Mobley v. J. Foster Phillips Funeral Home, Inc.
| Decision Date | 25 February 2015 |
| Docket Number | No. 27220/11.,27220/11. |
| Citation | 16 N.Y.S.3d 792 (Table) |
| Parties | Joseph MOBLEY, Alexander Watson, Michelle Watson, Alexander Watson, Jr. and Omari Watson by their mother and natural guardian, Michele Watson, Plaintiffs, v. J. FOSTER PHILLIPS FUNERAL HOME, INC., Jerome Leary, Ricardo Record and Melanie Grenald, Defendants. |
| Court | New York Supreme Court |
Martin Kanfer, Esq. Great Neck, for Plaintiffs.
O'Connor Redd LLP by Billy D. Valentine, Esq. for Defendants J. Foster Phillips Funeral Home, Inc. and Jerome Leary, Port Chester.
Law Office of Karen L. Lawrence By Michelle F. Vlosky, Esq., Garden City, for Defendants Ricardo Record and Melanie Grenald.
| Papers | |
| Numbered | |
| Notice of Motion–Affidavits–Exhibits | 1–4 |
| Cross Motions | 5–11 |
| Opposition | 12–20 |
| Reply | 21–23 |
Upon the foregoing papers it is ordered that the motion by defendants, J. Foster Phillips Funeral Home, Inc. and Jerome Leary and cross motion by defendants Ricardo Record and Melanie Grenald for summary judgment dismissing the complaint of plaintiffs, Joseph Mobley, Alexander Watson, Alexander Watson, Jr., and Omari Watson, and Michele Watson pursuant to CPLR 3212, on the ground that plaintiffs have not sustained a serious injury within the meaning of the Insurance Law § 5102(d) are decided as follows:
At the outset, the Court notes that plaintiff opposes the instant motion in part on the grounds that the co-defendants' Answer was not included with the motion and as such, it is procedurally defective. The Court finds this argument to be unavailing in that the Court has discretion to overlook the defect if the record is “sufficiently complete” (Welch v. Hauck, 18 AD3d 1096 [3d Dept 2005] ). As the co-defendant's Answer was previously filed with the Court in a prior motion, the Court shall overlook the defect.
This action arises out of an automobile accident that occurred on November 3, 2010. Defendants have submitted proof in admissible form in support of the motion and cross-motion for summary judgment, for all categories of serious injury for all five plaintiffs except for the ninth category of “90/180 days” for plaintiffs Alexander Watson and Michele Watson. Defendants submitted, inter alia, affirmed reports from independent examining and/or evaluating physicians (a neurologist, an orthopedist, and a radiologist) and plaintiffs' Joseph Mobley, Alexander Watson, Jr. and Omari Watson's own verified bill of particulars.
Under the “no-fault” law, in order to maintain an action for personal injury, aplaintiff must establish that a “serious injury” has been sustained (Licari v. Elliot, 57 N.Y.2d 230 [1982] ). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ; Winegrad v. New York Univ. Medical Center, 64 N.Y.2d 851[1985] ). In the present action, the burden rests on defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a “serious injury” (Lowe v. Bennett, 122 A.D.2d 728 [1st Dept 1986], affd, 69 N.Y.2d 701, 512 N.Y.S.2d 364 [1986] ). When a defendant's motion is sufficient to raise the issue of whether a “serious injury” has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury (Licari v. Elliot, supra; Lopez v. Senatore, 65 N.Y.2d 1017 [1985] ).
In support of a claim that plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physician or the unsworn reports of plaintiff's examining physician (Pagano v. Kingsbury, 182 A.D.2d 268 [2d Dept 1992] ). Once the burden shifts, it is incumbent upon plaintiff, in opposition to defendant's motion, to submit proof of serious injury in “admissible form”. Unsworn reports of plaintiff's examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment (Grasso v. Angerami, 79 N.Y.2d 813 [1991] ). Thus, a medical affirmation or affidavit which is based on a physician's personal examination and observations of plaintiff, is an acceptable method to provide a doctor's opinion regarding the existence and extent of a plaintiff's serious injury (O'Sullivan v. Atrium Bus Co., 246 A.D.2d 418 [1st Dept 1998] ). Unsworn MRI reports are not competent evidence unless both sides rely on those reports (Gonzalez v. Vasquez, 301 A.D.2d 438 [1st Dept 2003] ; Ayzen v. Melendez, 749 N.Y.S.2d 445 [2d Dept 2002] ). However, in order to be sufficient to establish a prima facie case of serious physical injury the affirmation or affidavit must contain medical findings, which are based on the physician's own examination, tests and observations and review of the record rather than manifesting only the plaintiff's subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the CPLR to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice (see, CPLR 2106 ; Pichardo v. Blum, 267 A.D.2d 441 [2d Dept 1999] ; Feintuch v. Grella, 209 A.D.2d 377 [2d Dept 2003] ).
