Hernandez v. Almanzar, 8699.

• Decision Date: 31 August 2006
• Docket Number: 8699.
• Citation: 821 N.Y.S.2d 30,32 A.D.3d 360,2006 NY Slip Op 06350
• Parties: SHAWNTRIQUE HERNANDEZ et al., Respondents, v. GABRIEL ALMANZAR et al., Appellants.
• Court: New York Supreme Court — Appellate Division

32 A.D.3d 360

821 N.Y.S.2d 30

2006 NY Slip Op 06350

SHAWNTRIQUE HERNANDEZ et al., Respondents, v. GABRIEL ALMANZAR et al., Appellants.

8699.

Appellate Division of the Supreme Court of the State of New York, First Department.

August 31, 2006.

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered June 30, 2005, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

The first-named plaintiff seeks to recover for "serious injury" within the meaning of the No-Fault Law (Insurance Law § 5102 [d]) that she allegedly suffered in an automobile accident on February 9, 2002. In support of their motion for summary judgment, defendants submitted reports of an orthopedist and a neurologist, each of whom opined, based on his examination of plaintiff, that she had not suffered a serious injury within the meaning of the statute. Defendants also submitted the transcript of plaintiff's deposition, at which she acknowledged that, besides the February 2002 accident, she had been injured in two other automobile accidents, in October 1999 and January 2003. Plaintiff opposed defendants' motion with the affirmed report of neurologist Dr. Aric Hausknecht, dated April 19, 2005. Based on his examination of plaintiff, Dr. Hausknecht reported certain alleged range-of-motion deficits due to neck and back injuries he attributed to the February 2002 accident. Although Dr. Hausknecht acknowledged that plaintiff had been injured in the October 1999 and January 2003 accidents, he did not explain the basis for his claim that the deficits he allegedly found in April 2005—more than three years after the subject accident in February 2002—were proximately caused by that accident, rather than by the October 1999 accident, and were only exacerbated (not caused in the first instance) by the January 2003 accident. Accordingly, plaintiff failed to come forward with evidence sufficient to prove "a serious injury causally related to the [subject] accident" (Pommells v Perez, 4 NY3d 566, 579 [2005] [emphasis added]).

To the extent Dr. Hausknecht's conclusions were based on the unaffirmed reports of plaintiff's treating physicians, such reports do not constitute admissible evidence, and therefore do not suffice to defeat a well-supported summary judgment motion. The defense experts' review of such...