Conseillant v Ramsaran
Annotate this CaseDecided on August 11, 2015
Supreme Court, Queens County
Terrence Conseillant, Plaintiff,
against
Parmanand Ramsaran and DONNA RAMSARAN, Defendants.
13817/2013
Robert J. McDonald, J.
The following papers numbered 1 to 7 read on this motion by defendants PARMANAND RAMSARAN and DONNA RAMSARAN, for an order pursuant to CPLR 3212 granting defendants summary judgment and dismissing the complaint of plaintiff TERRENCE CONSEILLANT on the ground that plaintiff has not sustained a serious injury within the meaning of Insurance Law §§ 5102 and 5104.
Papers Numbered
Notice of Motion-Affirmation-Exhibits................1 - 4
Affirmation in Opposition-Exhibits...................5-6
Reply Affirmation....................................7
______________________________________________________________
Upon the foregoing papers, it is ordered that this motion is determined as follows:
This is a personal injury action in which plaintiff seeks to recover damages for injuries he allegedly sustained on April 12, 2012 in a motor vehicle accident which took place at the intersection of 129th Street and 101st Avenue in Queens County, New York. Plaintiff alleges that as a result of the accident he [*2]sustained, inter alia, headaches and injuries to his cervical spine, thoracic spine and lumbar spine including disc herniations and bulges.
Plaintiff commenced this action by filing a summons and verified complaint on July 19, 2013. Defendants joined issue by service of a Verified Answer dated August 26, 2013. Defendants now move for an order pursuant to CPLR 3212, dismissing plaintiff's complaint on the ground that the injuries claimed by plaintiff fail to satisfy the serious injury threshold requirement of Section 5102(d) of the Insurance Law.
In support of the motion, defendants submit an affirmation from counsel; a copy of the pleadings; plaintiff's verified bill of particulars; a copy of the transcript of plaintiff's examination before trial taken on March 20, 2014; a copy of the electrodiagnostic report of Nabil Elhadidy, M.D.; a copy of the affirmed medical report of orthopedic surgeon Leon Sultan, M.D.; and a copy of the no-fault verification of treatment by attending physician forms.
At the examination before trial, plaintiff stated that he went home after the accident and his first medical treatment was approximately one week after the subject accident. He treated for approximately six months after the accident. He was not employed at the time of the subject accident and he was not confined to home after the subject accident.
Defendants submit the electrodiagnostic report of Dr. Elhadidy to demonstrate a lack of serious injury. Although unsworn, a defendant moving for summary judgment may submit unsworn medical reports and records of plaintiff's physicians to demonstrate a lack of serious injury. However, when the defendant does so, the door is open for plaintiff to rely on the same unsworn or unaffirmed reports and records in opposition to the motion (see Kearse v New York City Transit Authority, 16 AD3d 45 [2d Dept. 2005]; Pech Yael Taxi Corp., 303 AD2d 733 [2d Dept. 2003]). Dr. Elhadidy performed an EMG test of plaintiff's cervical spine and upper extremities on July 24, 2012. The EMG was reported as negative, with no evidence of cervical radiculopathy. Dr. Elhadidy also performed an EMG test of the lumbar spine and lower extremities, and the EMG was reported as negative, with no evidence of lumbar radiculopathy.
On August 4, 2014, Dr. Sultan performed an independent orthopedic medical examination. Plaintiff reported to Dr. Sultan that as a result of the accident he injured his neck and mid and lower back. Dr. Sultan tested plaintiff's range of motion using a [*3]goniometer and found that the plaintiff had no limitations of range of motion of the cervical spine and thoracolumbar spine. Dr. Sultan states that based upon his examination there is no ongoing causally related orthopedic or neurological impairment due to the subject accident and there are no restrictions on activities of daily living or work activity.
Defendants also submit the verification of treatment by attending physician forms which fail to indicate that plaintiff was disabled or unable to work during the first ninety days after the accident.
Defendants' counsel contends that the evidence submitted is sufficient to establish, prima facie, that the plaintiff has not sustained a permanent loss of a body organ, member, function or system and that he has not sustained a permanent consequential limitation of a body organ or member or a significant limitation of use of a body function or system. Counsel also contends that the plaintiff, who was not confined to his home after the accident, did not sustain a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff, for not less than 90 days during the immediate one hundred days following the occurrence, from performing substantially all of his usual daily activities.
In opposition plaintiff submits an affirmation from his counsel; the affirmed medical report of Richard Amato, D.C.; the MRI reports of Naiyer Imam, M.D.; and his own affidavit.
