Opinion
38425/02.
February 13, 2011.
Hassan O.G. Alamin, Pro se.
Defendants Attorney: Bryant T Schwartz, Esq., Wilson, Elser, Moskowitz, Edelman Dicker LLP.
The defendants Shake Uddin and Aten Taxi, Inc. (collectively, the defendants) renew their cross motion for an order, pursuant to CPLR § 3212, granting summary judgment dismissing the complaint on the ground that the plaintiff Hassan O.G. Alamin, failed to sustain a serious injury as defined in Insurance Law § 5102 (d). In opposition, the plaintiff moves, pro se, for an order "granting dismissal" of the defendants' cross motion and for sanctions, based upon the court's prior ruling awarding him summary judgment on liability.
The plaintiff filed correspondence requesting dismissal of the case in response to the defendants' cross motion. Apparently, he mistakenly believes that the court's earlier order was a complete determination in his favor that can be challenged only though an appeal. The plaintiff's papers in these circumstances are more properly treated as simply opposition to the defendants' renewed summary judgment cross motion.
Background Facts and Procedural History
The plaintiff commenced this personal injury action on August 22, 2002 against Shake Uddin (Uddin), the driver, and Aten Taxi Inc. (Aten), the medallion owner of a New York City taxi, involved, along with the plaintiff, in a January 1, 2001 motor vehicle accident at the traffic light on Flatbush Avenue Extension at Livingston Street in Brooklyn. The plaintiff alleges that he was stopped at the light when Uddin rear-ended his vehicle. Uddin's whereabouts throughout this proceeding have been unknown, and Aten was held vicariously liable for Uddin's negligence in the court's earlier decision ( Alamin v Uddin, 19 Misc 3d 1115[A], 2008 NY Slip Op 50719[U] [Sup Ct, Kings County 2008]).
That decision also denied the portion of the defendants' summary judgment cross motion, which was based on the plaintiff's alleged failure to establish a qualifying serious injury, but said denial was without prejudice to renewal upon completion of discovery. The court held, as a matter of equity, that the plaintiff be given additional time to locate his doctors and obtain affirmations about his medical condition. This renewed cross motion has now ensued.
The Parties' Positions
Defendants' Position
The defendants argue thatthe plaintiff has failed to meet the statutory requirements of a serious injury under Insurance Law § 5102 (d), which defines serious injury as: "[A] personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation 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 constitute 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." They present affirmed medical reports from two physicians in support of this argument. First, they submit the affirmed reportof Dr. Edward S. Crane (Dr. Crane), the defendants' orthopedic surgeon, regarding the plaintiff's January 13, 2009 examination. That report references the plaintiff's repeated complaints of lumbar pain resulting in his inability to sleep through the night or remain standing pain free. It is noted that Mr Alamin specifically stated: "I can't sleep. I have permanent pain in the back . . . I can't stand like 15 minutes. I have pain . . . Also, sleeping more than 3 or 4 hours, I have to wake up [due to pain in the lumbar]." However, Dr. Crane's physical exam found that the plaintiff exhibited a normal range of motion and moved pain free within this normal range. Dr. Crane also found the plaintiff able to walk "normally, rapidly and without limping." He measured both of the plaintiff's arms, conducted manual muscle testing, and again found each arm normal. Similarly, Dr. Crane measured the circumference of the plaintiff's legs, conducted manual muscle testing and pin prick simulation, and found normal, symmetrical measurements, movements, and response.
The second affirmed medical report, dated October 27, 2008, was a radiology study completed by Dr. A. Robert Tantleff (Dr. Tantleff) of the plaintiff's January 26, 2001 CAT scans submitted to Dr. Brian Elias, D.C., of Brooklyn Hospital. These CAT scans have been provided on a CD-ROM and are unauthenticated. According to Dr. Tantleff, the plaintiff's CAT scans, taken 25 days after the accident at issue, showed spinal degeneration. He found "no evidence of acute or recent injury," rather a depiction of "age-related chronic" degeneration of the spine.
Plaintiff's Position
The plaintiff first argues that the defendants improperly filed their renewed cross motion. He cites in this regard the res judicata doctrine, incorrectly identified as the "res adjudicata" doctrine. In seeking denial of the defendants' cross motion, the plaintiff claims that the prior determination granting him summary judgment resolved both the liability and serious injury issues presented therein and contends that the defendants needed to pursue any remedy through appeal. The plaintiff requests denial of the defendants' renewed summary judgment cross motion and seeks sanctions against the defendants' counsel.
