Boyce v Rutledge

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[*1] Boyce v Rutledge 2008 NY Slip Op 52087(U) [21 Misc 3d 1117(A)] Decided on October 16, 2008 Supreme Court, New York County Wooten, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 16, 2008
Supreme Court, New York County

Alberta A. Boyce and MARIAN BARNES, Plaintiff,

against

Jerome Rutledge and DANIELLE McCULLOUGH, Defendants.



101628/04



Attorney for the Defendants:

Firm: Law Office of Robert P. Tusa

Address : 1 Metrotect Center, 19h Floor

Brooklyn, New York 11201

Attorney for the Plaintiffs

Firm : Sackstein Sackstein & Lee, LLP

Address : 1140 Franklin Avenue, Suite 210

Garden, New York 11530

Paul Wooten, J.



Plaintiffs, Alberta A. Boyce (Boyce) and Marian Barnes (Barnes), were respectively, the driver and passenger in a car allegedly involved in an automobile accident with defendants. Plaintiffs instituted this action alleging that, as a result of the car accident, they each suffered "serious injury" within the meaning of New York Insurance Law §§ 5102 and 5104. Defendants move for summary judgment pursuant to CPLR § 3212, alleging that plaintiffs have failed to establish that they have suffered a "serious injury" pursuant to Insurance Law § 5102 (d).

Pursuant to Insurance Law § 5102 (d), "serious injury" is defined, among other things, as the permanent loss 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. See Raffellini v State Farm Mutual. Automobile. Insurance. Co., 9 NY3d 196 (2007).

It is indisputable that five of the nine categories of serious physical injuries [*2]discussed by Insurance Law 5102 (d) are not applicable herein as there is no allegation of death, dismemberment, significant disfigurement, fracture, or loss of a fetus. Therefore, the court must determine if the injuries asserted by plaintiff constitute: (1) a permanent loss of use of a body organ, member, function, or system; (2) a significant limitation of use of a body function or system; (3) a permanent consequential limitation of use of a body function or system; and/or (4) 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 90 days during the 180 days immediately following the occurrence of the injury or impairment. (See plaintiff's Bill of Particulars, para 11, Ex. B, defendant's motion for summary judgement)

Plaintiff Boyce alleges that she suffered a cervical radiculopathy, disc bulge, sprain and headaches. She did not seek medical treatment immediately after the alleged accident, but went to a hospital emergency room two or three days later, and subsequently received treatment from a chiropractor. Boyce was last employed 25 years ago and receives SSI. Plaintiff Barnes alleges that she suffered disc herniation, disc bulge and headaches. She went to the hospital after the accident for neck and head complaints, and eventually was treated by the same chiropractor who treated Boyce. Barnes last worked 30 years ago and receives disability.

The plaintiffs' injuries asserted in this action, by themselves, do not constitute "serious injuries," unless it can be shown that the injuries resulted in the permanent loss of use of a body organ or member, or significantly limited the use of a body function or system. Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345 [2002](bulging disc alone is not a "serious injury"); Licaro v Elliott, 57 NY2d 230 [1982] (headaches alone are not "serious injury"); Navedo v Jaime, 32 AD3d 788 [1st Dept 2006](sprains, radiculopathy and herniated and bulging discs are not "serious injuries" without a showing of permanent disability resulting therefrom); Forte v Vaccaro, 175 AD2d 153 [2d Dept 1991], restriction of motion by itself is not a "serious injury.

