Opinion
3206602
Decided May 9, 2005.
By Notice of Motion, plaintiff Amy Wolf ("Wolf") seeks to reargue and renew this Court's decision and order of June 25, 2004, as dismissed plaintiff's complaint on the grounds that no triable issue of fact had been raised regarding whether plaintiff sustained a "serious injury" as defined by Insurance Law 5102(d), and upon reargument and renewal, vacating said order and restoring this action to the trial calendar. Plaintiff does not seek reargument or renewal of that portion of this Court's Decision and Order as dismissed the complaint against defendant Frances J. Moss ("Moss") for failure to establish her liability in the happening of the accident. Rather, plaintiff seeks relief only from such portion of the June 25, 2004 Decision and Order as dismissed the complaint against defendant Emeterio Rodriguez ("Rodriguez") on "threshold" (Insurance Law 5102[d]) grounds.
Facts and Procedural Background
In this action for personal injury sustained in a motor vehicle action of January 6, 2002, plaintiff alleged that she sustained, inter alia, cervical and lumbar herniations and bulging disc, with related radicular pain as a result of the subject accident.
In dismissing the complaint on "threshold" grounds the court in its June 25, 2004 Decision and Order concluded that defendants had made a prima facie showing of entitlement to summary judgment, but that in opposition to the defendants' motions, plaintiff had failed to raise an issue of fact as to whether she sustained a "serious injury" (Insurance law § 5102[d]). The court stated:
. . . [P]laintiff has failed to produce evidentiary proof in admissible form sufficient to raise a triable issue of fact as to whether she sustained a "serious injury" ( see Duldulao v. City of New York, 284 AD2d 296, 297; Pierre v. Nanton, 279 AD2d 621). . . . [P]laintiff was required to submit proof of a medical finding that was contemporaneous with the accident showing either a range of motion restriction ( see Pajda v. Pedone, 303 AD2d 729), or . . . qualitative assessment of plaintiff's condition, which compares plaintiff's limitations to the normal function purpose and use of the affected body organ, member, function or system ( see Toure v. Avis Rent-A-Car Sys., Inc., 98 NY2d 345, 350). Although the February 6, 2002 CT scan of plaintiff's cervical spine reveals a herniated disc just one month after the accident, the mere existence of a bulging or herniated disc is insufficient to demonstrate a "serious injury" ( see Toure v. Avis Rent-A-Car Sys., Inc., 98 NY2d 345; Monette v. Keller, 281 AD2d 523; Flannagan v. Noeg, 212 AD2d 756). . . . [P]laintiff's failure to provide objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury . . . is fatal to the defense of the summary judgment motion ( Espinal v. Galicia, 290 AD2d 528, 528-529, citing Monette v. Keller, 281 AD2d 523, 523-524; see also, Suarez v. Abe, 4 AD3d 288; Chinnici v. Brown, 295 AD2d 465, 465-466; Davis v. New York City Transit Authority, 294 AD2d 531).
Plaintiff also does not proffer adequate proof of the current extent of her injuries ( see Toure v. Avis Rent-A-Car Sys., Inc., 98 NY2d 345, 353; Davis v. New York City Tr. Auth., 294 AD2d 531, 532; Grossman v. Wright, 268 AD2d 79). Dr. Alvarez' sworn report does not specify the extent or degree of the physical limitations . . . nor does it adequately set forth the names and descriptions of the tests, or procedures performed which led the doctor to conclude that plaintiff sustained "limited" and "decreased" range of motion in her spine ( see Minlionica v. Shahabi, 296 AD2d 569; Herman v. Church, 276 AD2d 471).
THE INSTANT MOTION
On the instant motion to reargue and renew plaintiff relies upon submissions made in opposition to the original motion, as well as upon additional medical evidence by which she seeks to address the deficiencies identified in the court's June 2004 Decision and Order.
In opposition to the original motion, plaintiff provided the affirmation of Dr. Gordon Heller, a radiologist affiliated with Beth Israel Medical Center, who affirms that he personally reviewed the February 6, 2002 CT scan of plaintiff's cervical spine, which revealed a herniated disc at the C5-6 level. Plaintiff also supplied a Certification of Medical Records, affirmed by plaintiff's treating physician, Dr. Stuart Press, who attests to the authenticity and completeness of the medical records which were maintained by his office in the ordinary course of his practice. Plaintiff, however, failed to include the referenced medical records in her submissions in opposition.
In opposition to the original motion, plaintiff also provided the affirmed report of Dr. Frank Alvarez, who performed a neurological evaluation of plaintiff on March 29, 2004. Dr. Alvarez reviewed, inter alia, reports of a February 26, 2004 MRI scans of plaintiff's cervical and lumbar spine, February 1 and 7, 2002 EMG/NCV studies, a February 11, 2002 report of a brain stem auditory evoked response test, and a February 15, 2002 MRI of plaintiff's lumbar spine. Dr. Frank Alvarez avers that plaintiff presented with various subjective complaints, including headaches, neck pain and lower back pain. Dr. Alvarez' found that plaintiff's "[c]ervical range of motion [was] limited with pain and guarding", "[t]horacic range of motion is decreased bilaterally producing lower back pain", and that her "[l]umbar range of motion [was] decreased, producing lower back pain bilaterally with flexion and lateral flexion and sacral in location with extension." Straight leg raising was negative. Dr. Alvarez noted tenderness in plaintiff's right temporomandibular joint, which revealed "remarkable crepitation and deviation of the jaw as she open[ed] it." "Cranial nerves, motor examination, deep tendon reflexes, [and] coordination [revealed] no focal neurologic deficits." Dr. Alvarez concluded that as a result of the accident, plaintiff sustained unresolved cervical and thoracic strain, "lumbar strain with right upper leg radicular like symptomatology," a herniated disc at C5-6, and a recent onset of temporomandibular joint symptomatology. Based upon his review of the medical records, he concludes that plaintiff's disc herniation began as a disc bulge after the accident and progressed over time, and that "degenerative changes" are now present.
