Opinion
6028/07.
Decided October 21, 2008.
Defendant moves seeking an Order granting him summary judgment over and against plaintiffs. Defendant avers that to the extent that plaintiffs did not sustain serious injuries, as defined by the Insurance Law, it is entitled to summary judgment. Plaintiffs oppose the instant motion averring that defendant has failed to establish prima facie entitlement to summary judgment and that questions of fact preclude summary judgment.
For the reasons that follow hereinafter defendant's motion is hereby granted.
The instant action is for alleged personal injuries. Within their bill of particulars plaintiffs allege that on August 3, 2006 plaintiffs were involved in a motor vehicle accident with a vehicle owned and operated by the defendant. Plaintiffs allege that plaintiff EDWIN ORTIZ (Ortiz) sustained injuries, the most serious being a tear of the medial meniscus, requiring arthroscopic surgical repair and disc herniations at C3-C5. It is alleged that plaintiff ELBA BURGOS (Burgos) sustained injuries, the most serious being a herniated disc at C5-C6. It is alleged that plaintiff ABEL VASQUEZ (Vasquez) sustained injuries, the most serious being, disc bulges at C3-C7. Plaintiffs allege that their injuries are serious under all categories of serious injury promulgated by the Insurance Law.
In support of the instant motion, and with regard to Ortiz, defendant submits four sworn reports from David Fisher (Fisher), a radiologist, who discusses his review of radiological studies performed upon Ortiz. Fisher reviews an MRI study performed upon Ortiz' left knee on September 18, 2006. According to Fisher, said study, while there is no evidence of meniscal or ligament tear, it nonetheless evinces knee injury, namely moderate tricompartment osteoarthritis with an ununited ossification of the tibial tuberosity. Said injury, according to Fisher is degenerative in nature, pre-existed the accident herein, and are unrelated to trauma. Fisher reviews an MRI study performed upon Ortiz' left shoulder on September 22, 2006. According to Fisher said study evinces injury, namely bony impingement secondary to acromioclavicular hypertrophic spurring. Said injury, according to Fisher is degenerative in nature, pre-existed the accident herein, and is unrelated to trauma. Fisher reviews an MRI study performed upon Ortiz' left hip on September 21, 2006. Fisher concludes that said study evinces injury to the left hip, namely, osteoarthritis. Said injury, according to Fisher is degenerative in nature, pre-existed the accident herein, and is unrelated to trauma. Fisher reviewed MRI studies performed upon Ortiz' cervical spine on September 20, 2006. Said studies, according to Fisher, evince injury, namely degenerative changes in Ortiz' cervical spine. Said injury, according to Fisher is degenerative in nature, pre-existed the accident herein, and are unrelated to trauma.
With regard to Ortiz, defendant submits a sworn report from Gregory Montalbano (Montalbano), an orthopedic surgeon, who chronicles an examination he performed upon Ortiz on November 30, 2007. In connection with his examination, Montalbano reviewed Ortiz' medical records. Montalbano examined Ortiz' cervical spine noting an absence of spasm and full range of motion in all planes. Flexion was 60 degrees, 60 degrees being normal. Extension was 45 degrees, 45 degrees being normal. An examination of the lumbar spine yielded full range of motion in all planes and an absence of spasm. Flexion was 90 degrees, 90 degrees being normal. Extension was 30 degrees, 30 degrees being normal. Straight leg raising was negative bilaterally. An examination of the shoulders yielded full range of motion bilaterally and an absence of atrophy. Flexion was 180 degrees, 180 degrees being normal. Abduction was 130 degrees, 130 degrees being normal. An examination of the hips yielded full range of motion bilaterally. Flexion was 110 degrees, 110 degrees being normal. External rotation was 45 degrees, 45 degrees being normal. An examination of the knees yielded full range of motion bilaterally and no effusion. Extension was 0 degrees, 0 degrees being normal. Flexion was 130 degrees, 130 degrees being normal. Based on his examination and his review of Ortiz' medical records, Montalbano concludes that all injuries afflicting Ortiz were pre-existing and degenerative in nature. In particular, with regard to Ortiz' left knee, Montalbano notes that on August 4, 2006, when Ortiz was first examined after the accident herein, there was no finding of any acute knee injury such as laceration, echymosis, or swelling. Ortiz was diagnosed with a sprain. Montalbano notes that while Ortiz underwent surgery to repair his left knee, the conditions found during surgery were degenerative, and pre-existing. Thus, Montalbano concludes that all of Ortiz' injuries are degenerative and pre-existed the accident herein.
Defendant submits Ortiz' medical records. Defendant submits a report from Orsuville Cabatu (Cabatu), a physiatrist, who after examining Ortiz on August 4, 2006, concludes that Ortiz has a cervical strain, a left rotator cuff strain, a left knee strain with exacerbation, and a left hip strain with exacerbation. Defendant submits an x-ray report dated September 11, 2006, which describes x-ray studies performed upon Ortiz on August 30, 2006. Said report evinces that degenerative changes at C5-C6, chronic injury to the left shoulder without evidence of recent injury, joint space narrowing in the left hip without evidence of recent injury, and degenerative changes in the left knee without evidence of recent injury. Defendant submit several other records the contents of which shall not be discussed insofar as they merely reiterate the findings in the records just discussed.
Defendant submits a sworn report from Edward Weiland (Weiland), a neurologist, who chronicles an examination he performed upon Ortiz on November 28, 2007. An examination of the cervical spine yielded full range of motion in all planes. Flexion and extension were 60 degrees, 60 degrees being normal. An examination of the lumbar spine yielded full range of motion in all planes. Flexion was 80 degrees, 80 degrees being normal. Extension was 30 degrees, 30 degrees being normal. Straight leg raising was unlimited to 90 degrees. An examination of the left shoulder yielded self restricted range of motion in all planes. Abduction was 160 degrees, 170 degrees being normal. Adduction was 40 degrees, 40 degrees being normal. Weiland concludes that Ortiz was not disabled and was capable of performing all activities of daily living.
Defendant submits Ortiz' deposition transcript, wherein he testified, in pertinent part, as follows. At the time of the accident herein, he was employed by American Development Construction Company, where he was employed as a laborer. A week after this accident and as a result of the same, his employment ceased. The day after the accident herein, plaintiff sought treatment at New York Professional Medical Care. He was treated by Cabatu, and began a course of physical therapy, which ceased in March of 2007. In November of 2006, he underwent knee surgery to repair a torn meniscus on his left knee. After ceasing treatment in March 2007, he continued to see a chiropractor and undergo acupuncture until July 2007.
With regard to Burgos, defendant submits two sworn reports from Fisher, wherein he chronicles his review of radiological studies performed upon Burgos. Fisher reviewed MRI studies performed upon Burgos' cervical spine on September 25, 2006. Fisher concludes that the spine is free of herniations but that degenerative changes can be seen. The degenerative changes, Fisher concludes, pre-exist the accident herein and are unrelated to trauma. Fisher reviewed MRI studies performed upon Burgos' lumbar spine on September 18, 2006. Fisher concludes that the spine is afflicted with degenerative changes at L5-S1. The degenerative changes, Fisher concludes, pre-exist the accident herein and are unrelated to trauma.
