Grossman v. Wright
| Decision Date | 08 May 2000 |
| Citation | 268 A.D.2d 79,707 N.Y.S.2d 233 |
| Parties | HELENE GROSSMAN, Plaintiff,<BR>v.<BR>ANNA WRIGHT et al., Defendants. (Action No. 1.)<BR>RICARDO RIVERA et al., Plaintiffs,<BR>v.<BR>ANNA WRIGHT et al., Defendants. (Action No. 2.)<BR>RICARDO PALACIOS, Respondent,<BR>v.<BR>ANNA WRIGHT, Appellant. (Action No. 3.) |
| Court | New York Supreme Court — Appellate Division |
Frank V. Merlino (Sweetbaum & Sweetbaum, Lake Success [Marshall D. Sweetbaum] of counsel), for appellant.
On this appeal, we are asked to determine if the plaintiff Ricardo Palacios, through the introduction of legally competent evidence, raised a triable issue of fact as to whether he sustained a serious physical injury within the meaning of Insurance Law § 5102 (d). We note at the outset that in opposition to the defendant's motion papers, which established a prima facie case of entitlement to summary judgment, the plaintiff failed to submit legally admissible evidence to support his contention that he had suffered a serious injury. The Supreme Court, however, failed to address the threshold issue of the competency of the plaintiff's submissions in determining the motion. We therefore take this opportunity to clarify the type and quality of evidence that a plaintiff must submit in order to establish that he or she has suffered a serious injury within the meaning of Insurance Law § 5102 (d).
This litigation is the result of a motor vehicle accident which occurred on November 6, 1994, at the intersection of Route 231 and Commack Road in North Babylon, Suffolk County. The collision gave rise to three actions, but only the action entitled Ricardo Palacios v Anna Wright is the subject of this appeal. At the time of the accident, the defendant Anna Wright (hereinafter the defendant) was operating a motor vehicle which collided with a motor vehicle operated by Ricardo Rivera. The impact propelled the Rivera vehicle into a vehicle operated by the plaintiff Ricardo Palacios (hereinafter the plaintiff).
By summons and complaint sworn to on January 5, 1996, the plaintiff commenced this action alleging that the accident was caused solely by the negligence of the defendant, and that as a result of the accident he sustained a serious physical injury as defined by Insurance Law § 5102 (d). The plaintiff submitted a verified response to a request for a bill of particulars stating that his injuries consisted, inter alia, of: "cervical sprain/strain syndrome, internal derangement, cervicocranial syndrome with myofascial pain syndrome, cervical radiculitis, * * * straightening of normal cervical lordosis, * * * lumbar spine internal derangement with herniated disc at L4-5 with thoracic radiculitis * * * [and] a diffuse circumferential bulging of the L4-5 disc causing narrowing of the right and left neural foramen." The plaintiff specifically alleged that as a result of the accident and the aforementioned injuries, he sustained a "significant limitation of use of a body function or system" (Insurance Law § 5102 [d]).
Following receipt of the verified bill of particulars, the defendant moved pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that the plaintiff failed to establish that he had sustained a serious injury within the meaning of Insurance Law § 5102 (d). In support of her motion, the defendant supplied, inter alia, affirmed medical reports prepared by Stephen G. Zolan, an orthopedic surgeon, and M. Williams, a radiologist.
The report by Dr. Zolan was dated April 22, 1998. He stated that he conducted an independent examination of the plaintiff two days earlier. Dr. Zolan stated that the plaintiff had advised him that he injured his neck, back, and left shoulder in the accident and had remained out of work for one and one-half weeks because of the injuries. He resumed his full duties as a stockbroker at that juncture. The plaintiff reported to Dr. Zolan that at the time of the examination he was not undergoing any treatments, nor was he taking any prescription medication. Dr. Zolan noted that the plaintiff had been treated at the Deer Hills Chiropractic Group directly after the accident. The initial treatments were performed three or four times weekly and were later reduced to once a week. These treatments ceased after one and-one-half years.
Dr. Zolan's report specified the observations he made and the tests he conducted on the plaintiff during the physical examination. He observed that the plaintiff was able to get on and off the examination table unassisted, and that the plaintiff walked with a normal gait. Dr. Zolan concluded that the plaintiff's injuries were causally related to the accident. His diagnosis, however, was that the cervical and lumbar sprains were resolved, as was the left shoulder contusion, and that, in his medical opinion, the plaintiff presented no evidence of orthopedic injury.
