable to plaintiff, it is clear that there are no triable issues of fact. Plaintiff's alleged injuries and damages do not meet the "serious [*4]injury" threshold requirements of Insurance Law § 5102 (d).

Defendants' motion for summary judgment is granted.

This case is dismissed.

This constitutes the decision and order of the court.

__________________________________ Hon. Arthur M. Schack J.S.C.