Defendant submits a sworn report from Montelbano, who chronicles an examination he performed upon Burgos on January 11, 2008. Montalbano reviewed Burgos' prior medical records. An examination of Burgos' cervical spine yielded no spasm and full range of motion in all planes. Flexion was 60 degrees, 60 degrees being normal. Extension was 45 degrees, 45 degrees being normal. An examination of the lumbar spine yielded no spasm and full range of motion in some planes. Flexion was 50 degrees, 90 degrees being normal. Extension is 10 degrees, 30 degrees being normal. Straight leg raising is negative bilaterally. Montalbano concludes that Burgos' injuries are degenerative, pre-date the accident herein and are not related to trauma. Montalbano bases his conclusion on his examination and upon a review of Burgo's medical records which evince that with regard to her cervical injuries, when she was examined by Cabatu the day after her accident, she was diagnosed with cervical sprain strain. With regard to the lumbar spine, Montalbano's conclusion is again based upon his exam and his review of Burgos' own medical records. Upon being examined one day after the accident herein, Burgos had some diminished range of motion but straight leg raising was negative bilaterally.
Defendant submits Burgos' own medical records. Among the records submitted is a report from Cabuto evincing his examination of Burgos on August 4, 2006. Within said report, Cabuto diagnoses Burgos with cervical and lumbar strain/sprain. The other medical records submitted by defendant, as they relate to Burgos shall not be discussed insofar as they merely reiterate the findings in the records just discussed.
Defendant submits Burgos' deposition transcript, wherein she testified, in pertinent part, as follows. At the time of the accident herein, Burgos was a letter carrier employed by the United State Postal Service. After the accident herein, she did not return to work until December 2006. The day after the accident herein, Burgos saw Cabatu who prescribed physical therapy three times per week through December 2006. Thereafter she sought no further treatment with the exception of Dr. Kim, who she saw for depression and continued to see once a month through the date of her deposition. After the accident herein, Burgos was neither confined to her home or her bed. She left the house and would go shopping.
With regard to Vasquez, defendant submits a sworn report from Fisher, wherein he chronicles his review of a radiological study performed upon Vasquez' cervical spine on September 18, 2006. According to Fisher, said study shows no evidence of any injury whatsoever.
Defendant submits a sworn report from Montalbano, wherein he chronicles an examination he performed upon Vasquez on January 11, 2008. Montalbano reviewed Vasquez' medical records. An examination of the cervical spine yielded no spasm and full range of motion. Flexion was 60 degrees, 60 degrees being normal. Extension was 45 degrees, 45 degrees being normal. An examination of the lumbar spine yielded no spasm and full range of motion. Flexion was 90 degrees, 90 degrees being normal. Extension was 30 degrees, 30 degrees being normal. Straight leg raising was negative bilaterally. Based on his examination and his review of Vasquez' medical records, Montalbano concludes that any injury sustained by Vasquez was degenerative, pre-existed the accident herein and was unrelated to trauma. In particular, Montalbano reviewed Cabatu's records which evince that upon his examination of Vasquez on August 4, 2006, Vasquez was diagnosed with cervical strain/sprain.
Defendant submits Vasquez' medical records, among which is a report from Cabatu evincing that upon his examination of Vasquez on August 4, 2006, he diagnosed him with cervical strain/sprain. The other medical records submitted by defendant, as they relate to Vasquez, shall not be discussed insofar as they merely reiterate the findings in the records just discussed.
Defendant submits Vasquez' deposition transcript wherein, he testified, in pertinent part, as follows. At the time of the accident herein, Vasquez was employed by the United States Postal Service. After the accident herein, he was treated by Cabatu. He began a course of physical therapy three times per week for a four month period. Thereafter, he sought no further treatment. From the date of the accident, until December 2006, Vasquez did not work. Vasquez was never confined to his bed and was confined to his home.
In opposition to the instant motion, plaintiffs submit a copy of this Court's Order dated April 30, 2008, wherein plaintiffs were granted partial summary judgment on the issue of liability.
Plaintiffs submit three sworn affirmations from Cabatu. Within the first affirmation, Cabatu chronicles treatment he rendered to Ortiz. Cabatu first saw Ortiz on August 4, 2006. Upon examining Ortiz he concluded that he was significantly impaired. Ortiz underwent MRI studies to his shoulder, knee and cervical spine. Cabatu concluded that as a result of the accident herein Ortiz sustained internal derangement in his left knee, a tear of the, supra spinatus tendon in his left shoulder, and herniated discs at C3-C5. On November 27, 2006, Ortiz underwent surgery to repair a torn meniscus in his left knee. Cabatu opines that as a result of the accident herein, Ortiz was unable to work for five months after the accident. Ortiz further continues to be disabled as a result of the accident herein.
Within his second affirmation, Cabatu chronicles treatment he rendered to Burgos. Cabatu first saw Burgos on August 4, 2006. Upon examining Burgos he concluded that he was significantly impaired. Burgos underwent MRI studies to her cervical and lumbar spine. Cabatu concluded that as a result of the accident herein Burgos sustained herniated discs at C5-C6 and L5-S1. Cabatu opines that as a result of the accident herein, Burgos was unable to work for four months after the accident. Burgos further continues to be disabled as a result of the accident herein.
Within his third affirmation, Cabatu chronicles treatment he rendered to Vasquez. Cabatu first saw Vasquez on August 4, 2006. Upon examining Vasquez he concluded that he was significantly impaired. Vasquez underwent MRI studies to his cervical spine. Cabatu concluded that as a result of the accident herein Vasquez sustained bulging discs in his cervical spine. Cabatu opines that as a result of the accident herein, Vasquez was unable to work for four months after the accident. Vasquez further continues to be disabled as a result of the accident herein.
The Law and Standard on Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently, any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993). Similarly, unsworn accident reports are inadmissible and cannot be considered by the court. Id.; Reed v. New York Coty Transit Authority, 299 AD2d 330 (2nd Dept. 2002); Hegy v. Coller, 262 AD2d 606 (2nd Dept. 1999). With regard to leases such documents can be admitted and considered for purposes of summary judgment if they are accompanied by an affidavit, which establish that the documents attached are true and accurate copies of documents contained within the proponent's file. DeLeon v. Port Authority of New York and New Jersey, 306 AD2d 146 (1st Dept. 2003). An opponent's failure to object to a business record for which no foundation is laid coupled with the opponent's reliance upon the same allows the court to consider said document in support of a motion for summary judgment. Niagara Frontier Transit Metro System, Inc., 212 AD2d 1027 (4th Dept. 1995).
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).
It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated
[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).
Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgment seeking to have the court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999). Other cases seem to hold that otherwise inadmissable evidence may be used to defeat summary judgment if the inadmissable evidence would be admissible at trial and raises questions of fact. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972); Buckley v. J.A. Jones/GMO ,38 AD3d 461 (1st Dept. 2007); Levbarg v. City of New York, 282 AD2d 239 (1st Dept. 2001); Eitner v. 119 West 71st Street Owners Corp., 253 AD2d 641 (1st Dept. 1998). In Phillips, for example, the court found that evidence submitted in inadmissible form in opposition to summary judgment might be admissible at trial and if so would support plaintiff's cause of action. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). The Court thus denied summary judgment to the defendant. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses testimony and that witnesses' testimony created an issue of fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991). In Buckley, a careful reading evinces that the court found that plaintiff raised an issue of fact sufficient to preclude summary judgment when he submitted an accident report containing hearsay. Buckley v. J.A. Jones/GMO , 38 AD3d 461 (1st Dept. 2007). The report was submitted in admissible form as it was undisputed that the same was created in the ordinary course of business. Id. The court held insofar as said report would be admissible at trial as a business record under CPLR § 4518, said report contained an inconsistent statement, and said report evinced a witness with knowledge, the same raised an issue of fact sufficient to preclude summary judgment. This Court reads the cases just cited as standing for the proposition that hearsay within documents submitted in inadmissable form, if admissible at trial, is sufficient to raise an issue of fact sufficient to preclude summary judgment. This Court still requires that submissions in opposition for summary judgment be submitted in admissible form of that evidence's inadmissibility be excused.
