Gochnour v. Quaremba

Full title: ADAM GOCHNOUR, an infant by his father and natural guardian, RICHARD…

Court: Supreme Court of the State of New York, Richmond County

Date published: Oct 26, 2007

2007 N.Y. Slip Op. 33531 (N.Y. Sup. Ct. 2007)

Opinion

0012193/2007.

October 26, 2007.

DECISION ORDER

JOSEPH J. MALTESE, Judge.

The following items were considered in the review of this motion for summary judgment

Papers Numbered Notice of Motion and Affidavits Annexed 1 Answering Affidavits 2 Replying Papers 3 Exhibits Attached to Papers Memorandum of Law

Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:

The defendants seek summary judgment on the ground that the plaintiffs have not sustained a "serious injury" as defined in Insurance Law § 5102(d).¹ The serious injury threshold set forth in Insurance Law § 5104(a) can only be established under these categories. ( Coon v. Brown, 192 AD2d 908 [3rd Dept 1993]; Daviero v. Johnson, 88 AD2d 732 [3rd Dept 1982].) Thus, the mere fact that one has been injured, even seriously, does not establish that a "serious injury" has been sustained. ( Jones v. Sharpe, 98 AD2d 859 [3rd Dept 1989], aff'd 63 NY2d 645 .) Rather, a plaintiff must show that he or she sustained a personal injury, i.e., bodily injury, sickness or disease ( 11 NYCRR § 65-2.1 [e]), that results in one of the nine serious injury threshold categories. ( See, Van Norstrand v. Regina, 212 AD2d 883 [3rd Dept 1995].)

1 A serious injury must be a personal injury, "[W]hich 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 constitutes 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" (Insurance Law § 5102 [d]).

It is important to keep in mind the policies underlying the enactment of the No-Fault Law and the law's structure when litigating no-fault related issues. Courts have consistently held that the No-Fault Law must be interpreted to fulfill the policies the legislature had in mind. ( See, Oberly v. Bangs Ambulance, 96 NY2d 295; Scheer v. Koubek, 70 NY2d 678; Maida v. State Farm, 66 AD2d 852 [2nd Dept 1978].) It is for the court to decide in the first instance whether a plaintiff has made a prima facie showing of "serious injury" ( see, e.g., Licari v. Elliott, 57 NY2d 230, 237).

A defendant can establish that the 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. Where defendant's 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 ( see, Kordana v. Pomellito, 121 AD2d 783, appeal dismissed, 68 NY2d 848). The burden, in other words, shifts to 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; Grossman v. Wright 268 AD2d 79 [2^nd Dept 2000]). The plaintiff in such a situation must present objective evidence of the injury. The mere parroting of language tailored to meet statutory requirements is insufficient (id). Additionally, a plaintiff's subjective claim of pain and limitation of motion must be sustained by verified objective medical findings which are based on a recent examination of the plaintiff.

In the current action, the defendants rely upon the findings and affirmed reports of Doctors Robert Israel, M.D., Naunihal Singh, MD., and Stephen Lastig, MD., all of whom performed independent medical examinations upon the plaintiff.

Dr. Israel examined the plaintiff conducting both range of motion tests and strength tests. As a result of this examination, Dr. Israel concluded that the plaintiff's cervical and thoracic spine regions were "normal and from an orthopedic point of view, negative for any disability or limitation." As detailed in his report, Dr. Singh found that the plaintiff suffered "no disability or limitation whatsoever and no evidence of permanent neurological impairment." In addition, Dr. Lastig concluded, after reviewing two separate MRIs of the plaintiff's cervical and lumbar spine regions, that the bulges found in the plaintiff's cervical spine were "degenerative in origin and not related to this accident."

In order to successfully oppose a motion for summary judgment on the issue of whether an injury is serious within the meaning of Insurance Law § 5102 (d), the plaintiff's expert must submit quantitative objective findings in addition to an opinion as to the significance of the injury. ( Grossman v. Wright 268 AD2d 79 [2^nd Dept 2000]). Here, the plaintiff relies upon the affidavit of Dr. Adolph B. Meyer. Dr. Meyer found, after conducting range of motion tests, that the plaintiff's cervical and lumbar spine regions were permanently restricted and limited in motion. Dr. Meyer further concluded, "that Ms. Gochnour's injuries were caused, to a reasonable degree of medical certainty, by the automobile accident which took place on September 6, 2001."

A motion for summary judgment must be denied if there are "facts sufficient to require a trial of any issue of fact (CPLR § 3212[b]). Granting summary judgment is only appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact. "Moreover, the parties competing contentions must be viewed in a light most favorable to the party opposing the motion" ( Marine Midland Bank, N.A., v. Dino, et al., 168 AD2d 610 [2^nd Dept 1990]). Summary judgment should not be granted where there is any doubt as to the existence of a triable issue or where the existence of an issue is arguable ( American Home Assurance Co., v. Amerford International Corp., 200 AD2d 472 [1^st Dept 1994]).

Here, Dr. Meyer's affidavit is sufficient to raise a triable issue of fact as to whether plaintiff sustained a "significant limitation of use of a body function or system" ( see, Livai v. Amoroso, 239 AD2d 565 [2nd Dept 1997]) and therefore, summary judgment is not appropriate.

Accordingly, it is hereby:

ORDERED, that the defendant's motion for summary judgment is denied; and it is further

ORDERED, that all parties return to DCM 3 on November 19, 2007 for a pretrial conference.