Asante v Lewis

[*1] Asante v Lewis 2005 NY Slip Op 51485(U) [9 Misc 3d 1110(A)] Decided on July 21, 2005 Civil Court, Bronx County Guzman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2005
Civil Court, Bronx County

Prince Asante, Plaintiff,

against

Christine Lewis, CHIANTI LEWIS, ARTHUR BRISSETT, JEANNE FEQUIERE, and CARLOS BELTCE, Defendants.



1339/01

Wilma Guzman, J.

The defendants' motions for summary judgment in their favor as against the plaintiff based upon Insurance Law § 5104 are hereby granted and the plaintiff's complaint is hereby dismissed. Accordingly, the plaintiff's cross-motion is denied.

[*2]RELIEF REQUESTED

Pursuant to C.P.L.R. § 3212, the defendants seek summary judgment dismissing the plaintiff's complaint on the grounds that he did not sustain a "serious injury" within the meaning of the no-fault law as defined in Insurance Law § 5102(d) as a result of the underlying vehicular accident and, therefore, is barred by Insurance Law § 5104 from maintaining this action for recovery of non-economic loss. The plaintiff cross-moves for an Order granting summary judgment in his favor on the issue of "serious injury" and for an award of the costs of his cross-motion.

BACKGROUND

The plaintiff commenced this action alleging that he sustained a serious injury as defined in Insurance Law § 5102(d) as a result of an automobile accident on August 3, 1996 caused by the defendants' negligence. The affirmative defenses asserted by the defendants in their respective Answers include the defense that the plaintiff cannot maintain this action for his failure to sustain a statutory "serious injury" as a result of this accident. This motion is timely since it does not appear that a Notice of Trial has been filed placing this action upon the court's trial calendar.In his Bill of Particulars, the plaintiff alleges that he sustained the following injuries as a result of this accident:

Internal derangement of the cervical and lumbar spine; cervicobrachial radiculopathy; spinal cord impingement at C3-C4 and C4-C5; cervical and lumbosacral sprain/strain; cervical and lumbar spasms; tenderness over the cervical musculuture; central spinal canal stenosis at C3-C4, C4-C5 with spondylosis; foraminal stenosis at C3-C4, C4-C5; reversal of the normal cervical lordosis; aggravation of (unspecified) pre-existing condition; limitation of motion of the cervical spine and lumbosacral and dorsolumbar regions; severe neck pain; straightening of the normal lordotic curvature; lumbar radiculitis; end plate scalloping of L3, L4, and L5; severe lower back pain; bi-frontal headaches; and unspecified injuries to internal body parts.

The plaintiff claims that these injuries are serious and permanent in nature. It does not appear that the plaintiff was treated at a hospital.

STANDARD OF REVIEW

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. see, Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (NY 1986) and Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (NY 1985) Summary judgment is a drastic remedy that deprives a litigant of his or her day in Court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the

evidence submitted and the papers will be scrutinized carefully in a light most favorable to non- moving party. see, Assaf v. Ropog Cab Corp., 153 AD2d 520, 544 NYS2d 834 (1st Dept. 1989). It is well settled that issue finding, not issue determination, is the key to summary judgment. see, Rose v. Da Ecib USA, 259 AD2d 258, 686 NYS2d 19 (1st Dept. 1999). Summary judgment will only be granted if there are no material, triable issues of fact. see, Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 144 NE2d 387, 165 NYS2d 498 (NY 1957)

Under the no-fault law, a plaintiff can maintain an action for non-economic loss, including [*3]pain and suffering, arising from a motor vehicle accident only if the accident caused a serious injury. see, Licari v Elliot, 57 NY2d 230 (NY 1982). In the present action, the burden rests upon the defendants to establish, by the submission of evidentiary proof in admissible form, that the plaintiff has not sustained a serious injury. see, Lowe v. Bennett, 122 AD2d 728, 511 NYS2d 603 (1st Dept. 1986), affirmed, 69 NY2d 701, 512 NYS2d 364 (NY 1986) When the movants have made such a showing, the burden shifts and it then becomes incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury. see, Licari, supra , and Lopez v. Senatore, 65 NY2d 1017, 494 NYS2d 101 (NY 1985)

MOVANTS' BURDEN

In support of their motions, the defendants submit the report of Daniel J. Feuer, M.D., a neurologist retained by the defendants to conduct an examination of the plaintiff on September 26, 2002. Dr. Feuer's examination found the plaintiff's cervical and lumbosacral spine to be without spasm. Range of motion of the cervical spine was found to be full. Straight leg raising was negative bilaterally in the sitting position. Full power was noted in all muscle groups of the upper and lower extremities. Dr. Feuer concluded that there were no objective deficits regarding the nervous system and that motor, reflex, and sensory examinations were all within normal limits. He opined that the plaintiff is able to engage in the full activities of daily living without restriction.