The plaintiff provides only one medical affirmation about the 2001 accident; namely, a report by Dr. Ranga C. Krishna (Dr. Krishna), a New York licensed neurologist, commenting on an August 6, 2007 examination. Dr. Krishna also references the unauthenticated January 26, 2001 images studied by Dr. Tantleff, the defendants' radiologist, and affirms that the plaintiff has developed tingling and numbness in his right and left arms radiating into his right and left leg as a result of the January 1, 2001 accident. Dr. Krishna finds that the patient's "sensory thresholds . . . are all within normal limits, except for a decreased sensation on the outer aspects of the bilateral leg to pin and decreased sensation on the outer aspect of the bilateral arm to pin." Dr. Krishna, unlike Dr. Crane, the defendants' orthopedist, found the plaintiff had decreased spinal range of motion. She maintains that the plaintiff had weakness in the arm and leg muscles and relies on the 2001 images to highlight "the presence of a chronic bilateral C5-C6 and L5-S1 radiculopathy secondary to his motor vehicle accident of 2001." Dr. Krishna thus reports "permanent restrictions in range of motion of the cervical and lumbar spine region and neurological disability that would require a series of three epidural injection[s] to the neck and systematic physical therapy and pharmacological pain management."
The plaintiff, though, despite several requests, has failed to provide the court with affirmations from his treating physician at the time of the January 1, 2001 accident or with affirmations from those doctors treating him in the time period between the 2001 accident and his decision to obtain treatment from Dr. Krishna in May, 2007. In fact, few of the documents provided in response to the subpoena are from the relevant time period. The only documents referencing the plaintiff's medical treatment in 2001 are an unaffirmed "patient narrative" by Dr. Brian Elias (Dr. Elias) of Brooklyn Hospital, the CD-ROM of the plaintiff's 2001 scans, and an unaffirmed letter from the radiologist who performed the 2001 scans. This letter is a signed but unaffirmed statement to Dr. Elias by Dr. Eric Ludin (Dr. Ludin), a board-certified radiologist, describing the January 26, 2001 MRI scan.
"[T]he 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. Moreover, CPLR § 2106 requires a physician's statement be affirmed (or sworn) to be true under the penalties of perjury" ( Cekic v Zapata, 23 Misc 3d 1119[A], 2009 NY Slip Op 50838[U] [Sup Ct, NY County, 2009], affd 69 AD3d 464 [2010]).
This unaffirmed narrative mentioned above outlines the treatment received by the plaintiff from Dr. Elias between January 11, 2001 and August 14, 2001, and cites the CT scans performed by Dr. Ludin as well as Dr. Howard M. Rombom's (Dr. Rombom) "phycological (sic) examination" of the plaintiff on January 31, 2001. Dr. Elias conducted a physical examination of the plaintiff's lumbar and muscles finding a decrease in movement and motor strength. Specifically, he states in an unsworn letter that he found a 90 percent decrease from normal in right and left lateral flexion, extension, and rotation. Further, Dr. Elias found "decreased muscle strength of the right deltoid, right wrist flexors and right wrist extensors," diagnosing a +2/5 motor strength on the right "with marked pain upon both active and passive range of motion." Dr. Elias neither noted the plaintiff's specific measurements nor the "normal" comparative measurements. Also, the plaintiff notes that he was treated by Dr. Elias several times per week from January 11, 2001 to July 10, 2001, and he argues that the facts demonstrate that he has suffered a "serious injury" under Insurance Law § 5102 (d).
The plaintiff also cites the January 31, 2001 unaffirmed report of psychologist Dr. Rombom. He asserts that this report demonstrates that he is suffering "both emotionally and cognitively" and that "the negligence of defendants is [the] proximate cause" of his psychological injury. Next, the plaintiff refers to an unsworn MRI scan report of his lumbosacral spine performed by radiologist Dr. Harold S. Parnes on June 1, 2007. Dr. Parnes opines in an unsworn report that the plaintiff is suffering from various injuries around the L5-S1 vertebrae, including anterolisthesis, disc space narrowing, dessication, and a herniated disc. Additionally, the documents provided in response to the plaintiff's subpoenas also include a small number of other unaffirmed documents referencing the 2001 accident. These documents are unaffirmed medical records from emergency rooms visits by the plaintiff apparently for treatment received as a result of his complaints of lower back pain.
In sum, the plaintiff argues that the unsworn and sworn medical reports he has submitted in opposition to the defendants' renewed summary judgment cross motion demonstrate that he has suffered permanent and significant limitations of use in his neck and back. Using copies of excerpts of correspondence from the Social Security Administration (SSA), the plaintiff further notes that the SSA has determined that he is disabled.
