Meely v. 4 G's Truck Renting

• Decision Date: 31 January 2005
• Docket Number: 2003-02933.
• Citation: 16 A.D.3d 26,789 N.Y.S.2d 277,2005 NY Slip Op 00545
• Parties: MARK MEELY et al., Appellants, v. 4 G's TRUCK RENTING CO., INC., et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

16 A.D.3d 26

789 N.Y.S.2d 277

2005 NY Slip Op 00545

MARK MEELY et al., Appellants, v. 4 G's TRUCK RENTING CO., INC., et al., Respondents, et al., Defendants.

2003-02933.

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

January 31, 2005.

Appeal from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated February 25, 2003 and entered in an action to recover damages for personal injuries. The order, insofar as appealed from, granted the motion of the defendants-respondents for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Weiss & Rosenbloom, P.C., New York City (Barry D. Weiss of counsel), for appellants.

Morris, Duffy, Alonso & Faley, LLP, New York City (Anna J. Ervolina and Andrea M. Alonso of counsel), for respondents.

OPINION OF THE COURT

CRANE, J.

The defendants 4 G's Truck Renting Co., Inc., and Samuel Clarke (hereinafter the respondents) moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d). The issue presented is whether the respondents satisfied their prima facie burden on the motion. The respondents submitted the plaintiffs' unaffirmed magnetic resonance imaging (hereinafter MRI) reports which stated that the plaintiffs had bulging or herniated discs. They added the affirmed reports from their own medical experts which expressed disagreement with the plaintiffs' MRI reports and set forth the opinion that the plaintiffs had no limitations in their ranges of motion nor suffered from any other disabilities. We hold that this evidence was sufficient to establish the respondents' prima facie entitlement to judgment as a matter of law, and to the extent that DeVeglio v Oliveri (277 AD2d 345 [2000]) may be read to the contrary, it should no longer be followed.

This is an action to recover damages for personal injuries arising out of a multiple-vehicle accident occurring on December 16, 1999. The plaintiff Melvin Frasier was a passenger in a vehicle operated by the plaintiff Mark Meely. While stopped in traffic, their vehicle was struck in the rear by a vehicle owned and operated by the defendant Jin Yu Hua, which, in turn, had been struck in the rear by a vehicle owned and operated by the defendant Michael Benimowitz. The Benimowitz vehicle had been struck in the rear by a vehicle owned by the respondent 4 G's Truck Renting Co., Inc., and operated by the respondent Samuel Clarke.

Meely and Frasier commenced this action on April 19, 2000. Meely alleged in his bill of particulars, inter alia, that as a result of the accident he sustained herniated discs at L4-5 and L5-S1, which indented the thecal sac, and bulging discs at L2-3 and L3-4. Frasier alleged in his bill of particulars, inter alia, that he sustained a herniated disc at C3-4, which indented the thecal sac, a bulging disc at C4-5, and herniated discs at C5-6 and C6-7.

The respondents moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither Meely nor Frasier sustained a serious injury within the meaning of Insurance Law § 5102 (d).

In support of their motion with respect to the plaintiff Mark Meely, the respondents submitted, inter alia, an affirmed report from neurologist Dr. Paul Slotwiner, the unaffirmed report of an MRI of Meely's lumbar spine, and an affirmed report of radiologist Dr. Arthur Fruauff whom the respondents hired to review the MRI of Meely's lumbar spine.

Dr. Slotwiner examined Meely on behalf of the respondents on March 21, 2002. He reported that he reviewed, among other things, the unaffirmed report of the MRI of Meely's lumbar spine which revealed the herniated and bulging discs. Dr. Slotwiner found that Meely suffered no limitation in his range of motion and no neurologic abnormalities or sequelae as a result of the accident of December 16, 1999.

The unaffirmed report of the MRI of Meely's lumbar spine dated April 4, 2000, stated that Meely had bulging discs at L2-3 and L3-4, a herniated disc at L4-5 indenting the thecal sac, and a central herniated disc at L5-S1 indenting the thecal sac.

Dr. Fruauff reviewed the MRI of Meely's lumbar spine. In his affirmed report dated April 17, 2002, Dr. Fruauff stated that he found no evidence of disc herniation and he concluded that Meely suffered from degenerative disc disease. He also opined that Meely suffered from diffusely bulging discs which were secondary to the degenerative disc disease. Dr. Fruauff stated that there were no findings on the MRI which were causally related to the motor vehicle accident.

In support of their motion with respect to the plaintiff Melvin Frasier, the respondents submitted, inter alia, an affirmed report from Dr. Slotwiner, the unaffirmed report of the MRI of Frasier's cervical spine, and an affirmed report of Dr. Fruauff whom the respondents hired to review the MRI of Frasier's cervical spine.

Dr. Slotwiner examined Frasier on behalf of the respondents on March 21, 2002. He reported that he reviewed, among other things, the unaffirmed report of the MRI of Frasier's cervical spine which diagnosed the herniated and bulging discs. Dr. Slotwiner found no limitation in Frasier's range of motion. He concluded that there were no objective abnormalities on neurologic examination, and no objective findings indicating any neurologic sequelae of the motor vehicle accident.

The unaffirmed report of the MRI of Frasier's cervical spine dated April 4, 2000 stated that Frasier had a herniated disc at C3-4, indenting the thecal sac, a bulging disc at C4-5, and herniated discs at C5-6 and C6-7.

Dr. Fruauff reviewed the MRI of Frasier's cervical spine. In his affirmed report dated April 17, 2002, Dr. Fruauff stated that he found no evidence of disc herniation, and he concluded that Frasier suffered from degenerative disc disease of the cervical spine. Dr. Fruauff opined that there were no findings on the MRI which were causally related to the motor vehicle accident of December 16, 1999.

In opposition to the motion, the plaintiffs argued that the MRI reports submitted by the respondents which reported that they each suffered from herniated or bulging discs were sufficient to deprive the respondents of summary judgment because those reports established that each plaintiff sustained a serious injury. Relying on this Court's holding in DeVeglio v Oliveri (277 AD2d 345 [2000]), the plaintiffs further argued that the contradictory evidence offered by the respondents, consisting of Dr. Fruauff's interpretations of the MRIs which disagreed with the interpretations of the MRIs set forth in the unaffirmed reports of the plaintiffs' radiologist, raised an issue of fact requiring denial of the motion. The plaintiffs submitted no medical evidence in opposition to the motion.

The Supreme Court granted the motion for summary judgment dismissing the complaint insofar as asserted against the respondents. We affirm.

A defendant may submit unsworn medical reports and records of an injured plaintiff's physicians in support of a motion for summary judgment (see Mantila v Luca, 298 AD2d 505 [2002]; Itkin v Devlin, 286 AD2d 477 [2001]; Pagano v Kingsbury, 182 AD2d 268, 271 [1992]). Furthermore, a defendant who submits admissible proof that a plaintiff has a full range of motion and that he or she suffers from no disabilities has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), despite the existence of an MRI report which shows herniated or bulging discs (see e.g. Kearse v New York City Tr. Auth., 16 AD3d 45 [2005] [decided herewith]; Diaz v Turner, 306 AD2d 241, 242 [2003]; Figueroa v Westbury Trans, 304 AD2d 614 [2003]; Fauk v Jenkins, 301 AD2d 564, 565 [2003]; Bernabel v Perullo, 300 AD2d 330, 331 [2002]; Malpica v Lavergne, 294 AD2d 340 [2002]; Espinal v Galicia, 290 AD2d 528 [2002]; Duldulao v City of New York...