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial. (Internal citations omitted).
See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).
Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano ,16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).
Serious Injury
NY Insurance Law § 5104(a) states that
notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state there shall be no right of recovery for non-economic loss, except in the case of serious injury . . .
NY Insurance Law § 5104(a). NY Insurance Law § 5102(d), defines serious injury as
A personal injury which results in death; dismemberment; significant disfigurement, a fracture, loss of 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 all of the material acts which constitute such persons usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
NY Insurance Law § 5102(d). NY Insurance Law § 5102(c) defines non economic loss as pain and suffering and § 5102(j) defines covered persons as
Any pedestrian injured through the use or operation of, or any owner, operator or occupant of, a motor vehicle which has in effect the financial security provide . . .
NY Insurance Law § 5102(j). The issue of whether a person has established a prima facie case of a serious injury is within the Court's purview and can be decided as a matter of law. Licari v. Elliot, 57 NY2d 230 (1982). The mandates set forth in the insurance law have been echoed and discussed by this Court for years. Clearly, the purpose of this section of the insurance law is to severely limit the number of personal injury lawsuits brought stemming from motor vehicle accidents. Id. In particular, the legislature was concerned with curtailing the number of lawsuits involving minor injuries. Id. In Licari, the Court stated that
Tacit in this legislative enactment is that any injury not falling within the new definition of serious injury is minor and a trial by jury is not permitted under the no fault system.
Id. at 235. Moreover, the Court stated that
. . . plaintiffs in automobile cases no longer have an unfettered right to sue for injuries sustained. Thus, to the extent that the legislature has abrogated a cause of action, the issue is one for the court, in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute.
Id. at 237. Hence, while plaintiffs who have suffered a serious injury can bring a lawsuit to recover non-economic, pain and suffering damages, the legislature intended that the Court first determine whether or not a plaintiff has indeed suffered a serious injury in the first instance. Id. If after a review of the evidence, after a motion for summary judgment or after a trial, it is determined that plaintiff has not suffered a serious injury, then ". . . plaintiff has no claim to assert and there is nothing for a jury to decide." Id. at 238. The insurance law and the legislative intent underlying it clearly favors summary judgment as a vehicle for weeding out those cases which should not be tried.
The majority of serious injury cases where the Court is called upon to decide summary judgment relate to one or more of the last serious injury categories listed within § 5102(d) of the insurance law. These categories are (1) permanent loss of use of a body organ, member, function or system; (2) permanent consequential limitation of use of a body organ or member; (3) significant limitation of use of a body function or system; (4) or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing all of the material acts which constitute such persons usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment. Thus, the discussion that follows hereinafter shall focus exclusively on these categories of the insurance law.
When a defendant seeks summary judgment by alleging that plaintiff's injuries are not serious under the insurance law and that as such plaintiff does not meet the threshold required to maintain a lawsuit, it is incumbent on the defendant to first establish that plaintiff's injuries are not serious as defined by the Insurance Law. Franchini v. Plameri, 1 NY3d 536 (2003); Brown v. Achy , 9 AD3d 30 (1st Dept. 2004). If defendant meets this burden, defendant has established prima facie entitlement to summary judgment. Id. It then becomes incumbent on the plaintiff to submit proof, in admissible form, of the existence of triable issues of fact with regard to the existence of a serious injury. Id; Franchini v. Plameri, 1 NY3d 536 (2003); Gaddy v. Eyler, 79 NY2d 955 (1992); Shinn v. Catanzaro , 1 AD3d 195 (1st Dept. 2003); Nelson v. Distant, 308 AD2d 338 (1st Dept. 2003). Specifically, plaintiff must demonstrate that there is a serious injury under the Insurance Law, that summary judgment is not warranted and that the action mandates resolution by trial. Id. Additionally, and equally important, plaintiff must establish, through admissible medical evidence, that the injuries sustained are causally related to the accident claimed. Pommells v. Perez , 4 NY3d 566 (2005); Chatah v. Iglesias, 5 AD3d 722 (1st Dept. 2004); Vaughan v. Perez, 305 AD2d 101 (1st Dept. 2003); Caraballo v. Pearson, 261 AD2d 565 (1st Dept. 1999); Noble v. Ackerman, 252 AD2d 392 (1st Dept. 1998).
A defendant can satisfy the requisite burden of prima facie entitlement to summary judgment in several ways. A defendant can negate the existence of serious injury using plaintiff's own pleadings. Fortune v. Sacks and Sacks, 272 AD2d 277 (1st Dept. 2000); Craft v. Brantuk, 195 AD2d 438 (2nd Dept. 1993); Grier v. Kuhn, 187 AD2d 559 (2nd Dept. 1992). As a matter of course, a defendant's medical submissions must be based on objective evidence. Black v. Robinson, 305 AD2d 438 (2nd Dept. 2003); Junco v. Ranzi, 288 AD2d 440 (2nd Dept. 2001); Papadonikolakis v. First Fid. Leasing Group, 273 AD2d 299 (2nd Dept. 2001). A defendant's doctor's failure to list the objective tests upon which his conclusion is based warrants denial of defendant's motion on the grounds that said defendant has not established prima facie entitlement to summary judgment. Id. A defendant can submit an affidavit from a doctor who examined the plaintiff and opines that the plaintiff had a normal medical examination. Gaddy v. Eyler, 79 NY2d 955 (1992); Brown v. Achy , 9 AD3d 30 (1st Dept. 2004)(Defendant's doctor concluded that despite MRI reports indicating a herniation, no other objective findings indicated a disc herniation); Shinn v. Catanzaro , 1 AD3d 195 (1st Dept. 2003) (Defendant's doctor asserted that after an examination of the plaintiff, no objective findings demonstrated the existence of an injury as claimed); Nelson v. Distant, 308 AD2d 338 (1st Dept. 2003); Vaughan v. Baez, 305 AD2d 101 (1st Dept. 2003). A defendant can submit an affirmation from an attorney indicating that plaintiff's own medical records and the reports of plaintiff's own doctors do not indicate that plaintiff suffered a serious injury and that plaintiff's injuries were not, in any event, causally related to the accident alleged. Franchini v. Plameri, 1 NY3d 536 (2003). A defendant can submit an attorney affirmation accompanied by other documentary evidence and exhibits, not necessarily medical, which support defendant's contention that plaintiff did not suffer a serious injury. Lowe v. Bennett, 122 AD2d 728 (1st Dept. 1986), affirmed, 69 NY2d 700 (1986). A defendant can point to plaintiff's own deposition testimony to establish that, by plaintiff's own account, plaintiff's injuries were not serious within the meaning of the statute and the case law. Arjona v. Calcano , 7 AD3d 279 (1st Dept. 2004). A defendant meets his/her burden with regard to establishing the absence of a serious injury even if his/her doctor finds restrictions in plaintiff's range of motion. Style v. Joseph , 32 AD3d 212 (1st Dept. 2006) (Court found that defendant met his burden despite doctor's finding that plaintiff had restricted range of motion. Doctor explained that restriction was self imposed). Under such a circumstance, the doctor must explain the reasons for the restricted range of motion and why the same are not related to the accident. Id. Similarly, a defendant meets his/her burden even if his/her doctors find evidence of injuries in medical records such as MRI reports. Brown v. Achy , 9 AD3d 30 (1st Dept. 2004) (Defendants met their burden of establishing prima facie entitlement to summary judgment when they acknowledged injuries in MRI studies, but dismissed the same in the absence of objective evidence of injury); Chatah v. Iglesias , 5 AD3d 160 (1st Dept. 2004). To meet their burden, the medical affirmations submitted by defendants must not be conclusory and must be based on objective testing. Nix v. Xiang , 19 AD3d 227 (1st Dept. 2005); Webb v. Johnson , 13 AD3d 54 (1st Dept. 2004); Vaughan v. Baez, 305 AD2d 101 (1st Dept. 2003); Shinn v. Catanzaro , 1 AD3d 195 (1st Dept. 2003).
