Brown v Osmani

[*1] Brown v Osmani 2007 NY Slip Op 50509(U) [15 Misc 3d 1105(A)] Decided on March 16, 2007 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2007
Supreme Court, Richmond County

Kevin Brown, Plaintiff,

against

Naser Osmani and Burim Osmani, Defendants.



12175/04

Philip G. Minardo, J.

Upon the foregoing papers, defendants' motion for summary judgment dismissing the complaint on the grounds that plaintiff has not sustained a "serious injury" within the meaning of Insurance Law §5102(d) is granted.

This is an action for personal injuries allegedly sustained by plaintiff in a motor vehicle accident that occurred on May 31, 2002 in Staten Island, New York.

As the proponents of summary judgment, defendants have met their initial burden of establishing that none of plaintiff's injuries are "serious" within the meaning of Insurance Law §5102(d) by submitting the affirmed report of Dr. Joseph Y. Margulies, an orthopedic surgeon (Defendants' Exhibit "D"), who reviewed plaintiff's hospital records, as well as the CAT Scans and

x-rays taken on May 31, 2002 and June 2, 2006, respectively. Dr. Margulies also conducted an independent orthopedic examination of plaintiff on April 19, 2006, and concluded that plaintiff displayed a full active cervical spine and lumbar spine range of motion, with no residual orthopedic findings noted. Defendant has also annexed the report of Dr. R.C. Krishna, M.D. (Defendants' Exhibit "E"), a board certified neurologist who examined plaintiff on May 10, 2006, and concluded that plaintiff "may have sustained a cervical and lumbar strain injury... but this is resolved and does not require any further diagnostic testing or treatment."Dr. Krishna also reported "no objective evidence of a disability from a neurological standpoint concerning activities of daily living."

Accordingly, the burden has shifted to plaintiff to come forward with sufficient admissible evidence to raise a triable question of fact that a serious injury was sustained (see Franchini v Palmieri 1 NY3d 536). [*2]

In an attempt to sustain this burden, plaintiff has submitted the affidavit of Dr. Edwin Kasten (Plaintiff's Exhibit "I"), a chiropractor who treated plaintiff from June 10, 2002 until November 4, 2002. Plaintiff was next examined by Dr. Kasten approximately four years later on November 8, 2006, at which time he found mild and slight restrictions in plaintiff's cervical spine along with marked severe restrictions of the lumbar spine. In the opinion of Dr. Kasten, plaintiff's injuries are causally related to the May 13, 2002 accident. Plaintiff has also submitted an unaffirmed MRI report by Dr. Robert D. Solomon, a board certified radiologist, who noted, inter alia a C3-C4 sub-ligamentous herniation of the cervical spine with bone impingement.

Plaintiff has failed to sustain his burden of proof.

Neither plaintiff nor his chiropractor has attempted to explain the four- year gap in treatment between November, 2002 and the November, 2006 physical examination that was apparently conducted in response to the defendants' summary judgment motion (see Chan v CasianoAD3d_, 2007 NY Slip Op 00108; see also D'Alba v Yong-Ae Choi, 33 AD3d 650). Thus, any opinion as to causation offered by Dr. Kasten in 2006 constitutes pure speculation (cf. Pommels v Perez, 4 NY3d 566, 575). Moreover, even assuming arguendo that Dr. Solomon's finding is properly before the Court, the reported herniation of plaintiff's cervical spine is alone insufficient to constitute a serious injury (see Hernandez v Taub, 19AD3d 368).

Lastly, plaintiff failed to submit any competent medical evidence that the injuries he sustained in the accident rendered him unable to perform substantially all of his usual daily activities for not less than 90 of the first 180 days subsequent to the accident (see Cervino v Gladysz-Steliga,AD3d , 2007 NY Slip Op 00477).

Accordingly, it is hereby

ORDERED, that defendants motion for summary judgment is granted and the complaint dismissed; and it is further

ORDERED, that the Clerk shall enter judgment in accordance herewith.

ENTER,

/s/ Hon. Philip G. Minardo

J S C

Dated: March 16, 2007

md