Discussion
(1)
The plaintiff erroneously invokes the res judicata doctrine which precludes parties from litigating a previously decided claim and is based on judicial efficiency ( Kaufman v Eli Lilly Co., 65 NY2d 449, 455). "Res judicata, or claim preclusion, is invoked to prevent a party, or one who is in privity with the party, from relitigating a previously litigated action. In other words, res judicata will only apply if there has been a final judgment on the merits" (Paterno v Carroll, 2009 NY Slip Op 32548[U], *5 [Sup Ct, New York County 2009], affd as modified 75 AD3d 625). Here, a final judgment on the merits only exists regarding the defendants' liability to the plaintiff; the issue of whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) remains unresolved.
The plaintiff may have been invoking the law of the case doctrine, which calls for decisions made during the litigation to apply to the same issue later in the case. However, the law of the case doctrine also fails to apply here. The prior decision, granting summary judgment solely on the vicarious liability issue, found defendant Aten liable to the plaintiff, but dismissed the serious injury issue without prejudice pending completion of discovery. In addition, the court directed that the defendants place the serious injury issue on the calendar upon completion of necessary discovery, and the defendants have complied.
The United States Supreme Court refers to law of the case as "an amorphous concept," which "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case; . . . [this is a] fundamental precept of common-law adjudication [which requires] that an issue once determined by a competent court [be honored as] conclusive" ( Arizona v California, 460 US 605, 618). The New York Court of Appeals equally notes that "[a]s distinguished from issue preclusion [res judicata] and claim preclusion [collateral estoppel], however, law of the case addresses the potentially preclusive effect of judicial determinations made in the course of a single litigation before final judgment, [while] [r]es judicata and collateral estoppel generally deal with preclusion after judgment" ( People v Evans, 94 NY2d 499, 502 [emphasis added]). Indeed, the Court of Appeals has explained that "law of the case has been aptly characterized as a kind of intra-action res judicata'" (id.).
This court has made no final determination whether the plaintiff sustained a serious injury under Insurance Law § 5102 (d). The prior ruling simply denied the defendants' summary judgment cross motion on this issue without prejudice pending discovery of the plaintiff's medical records and granted the defendants leave to renew their cross motion after the plaintiff obtained the necessary documents to show proof of his serious injury. The plaintiff mistakenly interprets this prior ruling as a final adjudication of the serious injury issue, rather than merely an extension of time to complete his own court-mandated discovery. Hence, the plaintiff's objection to placing the renewed summary judgment cross motion on the calender and his contention that the defendants were required to file an appeal about the serious injury issue lacks merit.
(2)
Evaluating the cross motion itself involves recognizing that summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should only be employed where no triable issues exist ( Kolivas v Kirchoff , 14 AD3d 493 ; see also Andre v Pomeroy, 35 NY2d 361, 364). Granting a summary judgment motion occurs if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212 [b]; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967; Zuckerman v City of New York, 49 NY2d 557, 562), and the party opposing the summary judgment motion fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact ( Alvarez v Prospect Hosp., 68 NY2d 320, 324, citing Zuckerman, 49 NY2d at 562; see also Winegard v New York Univ. Med. Ctr., 64 NY2d 851).
If the plaintiff's injuries fall within the statutory definition of "serious," articulated in Insurance Law § 5102 [d], then the plaintiff may maintain an action pursuant to Insurance Law § 5104 (a), which allows for recovery "for personal injuries arising out of negligence . . . in the case of a serious injury." Whether the plaintiff sustained a serious injury presents a question of law for the court to resolve in the first instance ( Licari v Elliot, 57 NY2d 230, 237). "[T]he court should decide the threshold question of whether the evidence would warrant a jury finding that the injury falls within the class of injuries that, under no-fault, should be excluded from judicial remedy" (Licari, 57 NY2d at 238). The plaintiff incorrectly views this issue as solely factual, but if a plaintiff "fails to meet the burden of proving the threshold requirement of establishing a prima facie case that he sustained a serious injury within the meaning of the statute," the court must dismiss the case per legislative mandate ( Licari, 57 NY2d at 240). However, such determination occurs after the defendants initially make a prima facie showing that the plaintiff failed to sustain a serious injury within the Insurance Law § 5102 (d) definition ( Toure v Avis Rent a Car Sys., 98 NY2d 345, rearg denied 98 NY2d 728).