With regard to medical range of motion testing, the First Department seems to be split with regard to what a defendant must tender in order to establish prima facie entitlement to summary judgment. In Watt v. Francis, 16 AD3d (1st Dept. 2005), the Court held that defendant can establish prima facie entitlement to summary judgement on the issue of serious injury when the medical evidence submitted described the plaintiff as having full range of motion, without ever disclosing which tests were performed and without comparing the results thereof to normal. However, in Bray v. Rosas , 29 AD3d 422 (1st Dept. 2006), the Court relying on Second Department precedent held that the failure of a defendant's doctor to quantify plaintiff's range of motion while concomitantly failing to compare the same to what is deemed normal constituted a failure to establish prima facie entitlement to summary judgment "thereby leaving the court to speculate as to the meaning of those figures." Id. at 423, citing, Manceri v. Bowe , 19 AD3d 462, 463 (2nd Dept. 2005). In Webb v. Johnson , 13 AD3d 54 (1st Dept. 2004), the court held that defendant's medical doctor is required to specify the degree of plaintiff's range of motion and what constitutes normal range of motion. Webb v. Johnson , 13 AD3d 54 (1st Dept. 2004). Thus, it appears that the First Department sides with the Second, requiring that a defendant's doctor quantify plaintiff's restricted range of motion and compare the same to normal. Kelly v. Rehfeld , 26 AD3d 469 (2nd Dept. 2006).
Depending on which Appellate Division's law applies, the failure of a defendant's doctor to mention and discuss a plaintiff's prior MRI studies may be tantamount to failing to establish prima facie entitlement to summary judgment. In the First Department, the law is not clearly defined. In Offman v. Singh , 27 AD3d 284 (1st Dept. 2006), Nix v. Xiang ,19 AD3d 227 (1st Dept. 2005) and Webb v. Johnson , 13 AD3d 54 (1st Dept. 2004), the court held that if plaintiff had MRI or other imaging studies performed, defendant's doctor, in order to establish prima facie entitlement to summary judgment, was required to review and address the same. This Court holds that based on the cases just discussed, the law in the First Department, is that the failure to address a plaintiff's MRI studies by itself, does not constitute a defect, if there is other objective evidence indicating an absence of injury. In Nix, the court concluded that defendant had failed to establish prima facie entitlement to summary judgment when defendant's doctor failed to consider and address the objective findings in MRI and CT studies and failed to list what objective tests he relied upon to reach his conclusion. Nix v. Xiang , 19 AD3d 227 (1st Dept. 2005). Similarly, in Webb, defendant was denied summary judgment when his doctor failed to address the objective findings in the MRI reports and failed to specify what plaintiff's range of motion was and what were considered normal ranges. Webb v. Johnson , 13 AD3d 54 (1st Dept. 2004). This view is in accord with the Second Department's case law, wherein it is well settled that a defendant's failure to mention MRI studies indicating disc injury, even if he reviewed the same, is not fatal to his burden, if defendant's medical evidence demonstrates the absence of a serious injury, such as full range of motion. Kearse v. New York City Transit Authority, 16 AD3d 45 (2nd Dept. 2005); Meely v. 4 G's Truck Renting Co., Inc. , 16 AD3d 26 (2nd Dept. 2005). Additionally, provided such imaging studies exist, do in fact indicate Injury, and are acknowledged by defendant's doctor, defendant will nevertheless meet his burden if his medical doctor opines that no clinical correlation can be found for the injuries evidenced by said studies. Bent v. Jackson , 15 AD3d 46 (1st Dept. 2004); Brown v. Achy , 9 AD3d 30 (1st Dept. 2004); Chatah v. Iglesias , 5 AD3d 160 (1st Dept. 2004).
Defendant's medical evidence must be in admissible form, namely sworn or in affidavit form when it comes from defendant's own doctors. Shinn v. Catanzaro , 1 AD3d 195 (1st Dept. 2003); Rodriguez v. Goldstein, 182 AD2d 396 (1st Dept. 1992); Pagano v. Kingsbury, 182 AD2d 268 (2nd Dept. 1992). However, defendant can establish the lack of serious injury by using plaintiff's own unsworn medical records, and otherwise inadmissible medical reports from plaintiff's own doctors. Newton v. Drayton, 305 AD2d 303 (1st Dept. 2003); Pagano v. Kingsbury, 182 AD2d 268 (2nd Dept. 1992). Defendants can also use plaintiff's own sworn testimony to establish the absence of a serious injury. Arjona v. Calcano , 7 AD3d 279 (1st Dept. 2004); Nelson v. Distant, 308 AD2d 338 (1st Dept. 2003) (Defendant relied on plaintiff's bill of particulars to establish the absence of a serious injury).Plaintiff's medical evidence, however, when proffered to establish the existence of a serious injury, must always be in admissible form . Grasso v. Angerami, 79 NY2d 813 (1991); Shinn v. Catanzaro , 1 AD3d 195 (1st Dept. 2003); Charlton v. Almaraz, 278 AD2d 145 (1st Dept. 2000); Lowe v. Bennett, 122 AD2d 728 (1st Dept. 1986), Aff'g, 69 NY2d 700 (1986); Zoldas v. Louise Cab Corporation, 108 AD2d 378 (1st Dept. 1985); Mobley v. Riportella, 241 AD2d 443 (2nd Dept. 1997); Hagan v. Thompson, 234 AD2d 420 (2nd Dept. 1996). Unlike defendants who can rely on plaintiff's own unsworn medical records and reports, plaintiff's medical evidence must be presented by way of sworn affirmations or affidavits. Any submissions from a chiropractor must be in the form of a sworn and duly notified affidavit because a chiropractor is not a medical doctor who can affirm pursuant to CPLR § 2106. Shinn v. Catanzaro ,1 AD3d 195 (1st Dept. 2003); Gill v. O.N.S. Trucking, 239 AD2d 463 (2nd Dept. 1997). It is well settled, that a plaintiff can only rely on unsworn MRI reports if the defendant relies on them in their moving papers. Bent v. Jackson , 15 AD3d 46 (1st Dept. 2005); Toledo v. A.P.O.W. Auto Repair/Towing, 307 AD2d 233 (1st Dept. 2003); Ayzen v. Melendez, 299 AD2d 381 (2nd Dept. 2002); Perry v. Pagano, 267 AD2d 290 (2nd Dept. 1999); Raso v. Statewide Auto Auction, Inc., 262 AD2d 387 (2nd Dept. 1999); Pietrocola v. Battibulli, 238 AD2d 864 (3rd Dept. 1997). In the Second Department, when a defendant's doctor refers to plaintiff's MRI reports within his affirmation, a plaintiff is entitled to use said reports even in inadmissible form. Zarate v. McDonald , 31 AD3d 632 (2nd Dept. 2006). The First Department however, requires more than the mere mention or reliance upon a report by a defendant's doctor. Hernandez v. Almanzar , 32 AD3d 360 (1st Dept. 2006). In order for a plaintiff to rely upon unsworn MRI reports, the First Department requires that defendant rely and submit an unsworn copy of the same in support of its motion. Id.
