On 6 July 2006, plaintiff was involved in an automobile accident. Consequently, plaintiff filed a personal injury action against The Bronx defendant to recover damages for the injuries he sustained as a result of the accident. In opposition, defendant moved for a motion for summary judgment dismissing plaintiff’s complaint on the ground that plaintiff has not sustained a serious injury within the meaning of Insurance Law.
The issue that was brought before the court for resolution was whether or not plaintiff has sustained a personal injury that is within the definition of serious injury under Insurance Law, and, as such, entitles him to recover damages from defendant.
As provided for 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. This is pursuant to the ruling of the court in the landmark case of Licari v. Elliot which was decided sometime in 1982. As a rule, 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; as held in the case of Alvarez v. Prospect Hospital, in 1986, and the case of Winegrad v. New York Univ. Medical Center, in 1985. Pursuant to the court’s ruling in the case of Lowe v. Bennett, which was decided by the 1st Department sometime in 1986, the burden rests on defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff 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 plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury. This was the Westchester court’s ruling in the cases of Licari v. Elliot and Lopez v. Senatore, in 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. 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. 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. As held in the cases of Gonzalez v. Vasquez in 2003 and Ayzen v. Melendez in 2002, unsworn MRI reports are not competent evidence unless both sides rely on those reports. 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; as ruled in the cases of Pichardo v. Blum in 1999 and Feintuch v. Grella in 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. For example, in the case of Parker v. DeFontaine, 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. Besides, 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.