In addition, the defendants submit the report of Andrew B. Weiss, M.D., an orthopedist who was retained by the defendants to examine the plaintiff on March 19, 2002. Dr. Weiss' examination revealed full active range of motion in all planes of the cervical and lumbosacral spine without muscle spasm. Both shoulders and hips also exhibited a full range of active motion with normal muscle strength. Straight leg raise tests were found to be negative bilaterally. Dr. Weiss concluded that there are no residuals related to this accident and no evidence of permanence. He opined that the plaintiff may participate in all activities of daily living and employment without restrictions and requires no further testing or treatment.

The defendants also submit a report from Frank J. Garofalo, M.D., revealing the findings made by radiographic examination of the plaintiff's cervical and lumbosacral spine apparently taken in August 1996. Dr. Garofalo is a radiologist who apparently took diagnostic films of the plaintiff upon referral by his own physician. These films are said to show straightening of the normal spinal curve, posterior narrowing at C3-C4, end plate scalloping, and, notably, degenerative arthritic changes at both the cervical and lumbosacral spine. The defendants highlight these degenerative findings by the plaintiff's own physician as proof of the plaintiff's lack of serious injury.

In addition, the defendants submit records of Hal S. Gutstein, M.D., a neurologist who appears to have treated the plaintiff. These records reveal that electromyography and nerve conduction studies were normal at the plaintiff's upper and lower limbs, lumbosacral spine, and cervical paraspinal muscles.

Finally, the defendants submit the plaintiff's deposition transcript purportedly showing that the plaintiff's curtailment of activities attributed to the subject injuries do not rise to satisfy the Insurance Law.

The defendants contend that these submissions satisfy their initial burden of proof.

PLAINTIFF'S EVIDENCE OF MATERIAL ISSUE OF FACT[*4]

The plaintiff not only opposes the defendants' motion, but seeks an Order that the plaintiff did, in fact, sustain a qualifying serious injury as a matter of law.

In opposition to the motions, the plaintiff submits his own affidavit essentially reciting his claimed injuries and residual effects and setting forth his general claim that he can no longer exercise or participate in recreation, engage in full sexual activity, that he is prevented from sleeping, doing household chores, and socializing. He admits that he continues to drive a taxicab as a means of employment, although with interim breaks. The plaintiff notes that he was involved in a prior motor vehicle accident, but had substantially recovered from those injuries at the time of the subject accident. Also, the plaintiff admits to being involved in another accident the year after the subject accident.

In addition, the plaintiff submits the affidavit of Ivan Milit, a chiropractor who treated the plaintiff for the injuries allegedly sustained in the subject accident. Although Dr. Milit's affidavit refers to his medical reports, no such reports are provided. These prior examinations are simply said to have revealed "markedly" and abnormal restricted range of motion of the plaintiff's neck and back. Dr. Milit does recite the specific findings made by examination on August 19, 2003, some seven years following the accident. During that examination, Dr. Milit found restricted range of motion in multiple planes of both the plaintiff's neck and back, which Dr. Milit quantifies in comparison to the normal degree. He also found muscle spasms at several levels of the cervical and lumbar spine. Finally, Dr. Milit elicited positive testing on a straight leg raising test, Soto Hall test, and foraminal compression test, each indicative of nerve root irritation.

Although Dr. Milit states that he has treated the plaintiff since the subject accident, he only references a report of January 27, 1998, one and one-half years after the accident. His diagnosis is of cervical and lumbar radiculopathy and restriction of motion of the cervical spine.

