Sta Ana v Sanandres

[*1] Sta Ana v Sanandres 2007 NY Slip Op 51417(U) [16 Misc 3d 1114(A)] Decided on July 25, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 25, 2007
Supreme Court, Richmond County

Herr Nathan Sta Ana and Nailah Sta Ana, Plaintiffs,

against

Socrates Sanandres and Stella Sanandres, Defendants.



101233/05

Philip G. Minardo, J.

Defendants move for an order granting them summary judgment against plaintiffs dismissing the complaint in that Plaintiffs have failed to demonstrate the existence of a serious injury, pursuant to Insurance Law §5102. Plaintiffs oppose the instant motion asserting that defendants have failed to establish prima facie entitlement to summary judgment and that issues of fact preclude summary judgment.

For the reasons that follow hereinafter defendant's motion to dismiss is granted.

Plaintiff Herr Nathan Sta Ana (hereinafter "Plaintiff") has brought this action to recover monetary damages for injuries he allegedly suffered on April 27, 2002, following a motor vehicle accident on Richmond Avenue at or near its intersection with Victory Boulevard, County of Richmond, City and State of New York. Plaintiff Nailah Sta Ana alleges a cause of action based on loss of services. Plaintiff Herr Nathan Sta Ana contends that at approximately 9:50 am he was riding his bicycle on Richmond Avenue crossing the intersection of Victory Boulevard, when defendant's vehicle traveling in the opposite direction was making a left hand turn onto Victory Boulevard. As indicated in the Bill of Particulars, Plaintiff claims to have sustained "serious" personal injuries through "permanent loss of a body organ, member, function or system; permanent consequential limitation of the use of a body organ or member; significant limitation of a body function or system; and a medically determined injury or impairments of a non-permanent nature which prevents him from performing substantially all of the material acts which constitute his usual and customary daily activities that were not less than 90 days during the 180 days immediately following this occurrence." Among the injuries which plaintiff alleges as a result of this accident are moderate AC arthrosis with fluid in the AC joint and a small inferior spur probably impinging upon the rotator cuff, central C3-4 and C5-6 disc protrusions.

In support of their motion for summary judgment, defendants have submitted the May 16, 2006 affirmation of an orthopedist, Dr. Robert Israel, who examined plaintiff and found "no casually related disability as a result of accident." Dr. Israel also found that no spasms were present, and that the sprains of the cervical spine, lumbar spine and right shoulder have resolved. Finally, Dr. Israel determined that the Plaintiff's cervical and lumbar ranges of motion were normal specifying the specific degrees and comparing them to normal. Dr. Israel further found that the Plaintiff does not require further orthopedic or physical therapy treatment. Also submitted is the May 19, 2006 affirmation of a neurologist, Dr. Michael J. Carciente, who concluded that the Plaintiff had a normal neurological examination and found no evidence of neurological injury or disability.

In opposition, plaintiff argues that his injuries are "serious" within the meaning of Insurance Law §5102(d), and attaches his own April 12, 2007 affidavit in which he outlines his present complaints. [*2]Plaintiff also attaches the May 24, 2007 affidavit of an orthopedist, Dr. Charles DeMarco, whose first treatment of the Plaintiff occurred on January 22, 2007 some four and one half years post accident. Dr. DeMarco found that the Plaintiff had a loss of mobility and a limited range of motion giving specific degrees and comparison to normal. Further, Dr. DeMarco reviewed the Plaintiff's MRI films however; he failed to share his findings. Finally, Dr. DeMarco concluded that Plaintiff's injuries were causally related to the April 27, 2002 accident. Also attached are the medical reports of three radiologists, Matthew J. Stern, M.D., Ronald S. Wagner, M.D., and Ronald A. Manfredi, M.D., each of whom attests that the MRIs taken were normal. However, these MRI reports are unsworn and therefore inadmissible. (see Scaccia v. Degener, 207 AD2d 599 [3rd Dept. 1994] (holding that an unsworn medical report of a physician is hearsay and therefore inadequate to support a motion for summary judgment)).

This court finds the affirmed medical reports of defendant's orthopedist and neurologist supports their initial burden of proof making a prima facie showing that the plaintiff did not suffer a serious injury pursuant to Sections 5102(d) of the Insurance Law. (see Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]). In order for an injury to "qualify as a serious injury within the meaning of the statute, permanent loss of use' must be total." (Oberly v Bangs Ambulance, 96 NY2d 295 [2001]). The affirmed medical reports of defendant's orthopedist and neurologist demonstrate that the Plaintiff did not suffer a total permanent loss of use. Accordingly, this category of permanent loss of use is stricken from the complaint. With respect to the 90/180 category, defendants met their initial burden by submitting excerpts of Plaintiff's deposition testimony wherein plaintiff admitted that he only missed approximately two weeks of work after the accident. Plaintiff's testimony undermined his claim that his injuries prevented him from performing substantially all of the material acts constituting his daily customary activities during at least 90 out of the first 180 days following the accident. (see Robinson v. Polasky, 32 AD2d 1215 [4th Dept. 2006]; Hasner v. Budnik, 35 AD3d 366 [2nd Dept. 2006]).

Considered in the light most favorable to the plaintiff, this Court finds the evidence adduced by Plaintiff nevertheless is insufficient to raise a material issue of fact as to whether he sustained a serious injury as defined in Insurance Law §5102(d). Plaintiff failed to submit any medical proof that was contemporaneous with the accident showing any initial range of motion restrictions in his spine. (see Ifrach v. Neiman, 306 AD2d 380 [2nd Dept. 2003]; Nemchyonok v. Ying, 2 AD3d 624 [2nd Dept. 2006]). His only admissible evidence was an affidavit of an orthopedist who examined him four and one half years after the accident. This affirmation failed to provide any explanation for the significant gap between the Plaintiff's initial treatment and this examination. (see Nemchyonok v. Ying, supra). Finally, this Court finds Dr. DeMarco's findings that Plaintiff's current injuries are casually related to the subject accident are a product of mere speculation. (see Bell v. Rameau, 29 AD3d 839 [2nd Dept. 2006]; Yeung v. Rojas, 18 AD3d 863 [2nd Dept. 2005]).

Accordingly, it is

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

ORDERED, that the Clerk of the Court enter judgment accordingly.

E N T E R,

Dated: July 25, 2007/s/J S C