(3)
The defendants must meet the statutory standard through affirmed reports of medical professionals showing a lack of a serious injury as determined through objective tests. "A defendant who submits admissible proof that a plaintiff seeking damages for personal injuries arising from a motor vehicle accident has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)" ( Kearse v New York City Tr. Auth. , 16 AD3d 45 , 49-50).
The defendants have made their prima facie showing that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d) in the instant motion through their doctors' affirmed reports and affirmations citing objective tests that found a normal range of motion and no disabilities causally related to the 2001 accident ( see e.g. Ersop v Variano, 307 AD2d 951, 951-952 ["(t)he defendant made a prima facie showing of entitlement to judgment as a matter of law by submitting the affirmation of an orthopedist and a radiologist"]).
(4)
The burden then shifts to the plaintiff to present admissible evidence demonstrating a triable factual issue about each alleged injury( Grossman v Wright, 268 AD2d 79, 84 ["plaintiff in such a situation must present objective evidence of the injury . . . mere parroting of language tailored to meet statutory requirements is insufficient"]). In the instant case, the court specifically directed the plaintiff to meet the required legal burden by supplying physician affirmations outlining his post-accident condition and subsequent treatments. The plaintiff, though, has failed to provide treating physicians' affirmed statements regarding his injuries resulting from the 2001 accident.
The plaintiff's subpoenaed medical records provided minimal information about his treatment immediately following the 2001 accident. The relevant provided material regarding the serious injury dispute, included, as noted above, only the unsworn and unaffirmed MRI scan images, an unsworn letter from the radiologist who performed the January 26, 2001 MRI scan, and an unsworn and unaffirmed patient narrative from the treating physician, Dr. Elias, to the plaintiff's former counsel. Such submissions fail to meet the evidentiary burden which first involves judging the severity of the injury from the point of the 2001 car accident. Therefor, the plaintiff needed to provide affirmed or sworn statements of doctors treating him from 2001 through the present. Instead, he supplied an unaffirmed statement from Dr. Elias, his 2001 treating physician, which, even if permissibly considered, does not establish the plaintiff's inability to perform "substantially all" of his daily activities for 90 of the first 180 days after the accident ( see Ponciano v Schaefer , 59 AD3d 605 ; see also Sainte-Aime v Ho, 274 AD2d 569).
In addition, the affirmation of Dr. Krishna, Mr. Alamin's neurologist, regarding her August 6, 2007 examination of him lacks sufficient supporting range of motion testing. Even "[p]roof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury" ( Pommells v Perez , 4 NY3d 566 , 574; see also Vilomar v Castillo , 73 AD3d 758 , 759 ["(t)he mere existence of a torn tendon, or even a herniated or bulging disc, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration"]). Further, Dr. Krishna does not state that the permanent restrictions suffered by Mr. Alamin are severe enough to reach the threshold required by Insurance Law § 5102 (d) ( Licygiewicz v Stearns , 61 AD3d 1254 , 1255 ["plaintiff relied on affirmations by her orthopedic surgeon and plastic surgeon . . . (t)he affirmations, however, were not based on recent examinations of plaintiff, and their conclusory statements that she has a consequential and significant limitation of the use of her thumb merely parrot the statutory language . . . (w)hile plaintiff's submissions demonstrate that her limitation is permanent, they do not show that the limitation is more than mild, minor or slight"]; see also Pianka v Pereira , 24 AD3d 1084 , 1086 ["(plaintiff's physician) further opined that plaintiff's limitations are significant' and make her unable to tend to household chores or participate in recreational activities in the same manner and as frequently as she did prior to the accident' . . . (t)his opinion, however, is so general that it could be based upon even a minimal or mild physical limitation"]).
Dr. Krishna relies on the January 26, 2001 MRI of the plaintiff's lumbar spine and opines that the pain experienced by him in the 2007 exam is causally related to the 2001 accident. Although her report cites to objective testing of plaintiff to show a restricted range of movement, her conclusions, as a physician treating the plaintiff only since 2007, that the restrictions result from the 2001 accident amount to no more than conclusory statements "parroting" the statute. Her report references the January 26, 2001 CT scans showing a bulging disc, but without the necessary range of motion findings. These images alone, therefore, fail to meet the high threshold set by the New York legislature for the plaintiff to have suffered a legally recognizable "serious injury" ( Pommells, 4 NY3d at 574; Vilomar, 73 AD3d at 759).
Both the the plaintiff's and the defendants' specialists rely on the unaffirmed and unsworn January 26, 2001 images, thereby also allowing the unaffirmed images to be considered by the court ( Flores v Stankiewicz , 35 AD3d 804 , 804-805 [2006] ["the magnetic resonance imaging report submitted by the plaintiff, . . . although uncertified, was properly considered because it was relied upon by the defendants"]).
