Opinion
Index No. 21425/07
04-14-2015
RAUL TORRES, Plaintiff, v. LICA MAE TAXI, INC. and IBRAHIM A. KHALED, Defendants.
Short Form Order Present: HONORABLE HOWARD G. LANE Justice Motion Date March 4, 2015 Motion Cal. No. 145 Motion Sequence No. 1
| PapersNumbered | |
|---|---|
| Notice of Motion-Affidavits-Exhibits | 1-5 |
| Opposition | 6-8 |
| Reply | 9-10 |
| Cross Motion | 11-13 |
| Opposition | 14-16 |
| Reply | 17-18 |
Upon the foregoing papers it is ordered that this motion by defendants for summary judgment dismissing the complaint of plaintiff, Raul Torres, pursuant to CPLR 3212, on the ground that plaintiff has not sustained a serious injury within the meaning of the Insurance Law § 5102(d)is decided as follows:
This action arises out of an automobile accident that occurred on September 29, 2006. Defendants have submitted proof in admissible form in support of the motion for summary judgment, for all categories of serious injury. Defendants submitted inter alia, affirmed reports from two independent examining and/or evaluating physicians (a neurologist and an orthopedist) and plaintiff's own examination before trial transcript testimony.
APPLICABLE LAW
Under the "no-fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained (Licari v. Elliot, 57 NY2d 230 [1982]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York Univ. Medical Center, 64 NY2d 851[1985]). In the present action, the burden rests on defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury." (Lowe v. Bennett, 122 AD2d 728 [1st Dept 1986], affd, 69 NY2d 701, 512 NYS2d 364 [1986]). When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury (Licari v. Elliot, supra; Lopez v. Senatore, 65 NY2d 1017 [1985]).
In support of a claim that plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physician or the unsworn reports of plaintiff's examining physician (Pagano v. Kingsbury, 182 AD2d 268[2d Dept 1992]). Once the burden shifts, it is incumbent upon plaintiff, in opposition to defendant's motion, to submit proof of serious injury in "admissible form". Unsworn reports of plaintiff's examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment (Grasso v. Angerami, 79 NY2d 813 [1991]). Thus, a medical affirmation or affidavit which is based on a physician's personal examination and observations of plaintiff, is an acceptable method to provide a doctor's opinion regarding the existence and extent of a plaintiff's serious injury (O'Sullivan v. Atrium Bus Co., 246 AD2d 418 [1st Dept 1998]). Unsworn MRI reports are not competent evidence unless both sides rely on those reports (Gonzalez v. Vasquez, 301 AD2d 438 [1st Dept 2003]; Ayzen v. Melendez, 749 NYS2d 445 [2d Dept 2002]). However, in order to be sufficient to establish a prima facie case of serious physical injury the affirmation or affidavit must contain medical findings, which are based on the physician's own examination, tests and observations and review of the record rather than manifesting only the plaintiff's subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the CPLR to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice (see, CPLR 2106; Pichardo v. Blum, 267 AD2d 441 [2d Dept 1999]; Feintuch v. Grella, 209 AD2d 377 [2d Dept 2003]).
In any event, the findings, which must be submitted in a competent statement under oath (or affirmation, when permitted) must demonstrate that plaintiff sustained at least one of the categories of "serious injury" as enumerated in Insurance Law § 5102(d) (Marquez v. New York City Transit Authority, 259 AD2d 261 [1st Dept 1999]; Tompkins v. Budnick, 236 AD2d 708 [3d Dept 1997]; Parker v. DeFontaine, 231 AD2d 412 [1st Dept 1996]; DiLeo v. Blumberg, 250 AD2d 364 [1st Dept 1998]). For example, in Parker, supra, it was held that a medical affidavit, which demonstrated that the plaintiff's threshold motion limitations were objectively measured and observed by the physician, was sufficient to establish that plaintiff has suffered a "serious injury" within the meaning of that term as set forth in Article 51 of the Insurance Law. In other words, "[a] physician's observation as to actual limitations qualifies as objective evidence since it is based on the physician's own examinations." Furthermore, in the absence of objective medical evidence in admissible form of serious injury, plaintiff's self-serving affidavit is insufficient to raise a triable issue of fact (Fisher v. Williams, 289 AD2d 288 [2d Dept 2001]).
DISCUSSION
A. Defendants established a prima facie case that plaintiff did not suffer a "serious injury" as defined in Section 5102(d) , for all categories .