Dr. Williams submitted a report, dated December 18, 1995, in which he affirmed that he reviewed a magnetic resonance image (hereinafter MRI) of the plaintiff's lumbar spine taken on December 1, 1994. He wrote that the MRI showed a bulging annulus as well as disc narrowing at the L4-5 disc space level. He commented that these findings were chronic and unrelated to the accident. He also found that the remainder of the lumbar spine, including the lumbar curvature, were unremarkable. He found no evidence of fracture or pathologic subluxation. He concluded that the MRI did not reveal any injuries related to the accident.
In opposition to the motion, the plaintiff submitted his own affidavit, as well as an affirmation by Dickran Mgrdechian, a doctor of chiropractic medicine, and other medical records which were not in admissible form. In his affirmation dated January 25, 1999, Dr. Mgrdechian stated that he examined the plaintiff on January 4, 1999. He indicated that the plaintiff complained of daily headaches, pain in the left side of his neck, and constant lower back pain. As part of the examination, he performed range of motion tests on both the lumbar and cervical portions of the plaintiff's spine. He found slight restrictions in the range of motion of the lumbar spine upon extension and left rotation. The plaintiff exhibited 20 degrees flexation as opposed to the normal 30 degrees. He found a restricted range of motion in every function of the cervical spine, ranging from a 10-degree diminution to a 30-degree diminution. He rendered an opinion, based upon the history provided by the plaintiff, that a causal relationship existed between the accident and the injury. Further, based upon the loss of flexation, the plaintiff's condition could be considered chronic and permanent.
The plaintiff related in his affidavit that he had been forced to make lifestyle changes as a result of the injuries. He could no longer play football, basketball, tennis, or lift weights, activities he greatly enjoyed and missed. He repeated that he was in daily pain. He also took exception to Dr. Zolan's conclusion, noting that Dr. Zolan's entire examination lasted only 10 minutes.
In her reply, the defendant contended that the plaintiff's response was insufficient to defeat the motion because it consisted of Dr. Mgrdechian's unsworn affirmation, which was patently inadmissible as evidence, and that, in any event, Dr. Mgrdechian's findings should be ignored because they failed to indicate the objective basis upon which he determined the stated degrees of limitation in the plaintiff's cervical spine.
The Supreme Court denied the motion, concluding that the plaintiff had submitted admissible evidence which raised triable issues of fact precluding summary judgment.
Determination of this case begins with the definition of "serious injury" as contained in the Insurance Law. A serious injury must be a personal injury, "[W]hich results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitutes such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102 [d]).
The analysis of the meaning of serious injury has a long history beginning with Licari v Elliott (57 NY2d 230). Applying what could be gleaned from the legislative intent, the Court of Appeals, analyzing the word "significant," wrote that ...
To continue reading
Request your trial
-
Hodder v. U.S., 01 CV 8086(CLP).
...by his own expert must be adequately explained.'" DeJesus v. Rafael, 2003 WL 21305358, at *3 (citing Grossman v. Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233, 237 (2d Dep't 2000)). Considering these principles and the testimony presented at trial, as discussed below, this Court concludes that pl......
-
Jones v. U.S.
...finding that, "[t]he mere parroting of language tailored to meet statutory requirements is insufficient." 268 A.D.2d 79, 83-84, 707 N.Y.S.2d 233, 236-37 (2d Dept.2000) ("summary judgment should be granted in cases where the plaintiff's opposition is limited to `conclusory assertions tailore......
-
Sant v. Iglesias
...72 A.D.3d 878, 900 N.Y.S.2d 321 [2d Dept 2010]; Fragale v Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001]; Grossman v Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 [2000]; Vignola v Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [2d Dept 1997]; Torres v Micheletti, 208 A.D.2d 519, 616 N.Y.S.......
-
Pena v. Hanh Thi Le
... ... by the plaintiffs own physicians (see Fragale v ... Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2001]; ... Grossman v Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 ... [2000]; Vignola v Varrichio, 243 A.D.2d 464, 662 ... N.Y.S.2d 831 [1997]; Torres v Micheletti, 208 ... ...
-
Recent New York appellate decisions will impact municipal tort litigation.
...Car Sys., Inc., 774 N.E.2d 1197, 1199-1200 (N.Y. 2002); Oberly v. Bangs Ambulance, 751 N.E.2d 457, 460 (N.Y. 2001); Grossman v. Wright, 707 N.Y.S.2d 233, 236-37 (App. Div. (6.) N.Y. INS. LAW [section] 5102(d) (Consol. 2003). (7.) See, e.g., Faragiano v. Town of Concord, 749 N.E.2d 184, 184-......