Roberts v Smith
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Roberts v Smith 2013 NY Slip Op 30778(U) April 3, 2013 Supreme Court, Queens County Docket Number: 16978/11 Judge: Howard G. Lane Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE HOWARD G. LANE Justice IAS PART 6 ----------------------------------RODINA ROBERTS, Index No. 16978/11 Motion Date March 13, 2013 Plaintiff, -against- Motion Cal. No. 100 DONNY D. SMITH, Defendant. ----------------------------------- Motion Sequence No. 1 Papers Numbered Notice of Motion-Affidavits-Exhibits... Opposition............................. Reply.................................. 1-4 5-7 8-9 Upon the foregoing papers it is ordered that this motion by defendant for summary judgment dismissing the complaint of plaintiff, Rodina Roberts, pursuant to CPLR 3212, on the ground that plaintiff has not sustained a serious injury within the meaning of the Insurance Law § 5102(d)is decided as follows: This action arises out of an automobile accident that occurred on April 18, 2011. Defendant has submitted proof in admissible form in support of the motion for summary judgment, for all categories of serious injury. The defendant submitted, inter alia, affirmed reports from two independent examining and/or evaluating physicians (an orthopedic surgeon and a radiologist) and plaintiff s own verified bill of particulars. APPLICABLE LAW Under the "no-fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained (Licari v. Elliot, 57 NY2d 230 [1982]). 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 (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. 1 [* 2] New York Univ. Medical Center, 64 NY2d 851[1985]). In the present action, the burden rests on defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury" (Lowe v. Bennett, 122 AD2d 728 [1st Dept 1986], affd, 69 NY2d 701, 512 NYS2d 364 [1986]). When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury (Licari v. Elliot, supra; Lopez v. Senatore, 65 NY2d 1017 [1985]). In support of a claim that 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 plaintiff's examining physician (Pagano v. Kingsbury, 182 AD2d 268[2d Dept 1992]). Once the burden shifts, it is incumbent upon plaintiff, in opposition to defendant's motion, to submit proof of serious injury in "admissible form". Unsworn reports of plaintiff's examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment (Grasso v. Angerami, 79 NY2d 813 [1991]). Thus, a medical affirmation or affidavit which is based on a physician's personal examination and observations of plaintiff, is an acceptable method to provide a doctor's opinion regarding the existence and extent of a plaintiff's serious injury (O'Sullivan v. Atrium Bus Co., 246 AD2d 418 [1st Dept 1998]). Unsworn MRI reports are not competent evidence unless both sides rely on those reports (Gonzalez v. Vasquez, 301 AD2d 438 [1st Dept 2003]; Ayzen v. Melendez, 749 NYS2d 445 [2d Dept 2002]). However, in order to be sufficient 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. It must be noted that a chiropractor is not one of the persons authorized by the CPLR to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice (see, CPLR 2106; Pichardo v. Blum, 267 AD2d 441 [2d Dept 1999]; Feintuch v. Grella, 209 AD2d 377 [2d Dept 2003]). In any event, the findings, which must be submitted in a competent statement under oath (or affirmation, when permitted) must demonstrate that plaintiff sustained at least one of the categories of "serious injury" as enumerated in Insurance Law § 5102(d) (Marquez v. New York City Transit Authority, 259 AD2d 261 [1st Dept 1999]; Tompkins v. Budnick, 236 AD2d 708 [3d Dept 1997]; Parker v. DeFontaine, 231 AD2d 412 [1st Dept 1996]; DiLeo 2 [* 3] v. Blumberg, 250 AD2d 364 [1st Dept 1998]). For example, in Parker, supra, it was held that a medical affidavit, which demonstrated that the plaintiff's threshold 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. In other words, "[a] physician's observation as to actual limitations qualifies as objective evidence since it is based on the physician's own examinations." Furthermore, in the absence of objective medical evidence in admissible form of serious injury, plaintiff s self-serving affidavit is insufficient to raise a triable issue of fact (Fisher v. Williams, 289 AD2d 288 [2d Dept 2001]). DISCUSSION A. Defendant established a prima facie case that plaintiff did not suffer a "serious injury" as defined in Section 5102(d), for all categories. The affirmed report of defendant s independent examining orthopedic surgeon, Michael J. Katz, M.D., indicates that an examination conducted on July 30, 2012 revealed a diagnosis of: resolved cervical, thoracolumbosacral strain, and right shoulder contusion. He opines that her prognosis is excellent and she shows no signs or symptoms of permanence relative to the accident and relative to the muculoskeletal system. He further opines that she has full range of motion and is not disabled. Dr. Katz concludes that plaintiff is capable of her activities of daily living and her full time duty work as a group home counselor. The affirmed report of defendant s independent evaluating radiologist, Alan B. Greenfield, M.D. indicates that an MRI examination of the cervical spine taken on May 16, 2011 revealed a diagnosis of: normal cervical lordosis with no cervical straightening with multilevel degenerative disc disease, which findings are clearly longstanding. The affirmed report of defendant s independent evaluating radiologist, Alan B. Greenfield, M.D. indicates that an MRI examination of the lumbar spine taken on May 18, 2011 revealed a diagnosis of: normal lordosis with no curvature abnormalities with mild degenerative disc disease. The affirmed report of defendant s independent evaluating radiologist, Alan B. Greenfield, M.D. indicates that an MRI 3 [* 4] examination of the right shoulder taken on April 25, 2011 revealed a diagnosis of: developmental downsloping of the acromion which represents a normal anatomic variant and no evidence of fracture, dislocation or rotator cuff abnormality. He concludes that there are no findings on the study which can be attributed to the accident with any degree of medical certainty. Additionally, defendant established a prima facie case for the category of 90/180 days . The plaintiff s verified bill of particulars indicates that plaintiff was only confined to bed for two (2) weeks, plaintiff was only confined to home for one month, and plaintiff was only totally incapacitated from employment for one month. Such evidence shows that the plaintiff was not curtailed from nearly all activities for the bare minimum of 90/180, required by the statute. The aforementioned evidence amply satisfied defendant s initial burden of demonstrating that plaintiff did not sustain a "serious injury". Thus, the burden then shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law (see, Gaddy v. Eyler, 79 NY2d 955 [1992]). Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint (see, Licari v. Elliott, supra). B. Plaintiff raises a triable issue of fact In opposition to the motion, plaintiff submitted: an attorney s affirmation, plaintiff s own affidavit, an affidavit of plaintiff s chiropractor, Mark S. Snyder, D.C., an affirmation of plaintiff s physiatrist, Mihir Bhatt, M.D., and an affirmation and sworn MRI reports of plaintiff s radiologist, John Himelfarb, M.D. A medical affirmation or affidavit which is based upon a physician s personal examinations and observation of plaintiff, is an acceptable method to provide a doctor s opinion regrading the existence and extent of a plaintiff s serious injury. (O Sullivan v. Atrium Bus Co., 246 AD2d 418, 688 NYS2d 167 [1st Dept 1980]). The causal connection must ordinarily be established by competent medical proof (see, Kociocek v. Chen, 283 AD2d 554 [2d Dept 2001]; Pommels v. Perez,4 NY3d 566 [2005]). Plaintiff submitted medical proof that was contemporaneous with the accident showing right shoulder sprain/contusion (Pajda v. Pedone, 303 AD2d 729 [2d Dept 2003]). Plaintiff has established a causal connection between the accident and the right shoulder injury. The affirmation submitted by plaintiff s physician, Dr. 4 [* 5] Mihir Bhatt, sets forth the objective examination, tests, and review of medical records which were performed contemporaneously with the accident to support his conclusion that the plaintiff suffered from significant injuries, to wit: right shoulder sprain/contusion. Dr. Bhatt s affirmation details plaintiff s symptoms, including pain in the right shoulder. He further opines that the right shoulder injury sustained by the plaintiff in the accident was causally related to the motor vehicle accident of April 18, 2011. Additionally, plaintiff s radiologist, John Himelfarb, M.D., interpreted MRI films of plaintiff s right shoulder taken on April 25, 2011 and found: [s]lightly curved acromion process causing a mild degree of subacromial impingement upon the musculotendinous junction of the subpraspinatus. Muscles and tendons of the rotator cuff tear . Furthermore, plaintiff has provided a recent medical examination detailing the status of her injuries at the current point in time (Kauderer v. Penta, 261 AD2d 365 [2d Dept 1999]). The affirmation of Dr. Bhatt provides that a recent examination by Dr. Bhatt on January 9, 2013 sets forth his conclusion that the plaintiff suffers from significant injuries, to wit: inter alia, a right shoulder sprain/contusion. He further opines that the right shoulder injury is permanent in nature, significant, and causally related to the motor vehicle accident of April 18, 2011. Clearly, the plaintiff s experts conclusions are not based solely on the plaintiff s subjective complaints of pain, and therefore are sufficient to defeat the motion (DiLeo v. Blumber, supra, 250 AD2d 364, 672 NYS2d 319 [1st Dept 1998]). Since there are triable issues of fact regarding whether the plaintiff sustained a serious injury to her right shoulder, plaintiff is entitled to seek recovery for all injuries allegedly incurred as a result of the accident (Marte v. New York City Transit Authority, 59 AD3d 398 [2d Dept 2009]). Also, the plaintiff has come forward with sufficient evidence to create an issue of fact as to whether the plaintiff sustained a medically-determined injury which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying accident (Savatarre v. Barnathan, 280 AD2d 537 [2d Dept 2001]). The record must contain objective or credible evidence to support the plaintiff s claim that the injury prevented plaintiff from performing substantially all of his customary activities (Watt v. Eastern Investigative Bureau, Inc., 273 AD2d 226 [2d Dept 2000]). When construing the statutory definition of a 90/180-day claim, the words "substantially all" should be construed to mean that 5 [* 6] the person has been prevented from performing her usual activities to a great extent, rather than some slight curtailment (see, Gaddy v. Eyler, 79 NY2d 955; Licari v Elliott, 57 NY2d 230 [1982]; Berk v. Lopez, 278 AD2d 156 [1st Dept 2000], lv denied 96 NY2d 708 [2001]). Plaintiff include experts affirmations which render an opinion on the effect the injuries claimed may have had on the plaintiff for the 180-day period immediately following the accident. As such, plaintiff s submissions were sufficient to establish a triable issue of fact as to whether plaintiff suffered from a medically determined injury that curtailed her from performing her usual activities for the statutory period (Licari v. Elliott, 57 NY2d 230, 236 [1982]). Accordingly, plaintiff s claim that her injuries prevented her from performing substantially all of the material acts constituting her customary daily activities during at least 90 of the first 180 days following the accident is sufficient to raise a triable issue of fact (see, Graham v. Shuttle Bay, 281 AD2d 372 [1st Dept 2001]; Hernandez v. Cerda, 271 AD2d 569 [2d Dept 2000]; Ocasio v. Henry, 276 AD2d 611 [2d Dept 2000]). Accordingly, the motion is denied. The foregoing constitutes the decision and order of this Court. Dated: April 3, 2013 ......................... Howard G. Lane, J.S.C. 6
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