The affirmed report of defendants' independent examining orthopedist, Lisa Nason, M.D., indicates that an examination conducted on August 18, 2014 revealed a diagnosis of: resolved alleged cervical and lumbar spine injury; resolved alleged rib injury; resolved alleged right hip injury; resolved alleged right lower leg injury; and resolved alleged bilateral knee injury. She opines that there is no evidence of permanency or residuals. Dr. Nason concludes that plaintiff can perform pre-accident activities of daily living without restrictions.
The affirmed report of defendants' independent examining neurologist, Jean Robert Desrouleaux, M.D., indicates that an examination conducted on August 25, 2014 revealed a diagnosis of: resolved alleged dizziness; resolved alleged injury to the cervical and lumbar spine; and pre-existing scoliosis and spinal bifida. He opines that plaintiff has no permanency or residual effect. Dr. Desrouleaux concludes that plaintiff can function in pre-accident capacity and carry out work duties and day-to-day activities without neurological restriction.
Additionally, defendants established a prima facie case for the category of "90/180 days." The plaintiff's examination before trial transcript testimony indicates that: he was not employed at the time of the accident and he gave himself thirty (30) days of "bed rest" immediately after the accident. Such evidence shows that the plaintiff was not curtailed from nearly all activities for the bare minimum of 90/180, required by the statute.
The aforementioned evidence amply satisfied defendants' initial burden of demonstrating that plaintiff did not sustain a "serious injury." Thus, the burden then shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law (see, Gaddy v. Eyler, 79 NY2d 955 [1992]). Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint (see, Licari v. Elliott, supra).
B. Plaintiff fails to raise a triable issue of fact
In opposition to the motion, plaintiff submitted: an attorney's affirmation, photographs of plaintiff's arm, plaintiff's own affidavit, an unsworn narrative report of plaintiff's physician, Richard Birrer, M.D., two sworn narrative reports of plaintiff's physician, Richard Birrer, M.D., and two unsworn narrative reports of plaintiff's physician, Jae O. Park, M.D.
Medical records and reports by examining and treating doctors that are not sworn to or affirmed under penalties of perjury are not evidentiary proof in admissible form, and are therefore not competent and inadmissible (see, Pagano v. Kingsbury, 182 AD2d 268 [2d Dept 1992]; McLoyrd v. Pennypacker, 178 AD2d 227 [1st Dept 1991]). Therefore, unsworn reports of plaintiff's examining doctors will not be sufficient to defeat a motion for summary judgment (see, Grasso v. Angerami, 79 NY2d 813 [1991]).
Plaintiff's medical evidence failed to raise issues of fact. Plaintiff failed to submit a medical affirmation detailing a recent examination of plaintiff, a necessary requirement to rebutting defendants' prima facie case (see, Sauer v. Marks, 278 AD2d 301 [2d Dept 2000]; Grossman v. Wright, 268 AD2d 79 [2d Dept 2000]; Kauderer v. Penta, 261 AD2d 365 [2d Dept 1999]). The most recent medical evidence provided only dates back to the 2007 and the instant motion was made on November 10, 2014.
There also exists an unexplained cessation in treatment. The record reflects that plaintiff stopped receiving treatment in 2007. The Court of Appeals held in Pommells v. Perez, 4 NY3d 566 (2005), that a plaintiff who terminates therapeutic measures following the accident, while claiming "serious injury," must offer some reasonable explanation for having done so. Courts applying the Pommels standard have consistently held that in order for the explanation to be considered reasonable it must be "concrete and substantiated by the record." (Gomez v. Ford Motor Credit Co., 10 Misc 3d 900 [Sup Ct, Bronx County 2005]). The plaintiff's experts do not provide any information concerning an explanation for apparent cessation in treatment (Medina v. Zalmen Reis & Assocs., 239 AD2d 394 [2d Dept 1997]; Wang v. Harget Cab Corp., 47 AD3d 777 [2d Dept 2008]; Delgado v. Bernard, 23 Misc3d 1131A [Sup Ct, Bronx County 2009]; Peter v. Palencia, 2008 NY Slip Op 32862U [Sup Ct, Nassau County 2008]. (Id). Moreover, plaintiff's self-serving affidavit concerning his cessation in medical treatment without medical authorization is entitled to little weight and is insufficient to raise an issue of fact (see, Fisher v. Williams, 289 AD2d 288 [2d Dept 2001]; Zoldas v Louise Cab Corp., 108 AD2d 378, 383 [1st Dept 1985]).