SUMMARY JUDGEMENT STANDARD

The proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (JMD Holding Corp. v Congress Fin. Corp., 795 NY2d 502 [2005]; Alvarez v Prospect Hospital, 68 NY2d 320 [1986];Winegrad v New York Univ. Medical Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Santiago v Filstein, 35 AD3d 184, 185-186 [1st Dept 2006]; Thomas v Holzberg, 751 NY2d 433, 434 [1st Dept 2002]; Silverman v. Perlbinder, 762 NY2d 386[1st Dept 2003]). The failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Medical Center, supra ). The motion must be supported "by affidavit...from a person having knowledge of the facts, by a copy of the pleadings and by other available proof . . ." (CPLR § 3212 [b]). A conclusory affidavit, expressions of hope, unsubstantiated allegations or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's [*3]prima facie burden (Winegrad v New York Univ. Medical Center, supra ). A party may also demonstrate a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman v City of New York, supra ; Prudential Securities Inc. v Rovello, 692 NYS2d 67 {262 AD2d 172} [1st Dept 1999]).Where the proponent of the motion has made a prima facie showing, the burden then shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a triable issue of fact (Vermette v Kenworth Truck Co., 68 NY2d 714 [1986]; Zuckerman v City of New York, supra ; Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]; Forrest v Jewish Guild for the Blind, 765 NY2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in to sufficiently establish the existence of a "serious injury," which mandate's resolution by trial. If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978].

DISCUSSION

It is well settled that the " legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to serious injuries.'" (Toure v. Avis Rent-A-Car Sys., Inc., 98 NY2d 345, 350 [2002]quoting Dufel v. Greene, 84 NY2d 795, 798 [1995]) The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the courts which may decide the issue on a motion for summary judgment. (Perez v. Rodriguez, 25 AD3d 506, 507 [1st Dept 2006])In order to weed out frivolous claims, and limit recovery to significant injuries (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345 [2002]), the No-Fault Law precludes recovery for pain and suffering, and other non-economic loss, between covered persons, unless the plaintiff pleads and proves a "serious injury" (Insurance Law § 5104 [a]). The burden of proof on the threshold issue of whether a serious injury has been sustained is on the plaintiff (CPLR §§ 3016 [g], 3043 [a] [6]). However, on a defendants' motion for summary judgment, the motion papers must establish a prima facie case through evidence in admissible form that the plaintiffs' injuries are not serious within the meaning of Insurance Law § 5102 (d) (Baez v Rahamatali, 6 NY3d 868 [2006]).

Defendants' motion is supported by the pleadings, an affirmation of defendants' attorney, the affirmations and reports of two physicians, and the deposition testimony of plaintiffs. Although the motion does not include an affidavit of an individual with personal knowledge, courts have held that motions supported with the materials that accompany the instant motion are sufficient. Olan v Farrell Lines, Inc., 64 NY2d 1092 [1985]; see also Pagano v Kingsbury, 182 AD2d 268 [2d Dept 1992].

Defendants have submitted the medical report of Dr. Robert Israel, a physician, who performed independent orthopedic examinations of plaintiffs on March 16, 2007, six years after the alleged accident. According to Dr. Israel's affirmation, all of plaintiffs' ranges of motion were in the normal range, and each is capable of performing all normal functions. (See defendant's motion for summary judgement, Ex. G & H.) Defendants have also provided the affirmation and report of Dr. Allen Rothpearl, [*4]another physician, who reviewed Boyce's MRI and affirmed that there was no evidence of disc herniation or bulge.(See defendant's motion for summary judgement, Ex. G.)

Based on the foregoing, defendants have submitted evidence in legally admissible form to meet their prima facie burden, entitling them to summary judgment and a finding that plaintiffs have not sustained a "serious injury" within the meaning of Insurance Law § 5102 [d] (See, Gaddy v Eyler, 79 NY2d 955, 956-957[1992]; Shinn v Catanzaro, 1AD3d 195, 197 [1st Dept 2003]; Lowe v Bennett, 511 NYS2d 603 {122 AD2d 728} [1st Dept 1986], Affd, 69 NY2d 700 [1 Dept 1986]; Pagano v Kingsbury, 587 NYS2d 692 {182 AD2d 268} [2d Dept 1992]). Thus, the burden now shifts to plaintiffs to demonstrate evidentiary proof in admissible form to warrant the showing that a material question of fact exists to defeat defendants' motion. (See Zuckerman v City of New York, supra ; Forrest v Jewish Guild for the Blind, supra ; Oquendo v New York City Transit Authority, 246 AD2d 635 [2d Dept 1998].

