Opinion
No. 202/11.
2012-02-10
Kemoy THOMAS, Plaintiff, v. Sheldon M. SMITH, Defendant.
Mendolia & Stenz for Defendant and Martin, Fallon & Mulle for Plaintiff.
AUGUSTUS C. AGATE, J.
Upon the foregoing papers it is ordered that this motion by defendant is decided as follows:
Plaintiff allegedly sustained serious injuries to her right eye while she was a passenger in a vehicle owned and operated by defendant, which was involved in an accident on September 12, 2010 near the intersection of West Broadway and Franklin Place in Nassau County, New York. Plaintiff commenced the instant action to recover damages for negligence. Defendant now seeks summary judgment on the ground that the plaintiff has not sustained a serious injury within the meaning of Insurance Law § 5102(d).
The issue of whether plaintiff has made a prima facie showing of serious injury is a matter of law, to be determined in the first instance by the court. (Licari v. Elliott, 57 N.Y.2d 230, 237 [1982];Charles v. U.S. Fleet Leasing, 140 A.D.2d 481, 481 [1988].) 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. ( see Grossman v. Wright, 268 A.D.2d 79, 84 [2000];Turchuk v. Town of Wallkill, 255 A.D.2d 576, 576 [1998].) With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact as to whether a serious injury was sustained within the meaning of the Insurance Law. ( see Gaddy v. Eyler, 79 N.Y.2d 955, 957 [1992].)
Defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). (Toure v. Avis Rent–A–Car Sys., Inc., 98 N.Y.2d 345, 350 [2002].) Defendant submits the affirmed report of Dr. Harvey Rosenblum, an ophthalmologist, who examined the plaintiff on July 19, 2011. According to Dr. Rosenblum, there “were no orbital deformities” and “slit lamp examination was completely normal.” He also found that the “conjunctivae were not injected” and the “corneae were clear.” In addition, Dr. Rosenblum stated that the “irides were normal”, “lenses were clear”, and “dilated funduscopy failed to reveal any peripheral retinal tears or detachments ...” Dr. Rosenblum opined that there is “no evidence of any damage or injury to the right eye” and “visual acuity is completely normal.” He further opined that there was “0% visual disability.”
In opposition to the motion, plaintiff fails to raise a triable issue of fact as to the existence of a serious injury to her right eye. Plaintiff submits the affirmed report of Dr. Mark S. Flugman, dated March 10, 2011. Dr. Flugman notes that plaintiff sustained “endothelial cell damage.” He states that this “ can result in a corneal transplant and life long treatment and repeated surgery.” He also states that the plaintiff is “predisposed for retinal holes and retinal detachment.” However, plaintiff has not sustained any retinal damage, and Dr. Flugman's opinion as to future injuries is speculative. ( see Kranis v. Biederbeck, 83 A.D.3d 903, 904 [2011].) Further, Dr. Flugman last examined plaintiff on December 14, 2010. Thus, there is no evidence that plaintiff underwent a recent examination. (Jean v. Labin–Natochenny, 77 A.D.3d 623, 624 [2010];Clarke v. Delacruz, 73 A.D.3d 965, 965 [2010].)
Plaintiff's reliance on Wheeler v. Arpi, 32 Misc.3d 1211(A), 2011 WL 2651861 to support her position that her eye injury constitutes a serious injury is misplaced. In Wheeler, there was medical evidence by an ophthalmologist that plaintiff sustained a detached retina and sharply impaired vision. As noted above, Dr. Flugman did not find any impaired vision and plaintiff testified at her deposition that she did not have any pain in her eye. Further, unlike Wheeler, plaintiff did not have a detached retina.
Accordingly, this motion by defendant for summary judgment is granted, and the action is dismissed.