Under certain circumstances, in keeping with the well settled doctrine, that the opponent of a summary judgment motion may use inadmissible evidence to oppose such a motion, plaintiff can use unsworn medical reports or otherwise inadmissible evidence, provided he establishes a reasonable excuse for failing to tender the evidence in admissible form. Grasso v. Angerami, 79 NY2d 813 (1991); Pagano v. Kingsbury, 182 AD2d 268 (2nd Dept. 1992); Parmisani v. Grasso, 218 AD2d 870 (3rd Dept. 1995). Although not mentioned in the just cited cases, the proponent of such inadmissible evidence must also establish that said evidence is likely to be admissible at trial. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972); Hughes v. Poulin, 144 AD2d 846 (3rd Dept. 1988).
Once defendant meets the burden of prima facie entitlement to summary judgment, by establishing that plaintiff has not suffered a serious injury, summary judgment is warranted unless plaintiff can establish the existence of a serious injury. Plaintiff must of course establish that the injuries alleged were the result of the accident claimed and that the limitations alleged are the result of those injuries. Noble v. Ackerman, 252 AD2d 392 (1st Dept. 1998). Plaintiff's proof establishing serious injury, medical or otherwise, must not only be admissible, but it must also be objective. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002); Zoldas v. Louise Cab Corporation, 108 AD2d 378 (1st Dept. 1985); Andrews v. Slimbaugh, 238 AD2d 866 (2nd Dept. 1997).
Medical evidence of an injury is required to establish a serious injury. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002). Generally, the medical proof required should be contemporaneous with the accident, showing qualitative evidence of what restrictions, if any, plaintiff was afflicted with. Blackmon v. Dinstuhl , 27 AD3d 241 (1st Dept. 2006); Thomson v. Abassi, 15 AD3d 95 (1st Dept. 2005) (Court held that the failure of plaintiff's doctor to provide objective proof of injury contemporaneous with the accident was fatal and was not cured by same doctor's finding of injury, with objective evidence, two and one half years later.); Nemchyonok v. Ying , 2 AD3d 421 (2nd Dept. 2003); Pajda v. Pedone, 303 AD2d 729 (2nd Dept. 2003); Jimenez v. Kambli, 272 AD2d 581 (2nd Dept. 2000). In fact, a failure to submit medical evidence contemporaneous with the injury requires summary judgment in defendant's favor. Toulson v. Young Han Pae , 13 AD3d 317 (1st Dept. 2004) (Court dismissed plaintiff's action and granted defendants summary judgment, when the medical evidence submitted was not contemporaneous with the accident. Plaintiff's first objective medical evidence of serious injury was an examination six months after the accident. The court held that this was not contemporaneous evidence of injury). In Perez v. Rodriguez , 25 AD3d 506 (1st Dept 2006), the court granted defendant summary judgment after finding that plaintiff failed to present objective medical evidence contemporaneous with the accident. The court held that even though plaintiff presented evidence of injury, said evidence, a medical examination performed years after the accident, was insufficient to establish a serious injury, where the doctor had not previously examined the plaintiff and relied on unsworn medical reports of evidencing prior treatment. Id.
Subjective proof such as complaints of pain, or limitations, without more, are insufficient to defeat summary judgment and do not establish the existence of a serious injury. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002); Scheer v. Koubeck, 70 NY2d 678 (1987); Noble v. Ackerman, 252 AD2d 392 (1st Dept. 1998); Eisen v. Walter Samuels, Inc., 215 AD2d 149 (1st Dept. 1995)). When plaintiff relies on subjective complaints of pain to establish a serious injury, he must do more than merely recount how much pain he feels. Noble v. Ackerman, 252 AD2d 392 (1st Dept. 1998). Plaintiff must specify how the pain limits the use of the body part, function, or organ or how the pain limits his routine daily activities. Id. In order to prove the degree, severity or extent of a physical limitation, plaintiff must submit medical proof of his limitations. Id. Said proof must describe the tests performed, what plaintiff's range of motion was when tested, and what constitutes normal range of motion. Milazzo v. Gesner , 33 AD3d 317 (1st Dept. 2006); Taylor v. Terrigno , 27 AD3d 316 (1st Dept. 2006); Velasquez v. Reluzo, 28 AD3d 365 (1st Dept. 2006). Plaintiff can also submit medical evidence indicating the numeric percentage of plaintiff's loss of range of motion. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002). Limitations can also be proven by submitting medical evidence of a medical qualitative assessment of plaintiff's condition, provided that the assessment "has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system." Id. at 350. A doctor's conclusory allegations based solely on subjective findings cannot establish a prima facie case of serious injury. Lowe v. Bennett, 122 AD2d 728 (1st Dept. 1986); Mobley v. Riportella, 241 AD2d 443 (2nd Dept. 1997); Hewan v. Callozzo, 223 AD2d 425 (1st Dept. 1996). A medical expert's opinion establishing a serious and permanent injury which is based solely on plaintiff's subjective complaints will not be credited and will not preclude summary judgment in favor of defendant. Zoldas v. Louise Cab Corporation, 108 AD2d 378 (1985). Whether an injury is permanent is usually a medical question requiring expert testimony. Dufel v. Green, 84 NY2d 796 (1995). The permanency of injury is not established merely because an expert repeatedly uses the word "permanent" in an affidavit. Lopez v. Senatore, 65 NY2d 1017 (1985). An objective basis for the medical conclusion of the permanency is required. Conclusory allegations as to permanency in a doctor's affidavit are insufficient as a matter of law to establish serious injury. Id. Thus, in order to be sufficient to establish a prima facie case of serious physical injury the medical affirmation or affidavit proffered 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. To raise an issue of fact as to the existence of a serious injury, the medical evidence presented must include a recent examination of the plaintiff. Bent v. Jackson, 15 AD2d 46 788 (1st Dept. 2005); Thomson v. Abassi, 15 AD3d 95 (1st Dept. 2005); Grossman v. Wright, 268 AD2d 79 (2nd Dept. 2000). The Second Department holds that medical reports where the doctor relies on inadmissible medical evidence, specifically medical evidence not provided to the court in admissible form, to conclude the existence of a serious injury are insufficient for purposes of establishing the existence of a serious injury. Vishnevsky v. Glassberg , 29 AD3d 680 (2nd Dept. 2006); Khan v. Finchler , 33 AD3d 966 (2nd Dept. 2006); Puerto v. Omholt , 17 AD3d 650 (2nd Dept. 2005); Magarin v. Kropf , 24 AD3d 733 (2nd Dept. 2005); Harney v. Tombstone Pizza Corp., 279 (2nd Dept. 2001); Friedman v. U-Haul Truck Rental, 216 AD2d 266 (2nd Dept. 1995); Williams v. Hughes, 256 A.D2d 461 (2nd Dept. 1998). This is because just like plaintiff, who cannot rely on unsworn medical evidence to establish a serious injury, neither can his doctors. Friedman v. U-Haul Truck Rental, 216 AD2d 266 (2nd Dept. 1995). In Friedman, the Court held that plaintiff's examining doctor could not rely on unsworn MRI reports to establish the existence of a serious injury. Id. In Puerto, the Court held that plaintiff's chiropractor could not rely on unsworn medical records and reports in arriving at a diagnosis and conclusion. Puerto v. Omholt , 17 AD3d 650 (2nd Dept. 2005).