Dr. Milit also correlates the findings revealed in the films referenced by the defendants to the plaintiff's subjective complaints. Dr. Milit acknowledges the plaintiff's prior accident, but asserts that he had recovered, for the most part, by the time of the subject accident. Similarly, he acknowledges the plaintiff's subsequent accident and states that the plaintiff had minimal improvement from the complaints arising from the subject accident at the time of his subsequent accident. Dr. Milit concludes that the plaintiff sustained a severe and permanent injury to his cervical and lumbar spines as a result of the subject accident.

The plaintiff contends that the submissions not only raise an issue of material fact with respect to the issue of "serious injury," but mandate a finding that, as a matter of law, the plaintiff has indeed sustained a statutory serious injury as a result of this accident.

APPLICABLE LAW

Insurance Law §5102(d) provides as follows:

""Serious injury" means 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 limitations 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 constitute such person's usual and customary daily activities for not less [*5]

than ninety days during the one hundred eighty days immediately following the

occurrence of the injury or impairment."

In support of a claim that the 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 the plaintiff's examining physician. Pagano v. Kingsbury, 182 AD2d 268, 587 NYS2d 692 (2nd Dept. 1992) Once the burden shifts, it is incumbent upon the plaintiff, in opposition to defendant's motion, to submit proof of serious injury in admissible form. Unsworn reports of the plaintiff's examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment. see, Charlton v. Almaraz, 278 AD2d 145, 718 NYS2d 52 (1st Dept. 2000) and Graham v. Shuttle Bay, Inc., 722 NYS2d 541 (1st Dept. 2001) A medical affirmation or affidavit based upon a physician's personal examination and observations of the plaintiff is an acceptable method to set forth a doctor's opinion regarding the existence and extent of a plaintiff's serious injury. O'Sullivan v. Atrium Bus Co., 246 AD2d 418, 668 NYS2d 167 (1st Dept. 1998) Unsworn MRI reports are not competent evidence unless both sides rely on those reports. see, Gonzalez v. Vasquez, - NYS2d , 2003 WL 139756, 2003 NY Slip Op. 10309 (1st Dept. 2003) and Ayzen v. Melendez, 749 NYS2d 445, 2002 NY Slip Op. 08111 (2nd Dept. 2002) However, in order 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.

The diagnosis and conclusions set forth in the affirmation opposing the motion cannot rely upon the physician's review of unsworn medical reports prepared by other physicians. see, Domingues-Gionta v. Smith, 306 AD2d 432, 761 NYS2d 310 (2nd Dept. 2003), Philippe v. Ivory, 297 AD2d 666, 747 NYS2d 184 (2nd Dept. 2002), and Merisca v. Alford, 243 AD2d 613, 663 NYS2d 853 (2nd Dept. 1997).

In any event, the findings must demonstrate that plaintiff sustained at least one of the categories of "serious injury" enumerated in Insurance Law section 5102(d). see, Marquez v. New York City Transit Authority, 259 AD2d 261, 686 NYS2d 18 (1st Dept. 1999) and DiLeo v. Blumberg, 250 AD2d 364, 672 NYS2d 319 (1st Dept. 1998) For example, a medical affidavit which demonstrated that the plaintiff's 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. A physician's observation of actual limitations qualifies as objective evidence where it is based on the physician's own examinations. A diagnosis of a herniated or bulging disc, by itself, does not constitute a serious injury. see, Noble v. Ackerman, 252 AD2d 392, 675 NYS2d 86 (1st Dept. 1998)

It must be noted, however, that not all deficiencies in a plaintiff's claim of serious injury can be cured by a physician's sworn conclusory statement. Clearly, a physician's affidavit which is premised on little more than plaintiff's subjective complaints is insufficient to establish a prima facie case of serious injury. see, Sulimanoff v. Ash Trans Corp., 259 AD2d 415, 687 NYS2d 146 (1st Dept. 1999), Grossman v. Wright, - AD2d , 707 NYS2d 233 (2nd Dept. 2000), and Villalta v. Schechter, 710 NYS2d 87 [2nd Dept. 2000). The same is true for mere conclusory statements contained in sworn statements provided by the defendant's physician. see, Winegrad v. New York Univ. Medical Center, supra Clearly, unaffirmed, unsworn, and/or unsigned reports are deficient. [*6]see, Henkin v. Fast Times Taxi, Inc., 2003 WL 21805797 (1st Dept. 2003)