Copies of these MRI, EMG/NCV and brain stem auditory evoke response test results are not submitted.
In support of reargument and renewal, plaintiff now submits: (1) the report of Dr. Milton Smith, who examined plaintiff approximately six weeks after the accident, (2) an affirmation by Dr. Geraldo Yanayaco who examined plaintiff on August 18, 2004, (3) an affidavit by Dr. C. Gilbert Tweed regarding his intention to perform surgery on plaintiff to fuse her cervical spine at C5-6, and (4) the affirmation of Dr. Gerardo Yanayaco attesting to Dr. Milton Smith's report as a business record of Omni Medical, with which Dr. Yanayaco is "associated".
In the report of his February 21, 2002 examination of plaintiff, Dr. Smith states that plaintiff is being treated by Dr. Press in connection with injuries sustained in the January 6, 2002 accident. Upon examination, Dr. Smith found no muscle spasm in the cervical or lumbar spine, and full-muscle strength in the upper and lower extremities. There was no motor or sensory deficits, and no peripheral vascular compromise. However, he notes the following restrictions in the cervical spine: flexion 35 (50 normal), extension 45 (60 normal), lateral flexion 30 bilaterally (45 normal) and rotation 65 bilaterally (80 normal). Findings in the lumbar spine were: flexion 60 (90 normal), extension 25 (25 normal).
Dr. Yanayaco avers that he examined plaintiff on August 18, 2004 and found the following restrictions in her cervical spine: extension 35 (0-45 normal); right and left lateral flexion 35 (0-45 normal); right and left rotation 35 (0-45 normal). The doctor also found tenderness and muscle spasm in the cervical spine.
Rodriguez, in opposition to the instant motion to reargue and renew, maintains that, as an initial consideration, plaintiff's motion to reargue is untimely (CPLR 2221[d]) in that the June 25, 2004 Decision and Order, with Notice of Entry, was served upon plaintiff's counsel on July 13, 2004 [Plaintiff's Exhibit D], and that the instant motion is dated August 23, 2004. Moreover, argues defendant, plaintiff's submissions do not raise grounds appropriate for either reargument (CPLR 2221[d]) or renewal (CPLR 2221[e]). In addition, defendant maintains, Dr. Yanayaco does not causally relate his findings to the subject accident and Dr. Smith's report is not in admissible form [CPLR2106]. Nor, argues defendant, does plaintiff properly assume that (by virtue of the affirmations/affidavits of Doctors Press and Yanayaco) that the foundation has been layed for consideration of the report of Dr. Smith as a business record. Finally, defendant urges that the affirmation of Dr. Tweed should be disregarded, as it sets forth no objective basis for the doctor's conclusion that plaintiff's need, if any, for surgery is causally related to the subject accident.
Reargument
CPLR 2221(d)(2) provides that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." Here, inasmuch as his motion is not based upon a matter of law or fact allegedly overlooked by the court, but rather upon new evidence, the motion is not properly one for reargument ( C.R. v. Pleasantville Cottage School, 302 AD2d 259, 260). As the motion is not properly one to reargue, the court need not consider defendant's objection on the grounds of timeliness (CPLR 2221[d][3]; 2103[b][2]; 2211).
Renewal
As is relevant here, CPLR 2221(e)(2) provides that a motion to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" ( see e.g., Orange Rockland Units. v. Assessor of Town of Haverstraw, 304 AD2d 668; J.D. Structures v. Waldbaum, 282 AD2d 434). However "the rule is flexible and the court has the discretion to grant renewal upon facts known to the movant at that time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion" ( Orange Rockland Utilities v. Assessor of Town of Haverstraw, 304 AD2d at 669; JD Structures v. Walbaum, 282 AD2d 434, 436; see also, UBAF Arab American Bank v. Sanchez 169 AD2d 623). Accordingly, plaintiff's request for renewal is granted ( see Lee v. Glicksman, 14 AD3d 669; see also, Cespedes v. McNamee, 308 AD2d 409).
The Court turns now to the adequacy of the plaintiff's submissions — both in opposition to the original motion and upon renewal — to defeat summary judgment dismissal of the complaint. It is first noted that records of a patient's treating physician constitute business records (see 8 N.Y.C.R.R. 29.2[a][3]) and, with the proper foundation, may be considered on a motion for summary judgment (CPLR 4518; Osowicki v. Young 140 AD2d 898). However, here, neither the affirmation of Dr. Gerardo Yanayaco (dated August 25, 2004), who has offices at 99 University Place, or the March 31, 2004 affirmation of Dr. Stuart Press, establishes that the February 21, 2002 report of Dr. Milton M. Smith, with offices at 189 Montague Street, constitutes a business record of Omni Medical Center, located at 2044 Ocean Avenue ( compare, Asare v. Ramirez, 5 AD3d 193; DeLeon v. Port Authority of New York and New Jersey, 306 AD2d 146).
Moreover, it is difficult to decipher from the documents following the affirmation of Dr. Stuart Press (submitted for the first time on the instant motion for renewal and reargument) the exact findings, examinations performed and diagnosis made during plaintiff's treatment at Omni Medical Center. Accordingly, it is
ORDERED, that renewal is granted, and upon renewal the Court adheres to its Decision and Order of June 25, 2004 (entered July 7, 2004); and it is further
ORDERED, that the Clerk of the Court enter judgment for defendants accordingly.