Santos v Volonakis

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Santos v Volonakis 2015 NY Slip Op 31493(U) August 4, 2015 Supreme Court, Queens County Docket Number: 3152/14 Judge: Howard G. Lane Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. 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 ----------------------------------DANIEL SANTOS, Index No. 3152/14 Motion Date July 9, 2015 Plaintiff, -against- Motion Cal. No. 130 E. VOLONAKIS and NICULAE TERIS, Defendants. ----------------------------------- 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 defendants for summary judgment dismissing the complaint of plaintiff, Daniel Santos, 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 February 18, 2013. Defendants have submitted proof in admissible form in support of the motion for summary judgment, for all categories of serious injury. Defendants submitted, inter alia, affirmed reports from two independent examining and/or evaluating physicians (a neurologist and an orthopedist) 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 1 [* 2] (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. 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]; 2 [* 3] Parker v. DeFontaine, 231 AD2d 412 [1st Dept 1996]; DiLeo 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. Defendants 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 defendants’ independent examining orthopedic surgeon, J. Serge Parisien, M.D., indicates that an examination conducted on November 17, 2014 revealed a diagnosis of: alleged injury to the thoracic and lumbar spine, resolved and alleged injury to the right knee, resolved. He opines that there is no evidence of residuals or permanency. Dr. Parisien concludes that plaintiff can perform his usual occupation and can continue with his activities of daily living with no restrictions. The affirmed report of defendants’ independent examining neurologist, Jean Robert-Desrouleaux, M.D., indicates that an examination conducted on November 17, 2014 revealed a diagnosis of: alleged headaches, dizziness and lightheadedness, resolved; alleged injury to the cervical and lumbar spine, resolved; normal neurological examination. He opines that there is no permanence or residual effect anticipated. Dr. Desrouleaux concludes that the plaintiff is able to function in his pre-accident capacity and perform work functions and daily activities without restrictions. Additionally, defendants established a prima facie case for the category of “90/180 days.” The plaintiff’s verified bill of particulars indicates that: he was only confined to bed for approximately several days immediately after the accident and 3 [* 4] intermittently thereafter and he was only confined to home for approximately several days immediately after the accident and intermittently thereafter. 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 defendants’ 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, an affirmation of plaintiff’s physician, David H. Delman, M.D., unsworn medical records, sworn narrative reports of plaintiff’s physician, Albert Villafuerte, M.D., affirmations and sworn MRI reports of plaintiff’s physician, Robert Diamond, M.D., an affirmation and sworn narrative reports of plaintiff’s physicians, Nicky Bhatia, M.D., Steven Touliopoulos, M.D., Paul M. Brisson, M.D., Daniel Weiland, M.D., and plaintiff’s own affidavit. 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 lumbar spine range of motion limitations (Pajda v. Pedone, 303 AD2d 729 [2d Dept 2003]). Plaintiff has established a causal connection between the accident and the lumbar spine injuries. The sworn narrative report submitted by plaintiff’s physician, Dr. David H. Delman, 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: range of motion limitations of the lumbar spine. Dr. Delman’s sworn narrative report details plaintiff’s symptoms, including low back pain. He further opines that the injuries sustained by the plaintiff in the accident were causally related to the motor vehicle accident of February 18, 4 [* 5] 2013. Additionally, plaintiff’s radiologist, Robert Diamond, M.D., interpreted MRI films of plaintiff’s lumbar spine taken on March 4, 2013 and found disc herniations and bulges of the lumbar spine. Furthermore, plaintiff has provided a recent medical examination detailing the status of his injuries at the current point in time (Kauderer v. Penta, 261 AD2d 365 [2d Dept 1999]). The sworn narrative report of Dr. Delman provides that a recent examination by Dr. Delman on February 19, 2015 sets forth the objective examination, tests, and review of medical records which were performed to support his conclusion that the plaintiff suffers from significant injuries, to wit: disc bulges and herniations of the lumbar spine and loss of range of motion of the lumbar spine. He further opines that the lumbar spine injuries are permanent in nature and causally related to the subject motor vehicle accident. 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 his lumbar spine, 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]). Therefore, plaintiff’s submissions are sufficient to raise a triable issue of fact (see, Zuckerman v. City of New York, 49 NY2d 557 [1980]). Accordingly, the defendants’ motion for summary judgment is denied. The clerk is directed to enter judgment accordingly. Dated: August 4, 2015 ......................... Howard G. Lane, J.S.C. 5

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