(5)
The plaintiff fails to explain the gap in treatment between the 2001 visits to Dr. Elias and the 2007 visits to Dr. Krishna. To satisfy the statutory burden, the plaintiff must have suffered permanent injuries that have impaired his daily activities. The cessation of treatment without evidence about the reason behind the gap (for example, a lack of funds) requires granting summary judgment for the defendants ( Pommells, 4 NY3d at 574 ["the so-called gap in treatment was, in reality, a cessation of all treatment . . . (w)hile a cessation of treatment is not dispositive — the law surely does not require a record of needless treatment in order to survive summary judgment — a plaintiff who terminates therapeutic measures following the accident, while claiming "serious injury," must offer some reasonable explanation for having done so"]; see also Moore v Sarwar , 29 AD3d 752 , 753 ["neither the plaintiff nor his examining chiropractor adequately explained the approximately 1 ½-year gap in the plaintiff's treatment . . . in response to the cross motion for summary judgment"]).
Here, a lack of funding, though not raised by the plaintiff in any of his pleadings, would not be an appropriate reason to hold for the plaintiff. Indeed, Mr. Alamin acknowledges that the Social Security Administration classified him as disabled which allowed him to get or recover payment for medical treatment through the Social Security program. The plaintiff provides no evidence from his physicians that treatment outside the home from 2001 to 2007 was unnecessary, and he provides no evidence of any routine check-up for his back pain beyond an unsworn emergency room visit. The plaintiff's repeated inability to provide necessary evidence of serious injury under Insurance Law § 5102 (d) requires finding that he has not met his threshold burden and, therefore, may not recover under Insurance Law § 5104 (a).
(6)
Finally, a second affirmation dated August 27, 2010 from Dr. William B. Wilkins, a New York licensed physician, only affirms that the treatment facility, Foster Comprehensive Medical P.C., where the plaintiff received treatment from Dr. Wilkins has closed, and that Dr. Wilkins maintains all patients records in his direct custody. The affirmation does not mention the 2001 accident or the plaintiff's physical condition, but the unsworn records attached to the affirmation reference an unrelated, much later car accident which occurred on February 10, 2008. Dr. Wilkins' records also show an unsworn initial report dated February 11, 2008. A separate writing, made "under penalties of perjury" and signed by an unclearly identified individual, states that the plaintiff's "prognosis . . . in regard to a full and complete recovery is good." The unaffirmed records, in any event, indicate that the plaintiff received treatment, including physical therapy, over the course of 2008 and that Workers' Compensation insurance from the Downtown Corp./Porshe Taxi Inc. financed such treatment. Workers' Compensation insurance, like the plaintiff's social disability payments, thus negated a lack of funding to explain the gap in treatment regarding his 2001 accident.
The plaintiff is silent about his 2008 accident in any of his pleadings. The medical reports regarding the 2008 accident outline the plaintiff's pain as similar to what he alleges to have experienced since the subject 2001 accident. The records also indicate that he never informed the treating physicians for his 2008 accident that he was previously involved in the subject 2001 accident. Unsworn records from Nolia Medical, P.C., dated July 9, 2008, note that his past medical history was "noncontributory" to Mr. Alamin's complaints of neck pain and lower back pain stemming from the 2008 accident. Similar unsworn and apparently undated records from the Foster Comprehensive Medical P.C. note that the plaintiff specifically "denies" any "past medical history" of either "medical, surgical or traumatic" events (emphasis added). However, the dynamic range of motion testing conducted by Dr. Wilkins upon the plaintiff in February of 2008, though unsworn, finds a normal range of motion similar to the levels found by the defendants' orthopedist.
Dr. Crane's January 13, 2009 examination of the plaintiff, about 18 months after the plaintiff's own physician, Dr. Krishna, evaluated his level of mobility and pain, is left as the only recent examination of the plaintiff about the injuries sustained in the 2001 accident. That January 13, 2009 examination by Dr. Crane concluded that the plaintiff has unrestricted range of motion in his spine. Hassan Alamin has thus failed to raise a triable factual issue that he suffered a "serious injury" under Insurance Law § 5102 (d). Accordingly, it is
ORDERED that the defendants' summary judgment cross motion is granted on the issue of serious injury, and the complaint is dismissed for lack of a serious injury sustained in the 2001 accident, the subject of this action; and it is further
ORDERED that the plaintiff's request to dismiss the defendants' cross motion and for sanctions is denied as academic.
The foregoing constitutes the decision, order and judgment of the court.