The First Department has come to the same conclusion. Uddin v. Cooper ,32 AD3d 270 (1st Dept. 2006) (Court held that reports relied upon by plaintiff's medical doctors were heresay, inadmissible and not probative on the issues therein.). However there is an exception. Navedo v. Jaime ,32 AD3d 788 (1st Dept. 2006). In that case the court held that plaintiff's medical expert could rely upon unsworn MRI reports as the same were properly before the court for review since the relying physician submitted his report in proper form. Id. This Court however, finds that reasoning unsound and flawed inasmuch as the court in Navedo, relied upon footnote 5 in Pommells v. Perez , 4 NY3d 566 (2005) and the case relied upon by the court in Pommells for it's conclusion was Grasso v. Angerami, 79 NY2d 813 (1991). In Pommells, the court in a footnote stated that doctors whose reports were sworn could rely upon unsworn MRI reports in reaching their conclusions and that by virtue of the sworn reports the unsworn MRI reports were properly before the Court. Pommells v. Perez , 4 NY3d 566 (2005). In support of its holding the Court cited Grasso v. Angerami, 79 NY2d 813 (1991), a case having nothing to do with the proposition it was cited for in Pommells. In Grasso, the court merely held that plaintiff's unsworn report would not be considered inasmuch as plaintiff had failed to tender an excuse for his failure to tender said report in admissible form. Grasso v. Angerami, 79 NY2d 813 (1991). The court then declined to reach the question of whether said report, in inadmissable form was sufficient to establish a serious injury. Id. Nevertheless, the Court is bound by First Department precedent no matter how unsound. So to the extent that Navedo allows a doctor to rely upon unsworn MRI reports, this Court will allow the same and limit the holding to MRI reports only.
A diagnosis of a herniated disc, without more, is not evidence of a serious injury. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002); Noble v. Ackerman, 252 AD2d 392 (1st Dept. 1998). If plaintiff claims to have suffered a herniated disc, he must, in addition to submitting medical proof of the injury, submit objective evidence as to the duration, extent or degree of the alleged physical limitations attributed to the disc injury. Arjona v. Calcano , 7 AD3d 279 (1st Dept. 2004). Mild sprains to the lumbar and cervical spine are insignificant and as a matter of law, do not constitute a serious injury. Lebron v. Camacho, 251 AD2d 295 (2nd Dept. 1998); Rhind v. Naylor, 187 AD2d 498 (2nd Dept. 1992). It is well settled that surgery, by itself is not evidence of serious injury. Fortune v. Sacks and Sacks, 272 AD2d 277 (1st Dept. 200); Paradis v. Burlarley , 3 AD3d 718 (3rd Dept. 2004); Lindquist v. Knowledge Systems Research, Inc., 295 AD2d 889 (4th Dept. 2002). However, with regard, to meniscus tears, it is well settled that evidence of a meniscus tear requiring surgery raises an issue of fact as to the existence of a serious injury. Noriega v. Sauerhaft , 5 AD3d 121 (1st Dept. 2004); Rangel-Vargas v. Vurchio, 289 AD2d 92 (1st Dept. 2001); Pollas v. Jackson , 2 AD3d 700 (2nd Dept. 2003). Moreover, while there are no cases squarely addressing the issue of whether MRI films indicating tears of the meniscus, by themselves, are sufficient to establish the existence of a serious injury, this Court concludes that said evidence alone is sufficient to establish the existence of a serious injury. In Medley v. Lopez , 7 AD3d 470 (1st Dept. 2004), the court concluded that plaintiff failed to submit proof of serious injury when her claim of a meniscus tear was unsupported by the contents of plaintiff's MRI films. As such, this case stands for the proposition, that plaintiff would have established a serious injury, if the MRI films indicated a meniscus tear as alleged. In Vignola v. Varrichio, 243 AD2d 464 (2nd Dept. 1997), the court granted defendant's motion for summary judgment finding no serious injury when plaintiff's doctor, in opposition, failed to cite to any MRI films confirming a meniscus tear. Thus, this case also stands for the proposition that MRI films indicating tears of the meniscus are indeed evidence of a serious injury.
An MRI or a CT study is objective medical evidence of a disc injury. Id.; Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002). Straight leg raising tests performed by a doctor are also objective evidence of a disc injury. Brown v. Achy , 9 AD3d 30 (1st Dept. 2004). Medical observations of spasm, provided that the spasms are objectively ascertained, are objective evidence of serious injury. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002). Reliance on unsworn MRI reports is not detrimental to a plaintiff's case in establishing serious injury when the doctor whose affirmation is submitted establishes serious injury independent of said reports. Toledo v. A.P.O.W. Auto Repair/Towing, 307 AD2d 233 (1st Dept. 2003); Rice v. Moses, 300 AD2d 213 (1st Dept. 213). In such cases, reliance on unsworn MRI reports by the affirming doctor does not alone warrant granting of defendant's motion. Id.
When a plaintiff claims that he has suffered a serious injury because he has sustained a "permanent loss of use of a body organ, member, function or system," plaintiff has to establish that the injury sustained has caused a "total loss of use," of the affected body part to establish a serious injury under that category of the insurance law. Oberly v. Bangs Ambulance, Inc., 96 NY2d 295 (2001). A plaintiff who claims that he has suffered a serious injury because he has sustained a "permanent consequential limitation of use of a body organ or member," must establish that the limitation is significant rather than slight. Gaddy v. Eyler, 79 NY2d 955 (1992).
When a plaintiff claims that he has suffered a serious injury because he has sustained a "significant limitation of use of a body function or system," plaintiff must demonstrate that the injury alleged, has limited the use of the afflicted area in a significant way rather than a mild one. Licari v. Elliot, 57 NY2d 230 (1982). As a matter of law, mild, slight, or minor limitations are insufficient to constitute a serious injury under this section of the insurance law. Id. The word "significant," means that the injury is important and relates to medical significance. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002). The medical significance of an injury, "involves a comparative determination of the degree or qualitative nature of an injury based on normal function, purpose and use of the body part." Id. at 353. When a plaintiff claims that he has suffered a serious injury because he has sustained "a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment," he has to demonstrate, besides the medically determined injury, that he was indeed prevented from performing activities for at least 90 days and that the curtailment was to a great degree rather than slight. Licari v. Elliot, 57 NY2d 230 (1982). Subjective complaints of occasional transitory headaches and dizziness do not qualify as a serious injury. Id. Further, a claim pursuant to this section of the Insurance Law must be supported by objective medical evidence, detailing the injury and the limitations caused by such injury. Beaubrum v. New York City Transit Authority, 9 AD3d 258 (1st Dept. 2004); Kaplan v. Vanderhans , 26 AD3d 468 (2nd Dept. 2006). In order to establish prima facie entitlement to summary judgment under this category of the serious injury statute, defendant must provide medical evidence with regard to an absence of injury during the relevant time period, meaning the first 180 days, subsequent to the accident. Sayers v. Hot , 23 AD3d 453 (2nd Dept. 2005); Buford v. Fabrizio, 8 AD3d 784 (3rd Dept. 2004). As such, medical evidence of examinations conducted years after the accident are not probative with regard to this category of serious injury and do not entitle a defendant to summary judgment with regard to the same. Toussaint v. Claudio , 23 AD3d 268 (1st Dept. 2005); Pijuan v. Brito, 35 AD3d (2nd Dept. 2006); Webb v. Johnson , 13 AD3d 54 (1st Dept. 2004); Loesburg v. Jovanovic, 264 AD2d 301 (1st Dept. 1999); Buford v. Fabrizio, 8 AD3d 784 (3rd Dept. 2004); Scott v. Roudellou, 291 AD2d 550 (2nd Dept. 2002). Alternatively, a defendant can establish prima facie entitlement to summary judgment with regard to 90/180 category absent medical evidence, by citing to evidence, such as plaintiff's own testimony, demonstrating that he was not prevented from performing all of the substantial activities constituting plaintiff's customary daily activities for the prescribed period. Copeland v. Kasalica , 6 AD3d 253 (1st Dept. 2004) (Court found that home and bed confinement for less than the prescribed period evinces lack of serious injury under the 90/180 category); Robinson v. Polasky , 32 AD3d 1215 (4th Dept. 2006) (Court found that plaintiff's failure to miss full days of work evinces lack of serious injury under the 90/180 category); Burns v. McCabe , 17 AD3d 1111 (4th Dept. 2005); Parkhill v. Cleary, 305 AD2d 1088 (4th Dept. 2003). Once defendant meets his burden, plaintiff must come forward with competent medical evidence demonstrating his inability to perform substantially all of his daily activities for not less than 90 of the first 180 days as a result of the accident alleged. Ponce v. Magliulo , 10 AD3d 644 (2nd Dept. 2004). The mere inability to work for the prescribed time period, absent evidence that other activities were curtailed, do not establish that a plaintiff's activities were curtailed to the requisite degree or for the required duration. Uddin v. Cooper , 32 AD3d 270 (1st Dept. 2006).
