Palmer v. Amaker
| Decision Date | 13 June 1988 |
| Citation | 141 A.D.2d 622,529 N.Y.S.2d 536 |
| Parties | Edward H. PALMER, Respondent, v. Gladys M. AMAKER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Pizzitola & Inzerillo, Commack (Gail M. Lolis, of counsel), for appellant.
Herbert F. Gallagher, Garden City, for respondent.
Before MANGANO, J.P., and BROWN, KOOPER and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Harwood, J.), dated December 29, 1986, which denied her motion for summary judgment.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The plaintiff was standing in the street on May 2, 1983, when he was struck by an automobile being operated by the defendant. He was taken to the Nassau Hospital emergency room where X-rays were taken, and he was treated for contusions and abrasions before being released. The X-rays failed to reveal any fractures or abnormalities. A few days after the accident he visited his doctor complaining of pain and the doctor noted that the plaintiff showed a "mild limitation of motion of the neck on turning" and "[t]rauma to [the] right knee". An orthopedist also examined the plaintiff and found a contusion to the left knee. By May 18, 1983, the plaintiff's physician indicated that the plaintiff had no complaints of pain. The defendant's medical expert examined the plaintiff six months later and found that the plaintiff had sustained lumbar and cervical sprains as well as a knee sprain and a mild limitation of motion of the thoraco-lumbrosacral spine. Between August and December 1984 the plaintiff was treated by a chiropractor for traumatic myofascial pain and low back pain. The plaintiff returned to work almost immediately after the accident although he claims to have been restricted to light duty on an intermittent basis.
Initially, we do not agree with the defendant's contention that since the physicians' reports attached to the plaintiff's papers were not in the form of sworn testimony they were insufficient as a matter of law to oppose the defendant's motion for summary judgment on the no-fault issue of "serious injury". While certain decisions in the other judicial departments have held physicians' reports to be insufficient ( see, e.g., Callas v. Malone, 135 A.D.2d 1016, 522 N.Y.S.2d 746; Zoldas v. Louise Cab Corp., 108 A.D.2d 378, 489 N.Y.S.2d 468; Ferguson v. Temmons, 79 A.D.2d 1090, 435 N.Y.S.2d 828), we decline to follow those decisions since this court has already indicated that "[t]he submission of a medical affidavit is not a sine qua non to [the defendant's] prevailing on a summary judgment motion predicated upon a failure to establish a serious injury" ( Songer v. Muthig, 131 A.D.2d 657, 516 N.Y.S.2d 737; see also, Padron...
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