Opinion
5019-03.
Decided December 12, 2005.
Cassisi Cassisi, P.C., Mineola, NY, Attorney for Plaintiff.
Theodore A. Stamas, Esq., Carle Place, NY, Attorneys for defendant.
Notice of Motion dated May 26, 2005; Affirmation dated May 26, 2005; Exhibits A through H annexed thereto; Affirmation in Opposition dated July 19, 2005; Exhibits A through D annexed thereto; Reply Affirmation dated August 31, 2005; and upon due deliberation; it is
ORDERED, that the motion by defendant, pursuant to CPLR 3212, for an Order directing the entry of summary judgment in favor of defendant and dismissing the complaint on the ground that the plaintiff has not met the "serious injury" threshold requirement of Insurance Law § 5102(d) thereby barring her claim for non-economic loss, is granted.
The underlying action is one to recover damages for personal injuries allegedly sustained by the plaintiff as a result of a motor vehicle accident that occurred on April 27, 2002 on Deer Park Avenue at the intersection of Grand Boulevard, Deer Park, New York. The plaintiff maintains that he suffered a "serious injury" pursuant to Insurance Law § 5102(d). The defendant contends that the injuries allegedly suffered by the plaintiff do not meet the statutory threshold requirement of "serious injury" and must be dismissed as a matter of law.
The plaintiff in his bill of particulars, dated November 3, 2003, stated that he sustained the following injuries, inter alia: two herniated discs and two bulging discs in the cervical spine; five herniated discs and one bulging disc in the thoracic spine; and two herniated discs and one bulging disc in the lumbosacral spine as a result of the subject motor vehicle accident. At his deposition, the plaintiff confirmed that he was not taken to the hospital from the accident scene and in fact, did not seek medical attention until a few days later. He also stated that at the time of the accident and his subsequent recovery period, he was on leave from his place of employment.
In support of the instant motion, the defendant has submitted the affirmed medical report of Michael Brooks, M.D., an orthopedic surgeon, who examined the plaintiff on January 6, 2005. The subject report is also based upon pertinent medical records, physical therapy records, MRI reports, and MRI review reports. It was reported that during the physical examination the plaintiff complained only of mid-back pain. Brooks indicated that none of the medical records or reports included any range of motion testing in the cervical spine or thoracolumbar spine. While he did conclude that the plaintiff may have sustained sprain type injuries as a result of the subject accident, he found such injuries were superimposed by significant pre-existing degenerative arthritic conditions. Overall, Brooks found that the physical examination was not remarkable in any way and there were no causally related objective findings to substantiate the plaintiff's subjective complaints of pain. Neither were there findings of any injuries that would prevent the plaintiff from performing normal work-related or daily living activities without restriction. Brooks did not find the plaintiff to be disable in any way.
Dr. Brooks identified the type of testing he performed in reaching his conclusions, including visual inspection of the dorsal/lumbar spine, testing same with palpatation and for deep tendon reflexes; testing extension, flexion and left and right rotation of the cervical spine; straight leg raising in the sitting and supine position; testing for flexion, abduction, internal and external rotation, grip strength, and strength of flexors and extensors against resistance of the upper extremities; deep tendon reflex testing of the biceps and triceps as well as the wrists and elbows; and testing of the tendon reflexes of the plaintiff's lower extremities.
The plaintiff's actual MRI films of his thoracic, cervical and lumbar spines were reviewed by Dr. David A. Fisher, a board certified radiologist who issued three separate radiological review reports dated March 11, 2004. Fisher opined that the plaintiff was suffering from diffuse degenerative changes throughout the thoracic spine, with such changes representing a long-standing pre-existing condition. With regard to the cervical spine MRI films, Fisher noted degenerative changes at several levels with mild disc bulging and concluded that this degeneration pre-existed the subject accident. Finally, Fisher noted degenerative changes in the plaintiff's lumbosacral spine at L4-L5 with an accompanying disc bulge with no definitive herniation seen. Based upon his examination of the MRI films, Dr. Fisher found no evidence of traumatic injury or injury causally related to the subject motor vehicle accident.
In response to the motion, the plaintiff has submitted opposition, which includes affidavits by the plaintiff and his counsel. The plaintiff's affidavit consists of self-serving statements, without medical substantiation, and is insufficient to sustain his burden (see, e.g., Wyatt v. Eastern Investigative Bureau, Inc., 273 AD2d 226, 708 N.Y.S.2d 472; Frank v. Jones, 259 AD2d 517, 686 N.Y.S.2d 110; Caruso v. Rotundi, 248 AD2d 425, 668 N.Y.S.2d 948). The affirmation of plaintiff's counsel is insufficient as he has no personal knowledge of the facts. Carpolk v. Friedman, 269 AD2d 349, 704 N.Y.S.2d 94; Sloan v. Schoen, 251 AD2d 319, 673 N.Y.S.2d 1017.
