This action arises out of an automobile accident. It is alleged that at the time of the accident, the complainant man was the driver of a motor vehicle in which the complainant women were passengers; and that the complainants' vehicle was rear-ended by the defendants' vehicle.
Under the no-fault law, in order to maintain an action for personal injury, a complainant must establish that a serious injury has been sustained. 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. In the present action, the burden rests on the defendants to establish, by the submission of evidentiary proof in admissible form, that the complainant man has not suffered a serious injury. 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 complainant to produce legitimate evidence in admissible form to support the claim of serious injury.
In support of a claim that the Westchester complainant 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 the complainant's examining physician. Once the burden shifts, it is incumbent upon the complainant, in opposition to defendant's motion, to submit proof of serious injury in admissible form. Unsworn reports of the complainant's examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment. Thus, a medical affirmation or affidavit which is based on a physician's personal examination and observations of the complainant is an acceptable method to provide a doctor's opinion regarding the existence and extent of a complainant's serious injury. Unsworn MRI reports are not competent evidence unless both sides rely on those reports. However, in order to be sufficient to establish a legitimate 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 complainant's subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the Civil Practice Law and Rules to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice.
In any event, the findings, which must be submitted in a competent statement under oath (or affirmation, when permitted) must demonstrate that the complainant sustained at least one of the categories of serious injury as enumerated in Insurance Law.
A Bronx 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, the complainant's self-serving affidavit is insufficient to raise a triable issue of fact.
The defendants have submitted proof in admissible form in support of the motion for summary judgment, against the complainant driver for all categories of serious injury, except for the category of 90/180-days. The defendants submitted the affirmed reports from two independent examining physicians (an orthopedist and a neurologist).
The affirmed report of defendants' independent examining orthopedist indicates that an examination conducted revealed a diagnosis of status-post cervical, thoracic and lumbar sprain/strain and status-post right knee injury. He opines that claimant does not need any treatment or testing from an orthopedic perspective. The orthopedist concludes that the claimant has no disability or work restriction.
The affirmed report of defendants' independent examining neurologist indicates that an examination conducted revealed a diagnosis of normal neurological examination, no focal deficits, neurologically intact, resolved cervical, thoracic, and lumbar sprain/strain, claimant's knee complaints are deferred to the appropriate specialty. He opines that claimant does not need any treatment or testing from a neurological perspective. The neurologist further opines that there is no disability at the present time. Finally, the neurologist concludes that there are no restrictions of activities of daily living, including work, at the present time.
The defendants have failed to raise a triable issue of fact as to the 90/180-day claim. 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. The defendants' experts examined the complainant driver almost 4 years after the date of the complainant's alleged personal injury and accident. The defendants' experts failed to render an opinion on the effect the injuries claimed may have had on the complainant for the 180 day period immediately following the accident. The reports of the independent medical examiner (IME) relied upon by defendants fail to discuss this particular category of serious injury and further, the IME's took place well beyond the expiration of the 180-day period. With respect to the 90/180-day serious injury category, the defendants has failed to meet their initial burden of proof and, therefore, has not shifted the burden to the complainant to lay bare its evidence with respect to this claim. As the defendants have failed to establish a legitimate case with respect to the ninth category, it is unnecessary to consider whether the complainant driver’s papers in opposition to the defendants' motion on this issue were sufficient to raise a triable issue of fact. Accordingly, the defendants are not entitled to summary judgment with respect to the ninth category of serious injury, regarding the complainant driver.
The aforementioned evidence amply satisfied the defendants' initial burden of demonstrating that the complainant driver did not sustain a serious injury, with regards to all categories except for the ninth category of 90/180-days. Thus, the burden then shifted to the complainant driver to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law, as to all categories except for the ninth category of 90/180-days. Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint.
In opposition to the motion, the complainant driver submitted the uncertified police accident report, pleadings, unsworn medical records, an affirmation and narrative report of the complainant's physiatrist, an affirmation and MRI report of the complainant's radiologist, and the complainant's own affidavit.
A medical affirmation or affidavit which is based upon a physician's personal examinations and observation of the complainant is an acceptable method to provide a doctor's opinion regarding the existence and extent of a complainant's serious injury. The causal connection must ordinarily be established by competent medical proof. The complainant has established a causal connection between the accident and the injuries. The affirmation submitted by the treating physiatrist sets forth the objective examination, tests, and review of medical records which were performed contemporaneously with the accident to support his conclusion that the complainant suffered significant range of motion deficits in the complainant's neck and lower back.
The physician’s medical examination opines that the injuries are permanent in nature, significant, causally related to the motor vehicle accident and result in a permanent consequential impairment of the patient's abilities. Clearly, the complainants' experts' conclusions are not based solely on the complainant driver's subjective complaints of pain, and therefore are sufficient to defeat the motion.
Therefore, the complainant driver has raised a triable issue of fact and accordingly, the defendants' motion for summary judgment is denied in its entirety as against the complainant driver.