Kreimerman v. Stunis

• Decision Date: 01 June 2010
• Citation: 74 A.D.3d 753,902 N.Y.S.2d 180
• Parties: Angela KREIMERMAN, plaintiff, Nela Yukobov, respondent, v. Gennadiy STUNIS, et al., appellants.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 180

74 A.D.3d 753

Angela KREIMERMAN, plaintiff,Nela Yukobov, respondent,

v.Gennadiy STUNIS, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

June 1, 2010.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellants.

Mallilo & Grossman, Brooklyn, N.Y. (Olayemi Oladapo of counsel), for respondent.

MARK C. DILLON, J.P., HOWARD MILLER, RUTH C. BALKIN, JOHN M. LEVENTHAL, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated June 24, 2009, which denied their motion for summary judgment dismissing the complaint insofaras asserted by the plaintiff Nela Yukobov on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Nela Yukobov is granted.

Contrary to the determination of the Supreme Court, the defendants met their prima facie burden of showing that the plaintiff Nela Yukobov (hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). In support of their motion, the defendants relied on the affirmed medical reports of Dr. Wendy Cohen and Dr. David A. Fisher, as well as a copy of the plaintiff's deposition testimony. The plaintiff testified at her deposition that she missed, in total, two weeks of work as a result of the subject accident. In her affirmed medical report, Dr. Cohen, the defendants' examining neurologist, concluded that, as of April 30, 2008, the plaintiff had full quantified range of motion in the cervical and lumbar regions of her spine, as compared with the stated norms. Dr. Cohen further diagnosed the plaintiff with resolved cervical and lumbar strains and sprains, concluded that the plaintiff was not disabled, and deemed the plaintiff capable of performing the activities of daily life without restrictions.

Upon his review of the magnetic resonance imaging films of the cervical and lumbar regions of the plaintiff's spine dated April 20, 2004, and May 5, 2004, Dr. Fisher, the defendants' retained radiologist, noted in his affirmed reports that the plaintiff had diffuse degenerative changes throughout the cervical and lumbar regions of her spine, including bulging discs in the cervical spine. Dr. Fisher concluded that the observed bulging discs were degenerative in nature, and were unrelated to and predated the subject accident.

The Supreme Court erred in concluding that the defendants did not meet their prima facie burden because Dr. Cohen failed to address the plaintiff's claims, made at her examination by Dr. Cohen, of right shoulder, bilateral hip, and foot pain, since the plaintiff neither claimed such injuries in her complaint or bill of particulars, nor moved to amend her bill of particulars to add such injuries ( see generally Felix v. Wildred, 54 A.D.3d 891, 863 N.Y.S.2d 832; Ifrach v. Neiman, 306 A.D.2d 380, 760 N.Y.S.2d 866).

The plaintiff's submissions failed to raise a triable issue offact. Initially, the magnetic resonance imaging reports of Dr. John T. Rigney and the medical reports of Dr. Renan Macias failed to raise a triable issue of fact because they were not affirmed and, thus, not in proper form ( see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76; Chanda v. Varughese, 67 A.D.3d 947, 890 N.Y.S.2d 88; Sutton v. Yener, 65 A.D.3d 625, 884 N.Y.S.2d 163; McNeil v. New York City Tr. Auth., 60 A.D.3d 1018, 877 N.Y.S.2d 351; Sapienza v. Ruggiero, 57 A.D.3d 643, 869 N.Y.S.2d 192).

The affirmation of Dr. Teodoro Y. Pang failed to raise a triable issue of fact as well, since it failed to adequately rebut the findings of the defendants' physicians relating to the lumbar and cervical spine conditions ( see Barry v. Future Cab Corp., 71 A.D.3d 710, 896 N.Y.S.2d 423). Dr. Pang stated in his affirmation that he rendered his diagnosis upon "consideration of [his] examination, the diagnostic testing [of Dr. John T. Rigney] and the reports from Dr. Renan Macias." Dr. Pang clearly relied upon the unsworn reports of Dr. Rigney and Dr. Macias in reaching his conclusions, thus rendering those conclusions inadmissible ( see Magid v. Lincoln Servs. Corp., 60 A.D.3d 1008, 877 N.Y.S.2d 127; Sorto v. Morales, 55 A.D.3d 718, 868 N.Y.S.2d 67; Malave v. Basikov, 45 A.D.3d 539, 845 N.Y.S.2d 415; Verette v. Zia, 44 A.D.3d 747, 844 N.Y.S.2d 71; Furrs v. Griffith, 43 A.D.3d 389, 841 N.Y.S.2d 594; see also Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765). In light of Dr. Pang's express reliance on the reports of Drs. Rigney and Macias, there is no basis in the record to conclude that Dr. Pang's diagnosiswas made independent of those unsworn reports, or that his diagnosis would have been the same had...