Navedo v. Jaime, 8842.

• Decision Date: 28 September 2006
• Docket Number: 8842.
• Citation: 2006 NY Slip Op 06917,822 N.Y.S.2d 43,32 A.D.3d 788
• Parties: DOREEN M. NAVEDO et al., Appellants, v. FRANK L. JAIME, Defendant, and RAJINDER SINGH et al., Respondents.
• Court: New York Supreme Court — Appellate Division

32 A.D.3d 788

822 N.Y.S.2d 43

2006 NY Slip Op 06917

DOREEN M. NAVEDO et al., Appellants, v. FRANK L. JAIME, Defendant, and RAJINDER SINGH et al., Respondents.

8842.

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

September 28, 2006.

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered April 4, 2005, which granted the summary judgment motion of defendants Rajinder Singh and Emmanuel O. Mills and dismissed the complaint as against them, unanimously affirmed, without costs.

On September 2, 2002, plaintiffs were passengers in a taxicab owned by defendant Singh and operated by defendant Mills, when it was involved in a collision with an automobile owned and operated by defendant Jaime, who has not appeared in answer to the complaint. Following the collision, plaintiffs proceeded to their apartment building in the same taxi. Plaintiff Raul Rodriguez was able to immediately resume employment as a maintenance worker at Columbia University. Plaintiff Doreen Navedo, who was unemployed at the time of the accident, alleges that she was confined to her home for two to three weeks.

The day after the accident, plaintiffs sought treatment at Zerega Chiropractic P.C. and were referred to Bridge Medical P.C., where they were seen several days later. Navedo was diagnosed with cervical, lumbar and bilateral shoulder sprains and strains. Rodriguez was found to have cervical, thoracic, lumbar, left shoulder, bilateral knee and bilateral leg sprains and strains. MRI studies revealed that each plaintiff had bulging or herniated cervical and lumbar discs, abnormalities in lordosis and radiculopathy. Both plaintiffs received physical therapy, acupuncture and chiropractic treatment. Rodriguez was last treated on November 21, 2002 and Navedo on January 3, 2003.

This action was commenced in November 2002, and defendants Singh and Mills moved for summary judgment dismissing the complaint in mid-September 2004. In support of their motion, defendants submitted the affirmed report of Marianna Golden, M.D., who found that plaintiffs had a full range of motion, exhibited no sensory or motor deficits and proved negative on Romberg, Patrick and Kernig tests. It was the doctor's opinion that neurological examination was objectively normal and that plaintiffs' various sprains and strains had resolved. In conclusion, Dr. Golden stated that plaintiffs were capable of performing all activities of daily living, finding no objective evidence of any disability or permanency and no need for further diagnostic testing.

In opposition, plaintiffs submitted affirmed medical reports from Hal Gutstein, M.D., a board certified neurologist who examined them on October 1, 2004. The doctor also reviewed their treatment and diagnostic histories, including an affirmed medical report from Gabriel L. Dassa, D.O., an orthopedic surgeon who had evaluated plaintiffs on October 24, 2002, and unsworn cervical and lumbosacral MRI reports. Dr. Gutstein found that Navedo suffered from lumbar radiculopathy secondary to an L4-L5 bulging disc and cervical spine radiculopathy secondary to a C5-C6 disc herniation. He found that Rodriguez had lumbar radiculopathy secondary to an L5-S1 herniation and cervical spine radiculopathy secondary to a C5-C6 herniation. In each instance, the report gives the cause of the respective impairments as the accident of September 2, 2002.

Supreme Court found that the report from Dr. Golden established that neither plaintiff had sustained a serious injury within the meaning of Insurance Law § 5102 (d) and demonstrated defendants' prima facie entitlement to summary judgment. The court held that plaintiffs had failed to submit admissible opposing evidence sufficient to raise a question of fact with respect to serious injury. Relying on this Court's decision in Henkin v Fast Times Taxi (307 AD2d 814 [2003]), the court...