In opposition,plaintiffs have submitted the following: the pleadings; an uncertified police accident report, uncertified hand written medical records from Norman Simpkins, Chiropractor, (See plaintiffs' affirmation and opposition Ex C, H and K), the unsworn or unaffirmed medical report of Dr. Gautam Sehgal's examination of Boyce on March 15, 2001 and Barnes on March 1, 2001; the unsworn or unaffirmed medical MRI reports of Dr. Stephan Zimm's February 21, 2001 examination of Boyce and his February 16, 2001 examination of Barnes; plaintiffs' affidavits and the affirmation of their attorney.

The Courts have unanimously held that a party may not use an unsworn medical report prepared by the parties' own physician on a motion for summary judgment (See Grasso v Angerami, 79 NY2d 813 [1991]; Offman v Singh, 813 NY2d 56 [1 Dept 2006]) Moreover, CPLR § 2106 ["requires a physician's statement be affirmed to be true under the penalties of perjury"]). Hence, Dr. Sehgal's and Dr. Zimm's reports and Chiropractor Simpkins, handwritten notes, fail and are inadmissible and cannot be considered on this motion.

In addition, Dr. Sehgal's unaffirmed reports fail to specify what objective tests, if any, were performed and it fails to set forth a sufficient description of the qualitative nature of the limitations based on the normal function, purpose and use of the body part. (Otero v. 971 Only U, Inc, 36 AD3d at 431; Vasquez v. Reluzco, 28 AD3d 365 [1st Dept 2006]). Moreover, he doesn't indicate whether he reviewed the unsworn MRI reports of Dr. Zimm.

Furthermore, the uncertified police accident report, submitted by the plaintiff has no probative value to indicate evidence of plaintiffs' alleged serious injury. The police officer who prepared the report was not an eyewitness to the accident, the report does not fall into a hearsay exception (See Ann Connors v Duck's Cesspoool Services, Ltd., 144 AD2d 329 [1 Dept 1988]) containing a parties admission concerning serious injury.

Plaintiffs have failed to submit any evidence in legally admissible form to counter defendants' arguments. They have not provided sworn medical statements, nor reports with the proper medical basis to support their conclusions, but only submit conclusory statements by plaintiffs' themselves, which are insufficient to rebut defendants' prima facie showing. Navedo v Jaime, supra . [*5]

Plaintiffs argue that, because their physician's unsworn report was referred to by defendants' physician, they do not have to submit an affirmation by their doctor. To support this proposition, they cite Navedo v Jaime, supra . However, plaintiffs mischaracterize what the Navedo court said. In Navedo, the court indicated that the unsworn medical reports of the plaintiff's physician referred to by the defendant's physician had probative value and were properly before the court. The court did not say that this negated the burden of the plaintiff to submit medical reports in a legally admissible form. Furthermore, in the instant case, defendants' physician did not refer to reports by plaintiffs' physician, but merely listed the report as a document with which he was provided.

Plaintiffs have also failed to provide any evidence that, as a result of the alleged accident, they were unable to perform all of their normal and customary activities for at least ninety days out of the one hundred eighty days subsequent to the injury. Plaintiffs, in their responses to the Bill of Particulars, merely state, in a conclusory fashion, that they were unable to perform their normal functions for the statutorily specified period. Conclusory statements tailored to meet the statutory definitions, standing alone, are insufficient to defeat a motion for summary judgment. See Bent v Jackson, 15 AD3d 46 [1st Dept 2005].

The court also notes that six years elapsed since plaintiffs were treated, and they offer no explanation for the gap in treatment. Although this gap is not dispositive, plaintiffs should have offered some explanation why treatment was not pursued. Pommells v Perez, 4 NY3d 566, 574 [2005].

Based on the foregoing, it is hereby

ORDERED that defendants' motion for summary judgment is granted and the complaint dismissed with costs and disbursements to defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Enter:

Dated:

Paul WootenJ.S.C.

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