When a claim is raised under the "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 constitute 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," it can be substantiated by a chiropractic expert's designation of the numeric percentage of the loss of range of motion showing the extent or degree of the plaintiff's physical limitation or by an expert's qualitative assessment, upon an objective basis, of a plaintiff's condition compared to the normal function, purpose and use of the affected body organ, member, function or system. see, Toure v. Avis Rent A Car Systems, 98 NY2d 345, 774 NE2d 1197, 746 NYS2d 865 (NY 2002), Lopez v. Senatore, 65 NY2d 1017, 484 NE2d 130, 494 NYS2d 101, (NY 1985), and Ramos v. Dekhtyar, 301 AD2d 428, 753 NYS2d 489 (1st Dept. 2003) The expert is to indicate what objective medical tests he performed to measure the range of motion restrictions at the risk of failing to demonstrate the extent or degree of the alleged limitations and their duration. see, Lentini v. Melina, 287 AD2d 550, 731 NYS2d 233 (2nd Dept. 2001).

Of course, the plaintiff's own affidavit which merely relates subjective complaints of pain, is likewise insufficient to defeat a defendant's motion for summary judgment Almonacid v. Meltzer, 222 AD2d 631, 635 NYS2d 690 (2nd Dept. 1995) An affidavit from the injured party setting forth qualitative limitations attributed to the accident is insufficient to defeat summary judgment absent support by a physician's affidavit substantiating the impairment and relating it to the accident. see, Arrowood v. Lowinger, 294 AD2d 315, 742 NYS2d 294 (1st Dept. 2002)

DISCUSSION AND ANALYSIS

The plaintiff's contention that the defendants have failed to make out a prima facie case that the plaintiff did not sustain a serious injury is unavailing. The defendants' physicians set forth the tests they performed in arriving at their respective conclusions, including the straight leg raising test acknowledged in plaintiff' s counsel's affirmation and utilized by the plaintiff's own chiropractor. The plaintiff's contention that the physicians fail to list any degree of range of motion in comparison to the norm is unavailing, since each of the physicians specifically states that the plaintiff possesses full, i.e., 100%, range of motion.

The plaintiff's argument that the reports of the defendants' physicians ought to be disregarded because they do not contain the "affirm" language is unavailing. An affirmation is simply a declaration; the significant factor is that the statement is said to be true under the penalties of perjury, such that the affirmant can be held to those statements. The physicians' reports submitted in support of the motions are made under the penalties of perjury and can be used against the declarant at trial; it is this viable purpose and use which renders the reports properly considered. see, Slavenburg Corporation v. Opus Apparel, Inc., 53 NY2d 799, 439 NYS2d 910, 422 NE2d 570 (NY 1981) ("the affirmation would be of no probative value because the affirmant would not be answerable for the crime of perjury should he make a false statement")

The defendants have established with evidentiary proof in admissible form that the plaintiff has not sustained a serious injury under the aforementioned section. The physicians' affirmations detail the objective measures used in reaching their conclusions. Upon this showing, the burden [*7]shifts to the plaintiff to present sufficient evidence, in admissible form, that raises a triable issue of fact that he sustained a serious injury. see, Gaddy v. Eyler, 79 NY2d 955, 582 NYS2d 990, 591 NE2d 1176 (NY 1992)

The plaintiff argues that he meets the serious injury threshold by way of deficits of range of motion revealed by tests taken in a contemporaneous examination. However, the cases cited by the plaintiff in support, such as Castro v. Frias, 2001 NY Slip Op. 50105, 2001 WL 1722883 (App. Term, 1st Dept. 2001) involved examinations and diagnoses taken within months of the subject accident or incorporate admissible prior medical records. The affidavit submitted in opposition to the motion fails to set forth, in admissible form, any proof of any range of motion limitations during the more than seven year period between the subject accident and the examination by the affiant. The only restrictions are drawn from an examination conducted some seven years after the accident. There is no admissible medical proof contemporaneous with the accident that demonstrates any initial range of motion restrictions or a serious injury. The plaintiff's opposition to the instant motion hinges on the examinations and conclusions of a chiropractor who examined the plaintiff some six years following the accident and who relies, impermissibly, on examinations and omitted reports of other doctors. The plaintiff failed to submit any objective evidence of range of motion restrictions or of a diagnosis of "serious injury" and causation existing prior to the time of the re-examination in 2003.