An unexplained gap in treatment which renders any conclusion as to causation speculative, warrants summary judgment in defendant's favor. Pommells v. Perez , 4 AD3d 101 (1st Dept. 2004), affirmed by, Pommells v. Perez , 4 NY3d 566 (2005); Shinn v. Cantanzaro, 1 AD3d 195 (1st Dept. 2003); Vaughan v. Baez, 305 AD2d 101 (1st Dept. 2003); Arrowwood v. Lowinger, 294 AD2d 315 (1st Dept. 2002); Bandoain v. Bernstein, 254 AD2d 2005 (1st dept. 1998); Barclay v. Rad Cab Corp., 9 Misc 3d 137 (Appellate Term First Dept. 2005). In both Shinn and Pommells, the medical evidence substantiating the injury came after a gap in treatment. In those cases medical treatment prior to the gap either yielded no injury or there was no treatment prior to the gap. Stated differently, if the only medical evidence submitted is an examination occurring some substantial time after the accident claimed, any opinion linking the findings of said examination to the accident claimed is speculative and fails to raise an issue of fact as to serious injury.
Similarly, an unexplained gap in treatment between treatment received shortly after the accident and treatment received long thereafter, warrants dismissal of plaintiff's case. Pommells v. Perez , 4 NY3d 566 (2005). While the First Department previously held that gaps in treatment, whether explained or unexplained, were not a basis for granting a defendant summary judgment and instead, were issues, bearing on weight rather than admissibility, and for the jury to decide, See, Brown v. Achy , 9 AD3d 30 (1st Dept. 2004); Ramos v. Dekhtyar, 301 AD2d 428 (1st Dept. 2003); Akamnou v. Rodriguez, 12 AD3d 187 (1st Dept. 2004); Rosario v. Universal Truck Trailer Service, Inc. , 7 AD3d 306 (1st Dept. 2004); Cruz v. Castanos , 10 AD3d 277 (1st Dept. 2004), the Court of Appeals has now firmly established that the issue is one for resolution as a matter of law. Pommells v. Perez , 4 NY3d 566 (2005); Brown v. City of New York , 29 AD3d 447 (1st Dept. 2006); Vasquez v. Reluzco , 28 AD3d 365 (1st Dept. 2006); Taylor v. Terrigo, 27 AD3d 316 (1st Dept. 2006); Rivera v. Benaroti , 29 AD3d 340 (1st Dept. 2006); Milazzo v. Gesner , 33 AD3d 317 (1st Dept. 2006). In Pommells, the Court held that while, for purposes of summary judgment, cessation, or a gap in treatment, if explained, was not dispositive; to avoid summary judgment, a plaintiff is now required to offer a reasonable explanation for the gap in treatment. Id. Since Pommells, the First Department has applied the holding in Pommells, holding that an unexplained gap in treatment is fatal to a plaintiff's claim of serious injury. Colon v. Kempner , 20 AD3d 372 (1st Dept. 2005). While not specifically addressed in Pommells, based on the cases that follow that decision, it is clear that, to raise an issue of fact, explanations for gaps in treatments must be proffered by doctors within medical reports or affidavits. Farozes v. Kamran, 2005 WL 2438929 (2nd Dept. 2005); Ali v. Vasquez, 797 AD3d 520 (2nd Dept. 2005); Hernandez v. Taub , 19 AD3d 368 (2nd Dept. 2005). Alternatively, when the explanation for the gap in treatment is proffered by plaintiff, because its non medical in nature, it must be supported by corroborative proof. Paul v. Allstar Rentals, Inc. , 22 AD3d 476 (2nd Dept. 2005) (Lifson, J., dissenting); Gomez v. Ford Motor Credit Company , 10 Misc 3d 900 (Supreme Court, Bronx County 2005); Saha v. Sanders, 10 Misc 3d 1072 (A) (Supreme Court, Kings County 2005); Pinales v. SCS Holdings, Inc., 2002 WL 31355602 (Supreme Court, Nassau County 2002). An affidavit from the plaintiff stating that a gap in treatment was attributable to the cessation of no fault benefits has been deemed sufficient to explain a non-medical gap in treatment. Jules v. Barbecho, 2008 NY Slip Op. 07622 (2nd Dept. 2008); Francovig v. Senekis Cab Corp. , 41 AD3d 643 (2nd Dept. 2007); Black v. Robinson, 305 AD2d 438 (2nd Dept. 2003). A gap in treatment is not relevant to nor dispositive in an action concerning serious injury under the 90/180 category. Gomez v. Ford Motor Credit Co. , 10 Misc 3d 900 (Supreme Court, Bronx County 2005) (Court held that insofar as a gap treatment is evidence that an injury has resolved itself, the same is not probative on the 90/180 category which by its terms describes a temporary injury for which medical treatment will cease. Conflicting explanations with regard to gaps in treatment are tantamount to no explanation at all. Gonzalez v. A.V. Managing, Inc. , 37 AD3d 175 (1st Dept. 2007) (Court rejected plaintiff's explanation for a gap in treatment when plaintiff gave several conflicting reasons for the gap and his doctors gave reasons at odds with the same.). Such explanations shall be rejected as a matter of law. Id.
A plaintiff's failure to rebut a defendant's prima facie showing that the injuries sustained by plaintiff pre-dated the accident or caused by some other event or condition warrants dismissal of the action. Pommells v. Perez , 4 NY3d 566 (2005); Franchini v. Plameri, 1 NY3d 536 (2003); Mullings v. Huntwork ,26 AD3d 214 (1st Dept. 2006). In Kaplan v. Vanderhans , 26 AD3d 468 (2nd Dept 2006), plaintiff's failure to submit evidence to rebut defendant's contention that plaintiff's injuries were preexisting were fatal, since it rendered any conclusion as to causation speculative. In Bennett v. Genas, 2006 WL 711188 (2nd Dept. 2006), plaintiff's failure to submit evidence to rebut defendant's contention that plaintiff was involved in prior accidents wherein he sustained injuries similar to those claimed, was fatal, since it rendered any conclusion as to causation speculative.