The plaintiff's opposition also includes the medical affirmation of Mike Pappas, D.O. Based upon his examination of the plaintiff on June 20, 2005, three years after the accident, Dr. Pappas has opined that the plaintiff's disc injuries are causally related to the subject accident. There is no indication that Pappas reviewed the MRI films taken of the plaintiff.
The question of whether or not a plaintiff has established a prima facie case of a serious injury rests with the Court in the first instance. Licari v. Elliot, 57 NY2d 230, 455 N.Y.S.2d 570. The case law has repeatedly confirmed the need for submission of objective medical evidence in admissible form in order for the plaintiff to overcome a prima facie showing of "no serious injury" by the defendant. See, Jenkins v. Diamond, 308 AD2d 510, 764 N.Y.S.2d 857; DeJesus v. Grazadrei, 302 AD2d 554, 755 N.Y.S.2d 302; Dominguez-Gionta v. Smith, 306 AD2d 432, 761 N.Y.S.2d 310. Based on the foregoing, the Court finds that the defendant has established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), thereby shifting the burden to the plaintiff to submit sufficient evidence to raise a triable issue of fact on that issue (see, Gaddy v. Eyler, 79 NY2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).
With regard to the plaintiff's opposition, in the form of the Pappas affirmation, the examining doctor references reports by another medical provider and does not indicate that he reviewed the actual MRI films. He did not perform additional MRI studies as part of his June 20, 2005 examination of the plaintiff, instead relying on reports that were more than three years old, together with the plaintiff's subjective reports of pain. Such information is insufficient to defeat the summary judgment motion of the defendant. See, Friedman v. U-Haul Truck Rental, 216 AD2d 266, 627 N.Y.S.2d 765. While the plaintiff has attributed his two year lapse in treatment to a denial of benefits from his no-fault carrier and his inability to pay for continued treatment out-of-pocket, no explanation has been offered as to why he did not seek additional care and/or treatment through private insurance offered by his employer, American Airlines. Under the facts presented, this insufficiently explained two year gap in treatment compels a finding that the plaintiff did not sustain a serious injury. See, Graves v. Liu, 273 AD2d 440, 710 N.Y.S.2d 113; Stowe v. Simmons, 253 AD2d 422, 676 N.Y.S.2d 638.
While the plaintiff has alleged bulging discs, reports of disc protrusion or bulging do not establish that a plaintiff has sustained a permanent injury. Gabinelli v. Gergardi, 175 AD2d 468, 469, 572 N.Y.S.2d 516. Although a plaintiff may submit evidence as to bulges and herniations, this Department has held that "such injuries do not, in and of themselves constitute a serious injury." Guzman v. Paul Michael Management, 266 AD2d 508, 509, 698 N.Y.S.2d 719. It has also been held that sprains and strains are insufficient as a matter of law to establish that a plaintiff sustained a "serious injury" under the Insurance Law (see, Godden v. Carmen, 169 AD2d 812, 565 N.Y.S.2d 181; Tipping-Cestari v. Kilhenny, 174 AD2d 663, 571 N.Y.S.2d 525. Similarly, "mere subjective complaints of pain alone, as well as medical opinions clearly based upon such complaints, are insufficient to raise a triable issue of fact." Lopez v. Zangrillo 251 AD2d 382, 674 N.Y.S.2d 107; Barrett v. Howland, 202 AD2d 383, 384, 608 N.Y.S.2d 681.
The Pappas report, dated more than three years after the accident, is insufficient to raise a question of fact as to whether the plaintiff suffered a serious injury, inasmuch as it fails to indicate any objective basis upon which the physician determined the degrees of limitation of motion allegedly suffered, and was clearly tailored to meet the statutory requirements (see, Lopez v. Senatore, 65 NY2d 1017, 494 N.Y.S.2d 101; Konkowski v. Hoare, 240 AD2d 638, 659 N.Y.S.2d 1006; Lincoln v. Johnson, 225 AD2d 593, 639 N.Y.S.2d 124).
Based on the aforesaid, the Court finds that the defendant, with sufficient evidence in admissible form, has demonstrated that plaintiff has not suffered a "serious injury" as a matter of law (see, Lowe v. Bennett, 122 AD2d 728, aff'd., 69 NY2d 701) and plaintiff has failed to produce evidence to show that he sustained a serious injury pursuant to Insurance Law § 5102(d), (see, Zoldas v. Louise Cab Corp., 108 AD2d 378).
Accordingly, based upon the totality of the evidence submitted and the law, the Court finds that the plaintiff has failed to establish that he has sustained a "serious injury" as a matter of law, therefore rendering summary judgment dismissing the complaint as the appropriate remedy at this juncture. Asaf v. Ropog Cab Corp., 153 AD2d 520.
The foregoing constitutes the Order of this Court.