On this record, the plaintiff's chiropractor's opinion that the plaintiff's injuries are causally related to the subject accident is speculative and conclusory. There is no competent, objective medical evidence to establish that there is a causal connection between the plaintiff's condition on the date of the chiropractor's examination and the accident some seven years earlier. His opinion is insufficient to raise a triable issue regarding the existence of a statutory "serious injury" that can be traced to the subject accident. This conclusion is more compelling given the normal findings made earlier in time by not only the defendants' physicians, but by also by Dr. Gutstein.

In Vaughan v. Baez, 305 AD2d 101, 758 NYS2d 648 (1st Dept. 2003), the First Department affirmed a grant of summary judgment, concluding that the trial court correctly found that the opinion of causation made by the plaintiff's expert based upon examinations conducted years after the accident was speculative and insufficient to causally connect the alleged injuries to the subject accident. Similarly, in Shinn v. Catanzaro, - - - NYS2d - - - , 2003 WL 22707789, the First Department found that summary judgment could not be precluded by an expert's opinion of causation where the diagnosis was made some five years after the accident. see also, Melendez v. Feinberg, 306 AD2d 98, 759 NYS2d 869 (1st Dept. 2003) ("In light of the unexplained lapse of more than three years without treatment, plaintiff's expert' s opinion was insufficient to raise a triable issue as to the existence a statutory "serious injury.") and Woodard v. Prothro, 2002 WL 31119913 (App. Term, 1st Dept. 2002) ("[T]he [plaintiff's] reports, based upon examinations and testing years after the accident, fail to provide a basis for finding that plaintiff sustained a serious injury.") In the absence of medical proof in admissible form that was contemporaneous with the subject accident and that shows any initial range of motion restrictions, summary judgment will be granted. see, Jason v. Danar, - - - NYS2d - - -, 2003 WL 22679937 (2nd Dept. 2003), Ifrach v. Neiman, 306 AD2d 380, 760 NYS2d 866 (2nd Dept. 2003), Pajda v. Pedone, 303 AD2d 729, 757 NYS2d 452 (2nd Dept. 2003), and Lentini v. Melina, 287 AD2d 550, 731 NYS2d 233 (2nd Dept. 2001) (summary judgment granted where there "was no proof of any range of motion restrictions during the five-year period of [*8]time between the accident and that initial examination.")

This analysis has been given recent application by the Appellate Term, First Department, in the cases of Baker v. Filpo (Given the lack of evidence of injury in the near aftermath of the accident, the affirmation of plaintiff's physician, after a four year gap in treatment, concluding that plaintiff had a "permanent and significant" loss of movement and disability, is plainly insufficient.") and Barrow v. Budhu ("Plaintiff's doctor's affirmation was insufficient to defeat summary judgment, as it was made after a seven year gap in treatment. . . "). see, N.Y.L.J., March 25, 2004, p. 30, cols. 1, 2.

In any event, Dr. Milit diagnosed restricted motion only in the cervical spine and not in the lumbosacral spine. Findings that a plaintiff sustained a "2-4% impairment of the whole person, a 5-10% impairment of the lower limb and 7-14% impairment of the ankle" were held to be insufficient to qualify as a "'significant' or 'important' limitation of use." Arrowood v. Lowinger, 294 AD2d 315, 742 NYS2d 294 (1st Dept. 2002) In addition, a 10% restriction of extension and/or rotation was found to be insufficient to qualify as a significant or important limitation of use. Bandoian v. Bernstein, 254 AD2d 205, 679 NYS2d 123 (1st Dept. 1998) No evidence specifically revealed the extent of the limitations to be more than mild or moderate. see, Sigona v. New York City Transit Authority, 255 AD2d 231, 680 NYS2d 228 (1st Dept. 1998) and Burnett v. Zito, 252 AD2d 879, 676 NYS2d 318 (3rd Dept. 1998)

CONCLUSION

Considered in the light most favorable to the plaintiff, the evidence adduced is insufficient to raise a material issue of fact as to whether he sustained a serious injury as defined in the Insurance Law as a result of the subject accident. Therefore, summary judgment is hereby granted in favor of the defendants as against the plaintiff and the plaintiff's complaint is hereby dismissed. Accordingly, the plaintiff's cross-motion is denied.

This constitutes the decision and Order of this Court.

July 21, 2005

DATEDHON. WILMA GUZMAN

J.C.C.