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.
Here, defendant has established a prima facie case that plaintiff did not suffer a serious injury as defined in Insurance Law, for all categories. The defendant submitted, among other things, the affirmed reports of four independent examining and/or evaluating physicians, particularly, an orthopedist, a neurologist, two radiologists, and plaintiff’s verified bill of particulars.
According to Dr. AA, defendant’s independent examining orthopedist, in his affirmed report, he examined plaintiff on 5 February 2006; the examination revealed a diagnosis of resolved cervical and lumbosacral strains/sprains; and he concluded that plaintiff’s examination was non-focal and plaintiff was neurologically intact.
According to Dr. BB, defendant’s independent examining neurologist, in her affirmed report, she examined plaintiff on 7 February 2008; and the examination revealed a diagnosis of resolved post cervical and lumbar sprains.
According to Dr. CC and Dr. DD, defendant’s independent evaluating radiologists, in their affirmed report, plaintiff’s MRI of the cervical spine which was taken on 10 August 2006 revealed a diagnosis of multilevel disc dessication and degeneration, and posterior and anterior disc displacement as described in association with productive bony changes; they both opined that the findings were consistent with a chronic degenerative spinal disease or a spinal injury which was a pre-existing condition and was a long-standing discogenic disease; and they concluded that the findings most likely reflected natural wear and tear. On plaintiff’s MRI of the lumbar spine which was taken on 16 August 2006, both doctors found that it revealed a diagnosis of degenerated, herniated L5-S1 disc in association with productive bony changes; they both opined that the findings were also consistent with a chronic degenerative spinal disease or a spinal injury which was a pre-existing condition and was a long-standing discogenic disease; and they also concluded that the findings most likely reflected natural wear and tear.
Evidently, the defendant has submitted proof in admissible form in support of his motion for summary judgment, for all categories of serious injury. In addition, the defendant has also established a prima facie case for the category of 90/180 days. According to the plaintiff, in her verified bill of particulars, she was only confined to bed for four (4) days; she was only confined to home for five (5) days; and she was not confined to the hospital. These admissions clearly show that plaintiff was not curtailed from nearly all activities for the bare minimum of 90/180, as required by the statute.
Based on the evidence presented, defendant has indeed demonstrated that plaintiff did not sustain a serious injury. Thus, the burden then shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint.
Here, plaintiff has failed to raise a triable issue of fact. In opposition to the defendant’s motion, plaintiff submitted the following: a physician’s affirmation of plaintiff’s orthopedist, Dr. A; a physician’s affirmation of plaintiff’s radiologist, Dr. B, pertaining to plaintiff’s cervical spine; a physician’s affirmation of plaintiff’s radiologist, Dr. B, pertaining to plaintiff’s lumbosacral spine; MRI reports of Dr. B pertaining to plaintiff’s cervical and lumbosacral spine; an attorney’s affirmation; and plaintiff’s own affidavit.
While the defendant’s independent examining radiologists opined in their affirmed report that their examination of plaintiff revealed a chronic degenerative spinal disease or a spinal injury which was a pre-existing degenerative condition in both the cervical and lumbar spines, plaintiffs’ experts nonetheless failed to indicate their awareness that plaintiff was suffering from such condition and failed to address the effect of these findings on plaintiff’s claimed accident injuries. Henceforth, as held in the celebrated case of Pommels v. Perez which was decided by the court sometime in 2005, plaintiff failed to rebut defendant’s claim sufficiently to raise a trial issue of fact. Moreover, the plaintiff has failed to come forward with sufficient evidence to create an issue of fact as to whether the plaintiff sustained a medically-determined injury which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying automobile accident. Under the rules, the record must contain objective or credible evidence to support the plaintiff’s claim that the injury prevented plaintiff from performing substantially all of her customary activities. 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 her usual activities to a great extent, rather than some slight curtailment. In the case at bar, plaintiff has failed to include experts’ reports or affirmations which render an opinion on the effect the injuries claimed may have had on the plaintiff for the 180-day period immediately following the subject automobile accident. As such, plaintiff’s submissions were insufficient to establish a triable issue of fact as to whether plaintiff suffered from a medically determined injury that curtailed her from performing her usual activities for the statutory period. Obviously, plaintiff’s claim that her injuries prevented her from performing substantially all of the material acts constituting her customary daily activities during at least 90 of the first 180 days following the accident was insufficient to raise a triable issue of fact, as held in the case of Graham v Shuttle Bay which was decided by the 1st Dept. sometime in 2001; the case of Hernandez v. Cerda which was decided by the 2nd Dept. sometime in 2000; and the case of Ocasio v. Henry which was also decided by the 2nd Dept. sometime in 2000. Moreover, plaintiff’s attorney’s affirmation was not an admissible probative evidence of medical issues. Plaintiff’s attorney has failed to demonstrate personal knowledge of the plaintiff’s injuries. What’s more, plaintiff’s affidavit and deposition statements were self-serving and were not given great weight. They were insufficient to raise triable issues of fact.
Based on the evidence presented, plaintiff clearly failed to raise a triable issue of fact. Plaintiff’s submissions were undoubtedly insufficient.
In sum, plaintiff has not sustained a serious injury within the meaning of the Insurance Law. Thus, the defendant’s motion for summary was granted in its entirety and the plaintiff’s complaint was dismissed as to all categories.
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