In any event, the findings, which must be submitted in a competent statement under oath (or affirmation, when permitted) must demonstrate that plaintiff sustained at least one of the categories of “serious injury” as enumerated in Insurance Law § 5102(d) (Marquez v. New York City Transit Authority, 259 A.D.2d 261 [1st Dept 1999] ; Tompkins v. Budnick, 236 A.D.2d 708 [3d Dept 1997] ; Parker v. DeFontaine, 231 A.D.2d 412 [1st Dept 1996] ; DiLeo v. Blumberg, 250 A.D.2d 364 [1st Dept 1998] ). For example, in Parker, supra, it was held that a medical affidavit, which demonstrated that the plaintiff's threshold motion limitations were objectively measured and observed by the physician, was sufficient to establish that plaintiff has suffered a “serious injury” within the meaning of that term as set forth in Article 51 of the Insurance Law. In other words, “[a] physician's observation as to actual limitations qualifies as objective evidence since it is based on the physician's own examinations.” Furthermore, in the absence of objective medical evidence in admissible form of serious injury, plaintiff's self-serving affidavit is insufficient to raise a triable issue of fact (Fisher v. Williams, 289 A.D.2d 288 [2d Dept 2001] ).
The affirmed report of defendants' independent examining neurologist, Michael Rubin, M.D., indicates that an examination of plaintiff Joseph Mobley conducted on July 8, 2013 revealed a diagnosis of: a completely normal medical evaluation. He opines that there is no limitation of neck movement. Dr. Rubin concludes that his MRI's do not show any findings that would appear to be post traumatic or causally related to the subject accident.
The affirmed report of defendants' independent evaluating radiologist, John T. Rigney, M.D., indicates that an MRI of the Cervical Spine
of plaintiff Joseph Mobley dated November 30, 2010 indicates degeneration of the intervertebral discs and vertebral spondylosis.
The affirmed report of defendants' independent evaluating radiologist, John T. Rigney, M.D., indicates that an MRI of the Lumbar Spine
of plaintiff Joseph Mobley dated November 30, 2010 indicates an impression of straightening of lumbar curvature and no evidence of a posterior bulge or herniation. He opines that there is no evidence of any injury to the lumbar spine as a result of this accident.
The affirmed report of defendants' independent evaluating radiologist, John T. Rigney, M.D., indicates that an MRI of the Left Shoulder of plaintiff Joseph Mobley dated December 22, 2010 indicates an impression of degenerative change of the glenoid labra without a tear.
The affirmed report of defendants' independent examining orthopedist, Robert S. Goldstein, M.D., indicates that an examination of plaintiff Alexander Watson conducted on November 21, 2013 revealed a diagnosis of: no objective findings noted on clinical examination relating to the subject accident. He opines that there is no need for further testing or orthopedic treatment. Dr. Goldstein concludes that plaintiff Alexander Watson has completely recovered from his neck and lower back injuries alleged as a result of the subject motor vehicle accident and that the prognosis is excellent.
The affirmed report of defendants' independent examining neurologist, Michael Rubin, M.D., indicates that an examination of plaintiff Alexander Watson conducted on November 20, 2013 revealed a diagnosis of: a completely normal neurological examination. He opines that his range of motion is full everywhere. Dr. Rubin concludes plaintiff is normal with no evidence of injury due to the subject accident.
The affirmed report of defendants' independent evaluating radiologist, John T. Rigney, M.D., indicates that an MRI of the Cervical Spine
of plaintiff Alexander Watson dated December 12, 2012 indicates an impression of: vertebral spondylosis with degeneration of the intervertebral discs.
The affirmed report of defendants' independent evaluating radiologist, John T. Rigney, M.D., indicates that an MRI of the Lumbar Spine
of plaintiff Alexander Watson dated December 12, 2012 indicates an impression of: no evidence of a posterior bulge or herniation at any level. Mild anurysmal dilation of the distal abdominal aorta.
The affirmed report of defendants' independent examining orthopedist, Robert S.
Goldstein, M.D., indicates that an examination of plaintiff Alexander Watson, Jr. conducted on November 20, 2013 revealed a diagnosis of: no objective findings in the cervical spine, shoulders, or lumbar spine. He opines that there is no need for further...
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