It is well settled that a scar may be deemed a significant disfigurement, and therefore a "serious injury" within the meaning of Insurance Law § 5102(d) if a reasonable person viewing plaintiff's body in its altered state would regard the condition as unattractive, objectionable, or as the object of pity and scorn (see, Shirmans v. Mannah, 300 AD2d 465; Loiseau v. Maxwell, 256 AD2d 450; Hutchinson v. Beth Cab Corp., 204 AD2d 151). As plaintiff has submitted no medical evidence in opposition regarding the scar, no issue of fact exists as to whether plaintiff has suffered a significant disfigurement, which would qualify as a "serious injury" pursuant to Insurance Law § 5102 (see, e.g., Kopplemann v. Lepler, 135 AD2d 507). Plaintiff's doctors fail to mention any scar, let alone, state that the scar was caused by the subject motor vehicle accident. The photographic evidence submitted is not sufficient without a connection to the subject accident does not raise a triable issue as to whether a reasonable person viewing plaintiff's body in its altered state would regard the condition as unattractive, objectionable, or as the object of pity and scorn (see, Shirmans v. Mannah, 300 AD2d 465; Loiseau v. Maxwell, 256 AD2d 450; Hutchinson v. Beth Cab Corp., 204 AD2d 151).
Also, the plaintiff has failed to come forward with sufficient evidence to create an issue of fact as to whether the plaintiff sustained a medically-determined injury which prevented him from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying accident (Savatarre v. Barnathan, 280 AD2d 537 [2d Dept 2001]). The record must contain objective or credible evidence to support the plaintiff's claim that the injury prevented plaintiff from performing substantially all of his customary activities (Watt v. Eastern Investigative Bureau, Inc., 273 AD2d 226 [2d Dept 2000]). When construing the statutory definition of a 90/180-day claim, the words "substantially all" should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment (see, Gaddy v. Eyler, 79 NY2d 955; Licari v. Elliott, 57 NY2d 230 [1982]; Berk v. Lopez, 278 AD2d 156 [1st Dept 2000], lv denied 96 NY2d 708 [2001]). Plaintiff fails to include experts' reports or affirmations which render an opinion on the effect the injuries claimed may have had on the plaintiff for the 180-day period immediately following the accident. As such, plaintiff's submissions were insufficient to establish a triable issue of fact as to whether plaintiff suffered from a medically determined injury that curtailed him from performing his usual activities for the statutory period (Licari v. Elliott, 57 NY2d 230, 236 [1982]). Accordingly, plaintiff's claim that his injuries prevented him from performing substantially all of the material acts constituting his customary daily activities during at least 90 of the first 180 days following the accident is insufficient to raise a triable issue of fact (see, Graham v. Shuttle Bay, 281 AD2d 372 [1st Dept 2001]; Hernandez v. Cerda, 271 AD2d 569 [2d Dept 2000]; Ocasio v. Henry, 276 AD2d 611 [2d Dept 2000]).
Furthermore, plaintiff's attorney's affirmation is not admissible probative evidence on medical issues, as plaintiff's attorney has failed to demonstrate personal knowledge of the plaintiff's injuries (Sloan v. Schoen, 251 AD2d 319 [2d Dept 1998]).
Moreover, plaintiff's self-serving affidavit is "entitled to little weight" and is insufficient to raise triable issues of fact (see, Zoldas v. Louise Cab Corp., 108 AD2d 378, 383 [1st Dept 1985]; Fisher v. Williams, 289 AD2d 288 [2d Dept 2001]).
Therefore, plaintiff's submissions are insufficient to raise a triable issue of fact (see, Zuckerman v. City of New York, 49 NY2d 557 [1980]).
Accordingly, the defendants' motion for summary judgment is granted in its entirety and the plaintiff's Complaint is dismissed as to all categories.
As plaintiff's Complaint is dismissed, plaintiff's motion for partial summary judgment on liability grounds is rendered moot.
The clerk is directed to enter judgment accordingly.
Movant shall serve a copy of this order with Notice of Entry upon the other parties of this action and on the clerk. If this order requires the clerk to perform a function, movant is directed to serve a copy upon the appropriate clerk.
The foregoing constitutes the decision and order of this Court. Dated: April 14, 2015
/s/ _________
Howard G. Lane, J.S.C.