Feigenbaum v Mandel

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Feigenbaum v Mandel 2013 NY Slip Op 31985(U) August 20, 2013 Sup Ct, New York County Docket Number: 112324/2010 Judge: Arlene P. Bluth 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] SCANNED ON 812712013 T OF THE STATE O F NEW YORK NEW YORK COUNTY PART 22- Justice Index Number : 112324/2010 FEIGENBAUM, JOY vs. MANDEL, LAWRENCE M. SEQUENCE NUMBER : 002 - INDEX NO. MOTION DATE MOTION SEQ. NO. SUMMARY JUDGMENT 4? 2 , were read on this motion tolfor 6% Notice of MotionlOrder to Show Cause -Affidavits - Exhibits The following papers, numbered 1 to 5 L I No(s). f Answering Affidavits - Exhibits INo(s). Replying Affidavits INo(s)- . 3 2 Upon the foregoing papers, it is ordered that this motion is s ..................................................................... CASE DlSPOSED NON-FINAL DISPOSITION c DENiED ] 2. CHECK AS APPROPRIATE: ........................... MOTION I : QGRANTED S 0GRkNiEG IN PART 00THE.R 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 0SUBMIT ORDER 0DO NOT POST 0FIDUCI ~ R APPOINTMENT ci REFERENCE Y 1. CHECK ONE: [* 2] SUPREME COURT OF THE STATE OF NY COUNTY OF NEW YORK: PART 22 Index No.: 112324/10 Motion Seq 02 and 03 Joy Feigenbaum Pluintiff, -against- Lawrence M. Mandel, Anthony M. Nbnn a Hilti, Inc., Defendants. Motion sequence numbers 02 (by defGndant Mandel) and 03 (by defendants Hilti and Ninn) are consolidated for joint disposition. Defendants motions for summary judgment dismissing this action on the grounds that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5012(d) are both granted, and the action is hereby dismissed. In this action, plaintiff alleges that on September 28,2007 she sustained personal injuries when she was a passenger in a taxi owned and operated by defendant Mandel which came into contact with a vehicle owned by defendant Hilti, Inc. ( Hilti ) and operated by defendant Nunn. To prevail on a motion for summaryjudgment, the defendant has the initial burden to present competent evidence showing that the plaintiff has not suffered a serious injury (see Rodriguez v Goldstein, 182 AD2d 396 [ 19921). Such evidence includes affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiffs claim (Shinn v Catanzaro, 1 AD3d 195, 197 [ lstDept 20031, quoting Grossman v Wright, 268 AD2d 79,84 [lstDept 20001). Where there is objective proof of injury, the defendant may meet his or her burden upon the submission of expert affidavits indicating that plaintiffs injury was caused by a pre-existing condition and not the Page 1 of 5 [* 3] accident (Farrington v Go On Time Car Serv. , 76 AD3d 8 18 [ 1st Dept 201 01, citing Pommells v Perez, 4 NY3d 566 [2005]). In order to establish prima facie entitlement to summary judgment under the 90/180 category of the statute, a defendant must provide medical evidence of the absence of injury precluding 90 days of normal activity during the first 180 days following the accident (Elias v Mahlah, 2009 NY Slip Op 43 [lstDept]). However, a defendant can establish prima facie entitlement to summary judgment on this category without medical evidence by citing other evidence, such as the plaintiffs own deposition testimony or records demonstrating that plaintiff was not prevented from performing all of the substantial activities constituting customary daily activities for the prescribed period (id.). Once the defendant meets his or her initial burden, the plaintiff must then demonstrate a triable issue of fact as to whether he or she sustained a serious injury (see Shinn, 1 AD3d at 197). A plaintiffs expert may provide a qualitative assessment that has an objective basis and compares plaintiffs limitations with normal function in the context of the limb or body system s use and purpose, or a quantitative assessment that assigns a numeric percentage to plaintiffs loss s , of range of motion (Toure v Avis Rent A Car S. 98 NY2d 345,350-35 1 [2002]). Further, where the defendant has established a pre-existing condition, the plaintiffs expert must address causation (see Valentin v Pomilla, 59 AD3d 184 [lstDept 20091; Style v Joseph, 32 AD3d 212, 2 14 [ 1St Dept 20061). In her verified bill of particulars, plaintiff claims she sustained injuries to her chin, head, left knee and leg, jaw and teeth (exh B to both sets of moving papers, para. 1 l), and a 90/180 claim. In support of their motions, defendants submit the September 7,201 1 affirmed report of Page2of 5 [* 4] Dr. Israel, an orthopedist (exh D) and the September 14,201 1 affirmed report of Dr. Seinuk, a dentist (exh E) who both examined