The above entitled action stems from personal injuries allegedly sustained by plaintiff as a result of which occurred.
On 16 May 2008, at approximately 1:20 p.m. when plaintiffs’ vehicle was exiting Northern State Parkway to Route 110 in Melville, County of Suffolk, State of New York, an automobile accidentwith defendant occurred. Plaintiff was operating a 2003 Lincoln Town Car which was owned by his employer while defendant was the owner and operator of a 2001 Chevrolet. Allegedly, the automobile that was being driven by plaintiff was struck in the rear by the automobile being driven by defendant. Defendant claims that the impact was heavy and caused his glasses to fly off and his body to move back and forth inside the vehicle despite the fact that he was seat belted. As a result of the accident, plaintiff claims that he sustained several injuries, including a spinal injury.
Consequently, on 6 April 2009, plaintiff commenced a personal injury action against defendant.
Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting her summary judgment on the ground that plaintiff did not sustain a serious injury in the subject accident as defined by New York State Insurance Law. Plaintiff opposes defendant’s motion.
Well settled is the rule that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain such, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant’s favor. Evidence may include deposition transcripts, as well as other proof annexed to an attorney’s affirmation. If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial.
Under the rules, when considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.
Notably, within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a serious injury as enumerated in Article 51 of the Insurance Law. Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a serious injury.
Accordingly, in support of a claim that the plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant’s examining physicians or the unsworn reports of the plaintiff’s examining physicians. Nevertheless, unlike the movant’s proof, unsworn reports of the plaintiff’s examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. In order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff’s injury. A plaintiff’s proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests, as the Court of Appeals in the case of Toure v. Avis Rent-a-Car Systems has ruled.
Nonetheless, these sworn tests must be paired with the doctor’s observations during the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports. On the other hand, even where there is ample proof of a plaintiff’s injury, certain factors may nonetheless override a plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiff’s complaint. Additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the car accident and the claimed injury.
Here, defendant submits the pleadings, copies of photographs of the alleged damage to plaintiff’s automobile, copies of the New York State Unified Court System Web Civil Case Details on plaintiff’s prior automobile accident lawsuits, plaintiff’s Verified Bill of Particulars for the subject motor vehicle accident, plaintiff’s Verified Bill of Particulars for his 11 February 2005 accident, the transcript of plaintiff’s examination before trial (“EBT”) testimony for the subject motor vehicle accident, the transcript of plaintiff’s EBT testimony for the 11 February 2005 accident, records of plaintiff’s treating physician, the report of the doctor who examined plaintiff on or about 4 June 2010, the records of plaintiff’s treatment at Nassau County Pain Management, Rehabilitation & Medical Offices, P.C. and the affirmed report of the doctor who performed an independent orthopedic medical examination of plaintiff on 3 August 2010.
Defendant argues that, in 2005, plaintiff was involved in a major motor vehicle accident for which he had seen a variety of medical providers and commenced a lawsuit for personal injuries arising out of said accident, with representation by the same attorneys who are representing him in the instant matter; that in addition to that prior accident in 2005, plaintiff was involved in six other prior automobile accidents, for which he commenced a lawsuit each time; that plaintiff was represented by the same counsel; that plaintiff cannot establish the requisite causation through any legally admissible evidence that his current claims are proximately related solely to the accident of 16 May 2008; that it is undisputed that the plaintiff had long-standing complaints with regard to his left shoulder, back, knees and neck; that they are related to his prior accidents, as well as his pre-existing degenerative conditions, and his diabetes; and that plaintiff’s complaints alleged to be related to injuries sustained in the May 2008 accident are simply not proximately connected.
Under the law, when moving for dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a serious injury. Within the scope of the movants’ burden, a defendant’s Suffolk medical expert must specify the objective tests upon which the stated medical opinions are based, and when rendering an opinion with respect to the plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.
In the instant case, the Court finds that the defendant has established a prima facie case that the plaintiff did not sustain serious injury within the meaning of New York State Insurance Law.
The burden of evidence now shifts to the plaintiff to overcome defendant’s submissions by demonstrating the existence of a triable issue of fact that a serious injury was sustained.
Plaintiff submits his own affidavit, an affirmation from the doctor who treated plaintiff beginning on 21 May 2008, an affidavit of the chiropractor who treated plaintiff following his May 2008 accident, the affirmation of the board certified orthopedist who examined plaintiff on 27 April 2009 and 28 August 2009 and the affidavit of the radiologist under whose auspices administered and supervised the administration and examination of the MRIs of plaintiff’s cervical spine and lumbosacral spine performed on 26 July 2008 and MRIs plaintiff’s left shoulder and left knee performed on 2 August 2008.
First, in the affirmation of the doctor who treated plaintiff beginning on 21 May 2008, it was concluded that the injuries, as diagnosed, were causally related to the motor vehicle accident of 16 May 2008 and that said injuries were consistent with the clinical presentation in the doctor’s office. The doctor opined that the herniated discs at L4-5 and L5-S1 were exacerbated by the subject accident and that the accident had caused the L4-5 herniation to impinge on the anterior aspect of the spinal canal and left root at L4-5. In sum, the doctor concluded that the limitation in ranges of motion in the cervical and lumbar spine as well as the left knee and left shoulder were significant and permanent in nature and that the patient was totally disabled.
Second, in the affidavit of the chiropractor who examined plaintiff on 16 May 2008, it was concluded that the injuries sustained by the patient are causally related to the subject motor vehicle accident of 16 May 2008.
Third, in the affirmation of the doctor who examined plaintiff on 27 April 2009, it is provided that the doctor performed quantified and comparative range of motion tests on plaintiff’s cervical and thoracolumbar spine. The doctor also concluded that the injuries, as diagnosed, are causally related to the motor vehicle accident of 16 May 20008 and the limitations in the ranges of motion as they are still present one year post accident can only be considered permanent.
And fourth, in the affirmation of the radiologist under whose auspices administered and supervised the administration and examination of the MRIs of plaintiff’s cervical spine and lumbosacral spine performed on 26 July 2008 and MRIs plaintiff’s left shoulder and left knee performed on 2 August 2008, the doctor’s impression of the cervical spine was subligamentous posterior disc herniations at C3-4, C4-5, C5-6 impinging on the anterior aspect of the spinal canal at C3-4 and C4-5 and on the anterior aspect of the spinal cord at C5-6; the doctor’s impression of the lumbosacral spine was subligamentous posterior disc herniations at L4-5 and at L5-S1 impinging on the anterior aspect of the spinal canal, the neural foramina bilaterally and the left root nerve at L4-5 and moderate to severe stenosis from L3 though L5; the doctor’s impression of the left shoulder was acromion impingement on the supraspinatus muscle and increased signal in the supraspinatus tendon consistent with tendinopathy; and the doctor’s impression of the left knee was sprain of the anterior cruciate ligament and findings consistent with a tear in the posterior horn of the medical meniscus.
Lastly, plaintiff submits his own affidavit in support of his 90/180 argument. Plaintiff states that during the first six months after the accident, he was unable to perform several personal acts like food shopping, carrying groceries, exercising, enjoying social gatherings, etc.; and that despite the prior accidents he was involved in, at the time of the accident of 16 May 2008, he was pain free and leading a full normal active lifestyle including going to work as a limo driver.
In conclusion, the Court finds that the affirmations and affidavits provided by plaintiff clearly raise genuine issues of fact as to injuries causally related to the 17 May 2008 accident. Accordingly, defendant’s motion for summary judgment is denied.
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