Assuming the Court has competent, admissible, but conflicting medical evidence and or affidavits on the issue of serious injury, summary judgment is usually not warranted. Cassagnol v. Williamsburg Plaza Taxi, 234 AD2d 208 (1st Dept. 1996). Conflicting medical evidence on the issue of the permanency and significance of a plaintiff's injuries warrant denial of summary judgment. Noble v. Ackerman, 252 AD2d 392 (1st Dept. 1998).
It is well settled that with regard to fractures, the statute promulgates that the same constitutes a serious injury. Thus, evidence of fracture, by itself, is sufficient to support a finding of serious injury. Travelers Insurance Company v. Job, 239 AD2d 289 (1st Dept. 1997); Lanpont v. Savva Cab Corp., Inc., 244 AD2d 208 (1st Dept. 1997).
Discussion
Defendant's motion seeking summary judgment is hereby granted. Given the allegations made by plaintiffs within their bill of particulars and upon a review of the evidence submitted, the only categories of serious injury applicable to the instant action are a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; and a medically determined injury or impairment which prevented plaintiffs from performing substantially all of the material acts which constituted their usual and customary activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
With regard to the category of serious injury resulting in a significant and permanent injury, the first two mentioned above, despite plaintiffs' contention to the contrary, the evidence submitted by defendant establishes prima facie entitlement to summary judgment. With regard to all plaintiffs, Montalbano's sworn reports establish that all the injuries asserted by the plaintiffs were degenerative in nature, pre-existed the accident herein, and were not the result of trauma. Montalbano, examined the plaintiffs, and more importantly reviewed their medical records, some of which were which evinced treatment contemporaneous to the accident alleged. Based on his examination and his review of records, Montalbano concludes that the injuries herein were not related to the accident herein. Thus, defendant establishes prima facie entitlement to summary judgment.With regard to plaintiffs' injuries under the 90/180 category, the non-permanent injury category of serious injury, defendant establishes prima facie entitlement to summary judgment. It is well settled that examinations conducted years after the accident are not probative with regard to the 90/180 category of serious injury and do not entitle a defendant to summary judgment with regard to the same. Toussaint v. Claudio , 23 AD3d 268 (1st Dept. 2005); Pijuan v. Brito, 35 AD3d (2nd Dept. 2006); Webb v. Johnson , 13 AD3d 54 (1st Dept. 2004); Loesburg v. Jovanovic, 264 AD2d 301 (1st Dept. 1999); Buford v. Fabrizio, 8 AD3d 784 (3rd Dept. 2004); Scott v. Roudellou, 291 AD2d 550 (2nd Dept. 2002). However, it is equally well settled that a defendant can establish prima facie entitlement to summary judgment with regard to 90/180 category absent medical evidence, by citing to evidence, such as plaintiff's own testimony, demonstrating that he was not prevented from performing all of the substantial activities constituting plaintiff's customary daily activities for the prescribed period. Copeland v. Kasalica , 6 AD3d 253 (1st Dept. 2004); Robinson v. Polasky , 32 AD3d 1215 (4th Dept. 2006); Burns v. McCabe , 17 AD3d 1111 (4th Dept. 2005); Parkhill v. Cleary, 305 AD2d 1088 (4th Dept. 2003). Once defendant meets his burden, plaintiff must come forward with competent medical evidence demonstrating his inability to perform substantially all of his daily activities for not less than 90 of the first 180 days as a result of the accident alleged. Ponce v. Magliulo , 10 AD3d 644 (2nd Dept. 2004). In this case, defendant establishes prima facie entitlement to this category of injury for several reasons. First, insofar as causation is germane to any serious injury claim, permanent or non-permanent, defendant establishes prima facie entitlement to summary judgment on the 90/180 category for the very same reason just discussed with regard to the permanent category of injury, namely, that Montalbano establishes that none of the injures sustained were caused by the accident herein. Second, with Montalbano's sworn reports, defendant negates the existence of a serious injury contemporaneous with the accident herein. Montalbano reviewed plaintiffs medical records, in particular Cabatu's examination of the plaintiffs a day after the accident herein. Said examination yielded a diagnosis of sprains and strains for all plaintiffs. It is well settled that strains/sprains, are not serious as a matter of law. Lebron v. Camacho, 251 AD2d 295 (2nd Dept. 1998); Rhind v. Naylor, 187 AD2d 498 (2nd Dept. 1992). Thus, insofar as the injuries diagnosed are not serious as a matter of law, defendant establishes the absence of a medically determined injury and thus establishes prima facie entitlement to summary judgment with regard to the 90/180 category of serious injury.
With regard to the permanent and 90/180 categories of serious injury, plaintiffs' evidence fails to raise an issue of fact sufficient to preclude summary judgment insofar as they fail to submit contemporaneous medical evidence of a serious injury. It is well settled that in order to establish a serious injury, plaintiff must tender medical evidence contemporaneous with the accident alleged. Blackmon v. Dinstuhl , 27 AD3d 241 (1st Dept. 2006); Thomson v. Abassi, 15 AD3d 95 (1st Dept. 2005); Nemchyonok v. Ying , 2 AD3d 421 (2nd Dept. 2003); Pajda v. Pedone, 303 AD2d 729 (2nd Dept. 2003); Jimenez v. Kambli, 272 AD2d 581 (2nd Dept. 2000); Toulson v. Young Han Pae , 13 AD3d 317 (1st Dept. 2004); Perez v. Rodriguez , 25 AD3d 506 (1st Dept 2006). Said evidence must be objective and must include a qualitative assessment of what restrictions, if any, plaintiff was afflicted with. Id. In this case, the only medical evidence tendered is Cabatu's affirmations. Said affirmations do in fact discuss treatment rendered to plaintiffs a day after the accident herein but they nevertheless fail to establish the existence of a serious injury at that time insofar as said affirmations are devoid of objective medical evidence of injury nor any qualitative assessment of plaintiffs' limitations. Cabatu simply asserts that he examined plaintiffs on August 4, 2006 and after employing tests which he fails to particularize, he concludes that plaintiffs are afflicted with significant limitations. This evidence is insufficient and thus fails to establish contemporaneous medical treatment of the kind required by law. For this reason alone, defendant's motion is granted.
Notwithstanding the foregoing, plaintiffs fail to avert summary judgment insofar as they fail to rebut defendant's medical evidence establishing that the injuries sustained by plaintiffs were not related to the accident herein. A plaintiff's failure to rebut a defendant's prima facie showing that the injuries sustained by plaintiff pre-dated the accident or caused by some other event or condition warrants dismissal of the action. Pommells v. Perez, 4 NY3d 566 (2005); Franchini v. Plameri, 1 NY3d 536 (2003); Mullings v. Huntwork , 26 AD3d 214 (1st Dept. 2006). In this case, Cabatu's affirmations, the only medical evidence submitted by plaintiffs, fail to rebut Montalbano's contention that the injuries herein pre-date the accident herein, are degenerative in nature, and are unrelated to trauma. Thus, defendant is entitled to summary judgment for this additional reason. It is hereby
ORDERED that plaintiffs' complaint be hereby dismissed with prejudice. It is further
ORDERED that defendant serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.
This constitutes this Court's decision and Order.