Opinion
2002-04460
Submitted January 22, 2003.
July 14, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Dollard, J.), dated March 7, 2002, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Alfred Howard did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Pazer Epstein (Seligson, Rothman Rothman, New York, N.Y. [Martin S. Rothman, Matthew Fein, and Alyne I. Diamond] of counsel), for appellants.
Jennings, Hockett, Kannengieser, Schuster Tafuri (Diamond, Cardo, King, Peters Fodera, New York, N.Y. [Deborah F. Peters] of counsel), for respondents.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
In response to the defendants' prima facie showing that Alfred Howard, the injured plaintiff (hereinafter the plaintiff), did not sustain a serious injury, the plaintiffs submitted, inter alia, the affirmation of Kumar S. Reddy, M.D. Dr. Reddy averred that in the summer of 1998, subsequent to the accident on July 2, 1998, his examination of the plaintiff revealed a 20% loss of range of motion of the plaintiff's neck. Dr. Reddy also performed a straight leg-lift examination on the plaintiff, which showed that the range of motion in the plaintiff's left leg was limited to 60 degrees. A subsequent magnetic resonance imaging examination of the plaintiff's lumbar spine, relied on by Dr. Reddy, revealed disc herniations in the lumbar spine.
According to the plaintiff, after Dr. Reddy prescribed physical therapy, he was treated at least twice a week, for at least the next 1 ½ years at the Center for Rehabilitation. Additionally, during that time he continued to see Dr. Reddy periodically. Subsequently, his treatment was continued by Dr. Price, the plaintiff's family physician.
On August 28, 2001, Dr. Reddy again examined the plaintiff. He performed numerous range of motion tests and stated that he "continued to find the limitations of motion in [the plaintiff's] back and straight leg rising [sic] deficiencies in [the plaintiff's] leg," and concluded from these examinations and the fact that the limitations had still not resolved themselves that the plaintiff's injuries were permanent.
Contrary to the position of our dissenting colleague, the affirmation sufficiently, albeit barely, detailed the objective medical tests performed by Dr. Reddy. Furthermore, it is clear that the plaintiff still suffered the same limitations as were initially observed, that is, a 20% loss of range of motion in his neck and straight leg raising that was limited to 60 degrees in one leg. Thus, the plaintiffs' proof was sufficient to raise a triable issue of fact as to whether or not the plaintiff sustained a serious injury under Insurance Law § 5102(d) (see Pech v. Yael Taxi Corp., 303 A.D.2d 733; Risbrook v. Coronamos Cab Corp., 244 A.D.2d 397).
FLORIO, J.P., S. MILLER, TOWNES and MASTRO, JJ., concur.
I respectfully dissent and would affirm the order granting the defendants' motion for summary judgment dismissing the complaint.
In support of their motion for summary judgment, the defendants established a prima facie case that the injured plaintiff did not sustain a serious injury, as defined by Insurance Law § 5102(d), in the subject accident ( see Gaddy v. Eyler, 79 N.Y.2d 955). In opposition to the defendants' motion, the plaintiffs' evidence failed to raise a triable issue of fact on the issue. Much of the evidence submitted by the plaintiffs in opposition to the motion consisted of unsworn medical reports, which should not be considered because they were not submitted in admissible form ( see Grasso v. Angerami, 79 N.Y.2d 813; Buonaiuto v. Shulberg, 254 A.D.2d 384; Ryan v. Xuda, 243 A.D.2d 457). Further, the affirmation of the injured plaintiff's treating physician, Dr. Kumar S. Reddy, was insufficient to defeat the defendants' prima facie showing of their entitlement to summary judgment. Dr. Reddy failed to sufficiently detail what objective medical tests he performed in determining that the injured plaintiff suffered from a loss of range of motion ( see Palasek v. Misita, 289 A.D.2d 313; Monaco v. Davenport, 277 A.D.2d 209; Harewood v. Aiken, 273 A.D.2d 199), and he neither specifically quantified nor qualified the injured plaintiff's alleged loss of range of motion ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345). Further, no explanation was given for the almost three-year gap in treatment ( see Slasor v. Elfaiz, 275 A.D.2d 771; Grossman v. Wright, 268 A.D.2d 79; Cabri v. Myung-Soo Park, 260 A.D.2d 525). Finally, the plaintiffs' evidence failed to establish that the injured plaintiff sustained a medically determined injury which fell within the 90/180 day category of serious injury ( see Licari v. Elliot, 57 N.Y.2d 230; Delpilar v. Browne, 282 A.D.2d 647; Greene v. Miranda, 272 A.D.2d 441; Carpluk v. Friedman, 269 A.D.2d 349). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.