Dr. Amato examined plaintiff on March 18, 2015 and reports that plaintiff presented with intermitten neck pain radiating into the left shoulder, intermitten lower back pain with radiation into both buttocks, and intermittent numbness and tingling of both lower extremities. Dr. Amato performed range of motion testing and found limited ranges of motion in plaintiff's cervical spine and lumbar spine. Dr. Amato concludes that the injuries were sustained in the subject accident. He also states that plaintiff was partially permanently disabled from the date of the accident till the examination and he has a poor prognosis due to the injuries suffered in the subject accident.
The MRI reports of Dr. Imam are not sworn to or affirmed under penalties of perjury, and are therefore, not competent and not admissible (see Grasso v Angerami, 79 NY2d 813 [1991]; Varveris v France, 71 AD3d 1128 [2d Dept. 2012]); Malave v Basikov, 45 AD3d 539[2d Dept. 2007]). Moreover, defendants did not rely on Dr. Imam's reports. As such, defendants did not open the door for plaintiff to rely on Dr. Imam's reports.
On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action (Wadford v. Gruz, 35 AD3d 258 [1st Dept. 2006]). "A defendant can establish that plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Grossman v Wright, 268 AD2d 79 [1st Dept. 2000]). Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230 [1982]).
Where defendants' motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992]; Zuckerman v City of New York, 49 NY2d 557[1980]; Grossman v Wright, 268 AD2d 79 [2d Dept 2000]).
Here, the competent proof submitted by defendants, is sufficient to meet defendants' prima facie burden by demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955 [1992]; Carballo v Pacheco, 85 AD3d 703 [2d Dept. 2011]; Ranford v Tim's Tree & Lawn Serv., Inc., 71 AD3d 973 [2d Dept. 2010]).
In opposition, plaintiff failed to raise a question of fact. While a quantitative assessment or numerical assessment of range of motion of injury is not required on an initial or contemporaneous examination, the courts still require a contemporaneous qualitative assessment of injuries from an examination close to the time of the accident. "[A] contemporaneous doctor's report is important to proof of causation" (Perl v Meher, 18 NY3d 208[2011]). The absence of a contemporaneous medical report invites speculation as to causation (see Griffiths v Munoz, 98 AD3d 997 [2d Dept. 2012]). As stated by the Appellate Division, First Judicial Department, "while the Court of Appeals in Perl rejected a rule that would make contemporaneous quantitative assessments a prerequisite to recovery...Perl did not abrogate the need for at least a [*4]qualitative assessment of injuries soon after the accident (see Rosa v Mejia, 95 AD3d 402 [1st Dept. 2012]). Thus, Perl "confirmed the necessity of some type of contemporaneous treatment to establish that a plaintiff's injuries were causally related to the incident in question" [Rosa v Mejia, 95 AD3d 402 [1st Dept. 2012]).
Although Dr. Amato concludes that the injuries indicated in his report were sustained in the subject accident, plaintiff did not submit competent objective medical evidence that revealed any treatment or the existence of an injury to plaintiff's neck or back that was contemporaneous with the subject accident. Here, Dr. Amato's examination of plaintiff occurred nearly three years after the subject accident. As such, Dr. Amato's opinion that plaintiff's injuries were sustained in the subject accident is speculative (see Perl v. Meher, 18 NY3d 308 [2011]; Griffiths v. Munoz, 98 AD3d 997 [2d Dept. 2012]; Singh v. City of New York, 71 AD3d 1121 [2d Dept. 2010]).
Regarding the 90/180 day category, plaintiff failed to submit competent medical evidence that the injuries allegedly sustained in the subject accident rendered him unable to perform substantially all of his usual and customary daily activities for not less than 90 days of the first 180 days following the subject accident (see Nieves v Michael, 73 AD3d 716 [2d Dept. 2010]; Sainte-Aime v Ho, 274 AD2d 569 [2d Dept. 2000]). In this regard, the plaintiff admitted at his deposition that he was not confined to his bed or home immediately following the accident(see Bleszcz v Hiscock, 69 AD3d 890 [2d Dept. 2010]). Moreover, the Verification of Treatment by Attending Physician forms completed by plaintiff's treating physician and chiropractors never stated that plaintiff was disabled or unable to work.
Accordingly, for all of the above stated reasons, it is hereby,
ORDERED, that the motion by defendants, PARMANAND RAMSARAN and DONNA RAMSARAN, for summary judgment are granted and the complaint of plaintiff TERRENCE CONSEILLANT is dismissed.
Dated: August 11, 2015
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.
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