plaintiff at defendants request. Dr. Israel examined plaintiffs left knee and leg, measured these ranges of motion with a goniometer and stated that plaintiffs orthopedic evaluation was within normal limits. Dr. Seinuk found that plaintiff had no current dental condition and specifically no temporomandibular condition, and set forth the objective evidence which he used to reach this conclusion. Defendant Mandel also submits (exh C) the August 17,2011 affirmed report of Dr. Tantleff, a radiologist, who reviewed the 1/11/08 MRI of plaintiffs left knee, and found evidence of a contusion, but no fracture or traumatic tear. Based on these affirmed reports, defendants met their prima facie burden of showing that the plaintiff did not sustain a permanent consequential injury or significant limitation as a result of the subject accident. Additionally, defendants met their initial burden with respect to plaintiffs 90/180-day claim by submitting plaintiffs bill of particulars wherein she stated that she missed only 3 days of work as a result of the accident, and her deposition testimony (T. at 72) that she missed about five full days of work. In opposition, plaintiff submits the certified admission record from New York Downtown Hospital from the date of the accident (exh 1) that includes reports of CT scans of plaintiffs head and brain, which did not contain any positive findings. The Court notes that these records specifically note no dental injury (p. 6, physical exam- ENT). The hospital records are admissible by certification. Exhibit 2 contains unaffirmed office records of plaintiffs treatment at Advanced Periodontics & Implant Dentistry; these records are inadmissable. Exhibit 3 contains two Page3of 5 [* 5] , . , unaffirmed MRI reports from East River Medical Imaging, P.C. - a 1/11/08 MFU of plaintiffs left knee and a 5/29/08 brain MRI; neither of these reports is admissible. Exhibit 4 contains the unaffirmed office records of Manhattan Orthopedics & Sports Medicine which includes the unaffirmed letter report of Dr. Klion; these records are not admissible. Exhibit 5, the unaffirmed office records of ENT and Allergy Associates, LLP and Exhibit 6, the unaffirmed office records of Dr. Jane Levitt, presumably plaintiffs gynecologist, are likewise inadmissible. As the Appellate Division, First Department stated in Lazu v Harlem Group, Inc., 89 AD3d 435, 436,93 1 NYS2d 608 (1 Dept 20 11): Statements and reports by the injured party s examining and treating physicians that are unsworn or not affirmed to be true under penalty of perjury do not meet the test of competent, admissible medical evidence sufficient to defeat a motion for summary judgment (citation omitted). Finally, plaintiff submits an October 2010 affirmation from Dr. Murphy, a dentist (exh 7); although in admissible form, this affirmation fails to create a triable factual question. Significantly, Dr. Murphy never examined plaintiff; he states that he reviewed the Emergency Room record (which noted no dental injuries) and records of Dr. Sacks and Dr. Kratenstein, which were not attached to his affirmation and presumably not affirmed. Without ever having met plaintiff or looked into her mouth, Dr. Murphy states that plaintiffs injuries will continue to affect her qualitative life experience (para. 12). This affirmation, written more than three years after the accident and without the benefit of an actual examination, cannot be used as proof of a dental exam contemporaneous with the accident; nor does it create a triable question of fact as to whether plaintiff sustained any significant limitation of a body part or system or a permanent consequential limitation causally related to the subject accident. Thus, plaintiff failed to raise a triable issue of fact under either the permanent consequential limitation or significant Page4of 5 [* 6] limitation category sufficient to defeat summary judgment. Finally, plaintiff did not submit any admissible medical proof to dispute Dr. Israel s findings in connection with her claimed orthopedic injuries (left knee and leg), and did not oppose the branch of defendants motions seeking dismissal of her 90/180-day claim. Accordingly, it is ORDERED that defendants motions for summary judgment dismissing this action on the grounds that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5012(d) (seq. nos. 02 and 03) are both granted, and the action is hereby dismissed. This is the Decision and Order of the Court. A Dated: August 20,2013 New York, New York \LED ARLENE P. BLUTH, JSC Page5of 5

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