Perl v. Meher

• Decision Date: 08 June 2010
• Parties: Joseph PERL, et al., respondents, v. Mehmood MEHER, et al., appellants.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 632

74 A.D.3d 930

Joseph PERL, et al., respondents,

v.Mehmood MEHER, et al., appellants.

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

June 8, 2010.

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

Annette G. Hasapidis, South Salem, N.Y., for respondents.

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, etc., the defendants appeal from an order of the Supreme Court, Kings County (Martin, J.), dated April 15, 2009, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Joseph Perl 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 is granted.

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff, Joseph Perl (hereinafter the injured 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The defendants' orthopedist, Dr. S. Farkas, provided a detailed explanation, including specific observations, for his conclusion that any restrictions in motion were self-imposed by the injured plaintiff and that there were no objective orthopedic findings which would indicate any disability, impairment, or limitation resulting from the accident ( see Gonzales v. Fiallo, 47 A.D.3d 760, 849 N.Y.S.2d 182).

It is well established that in threshold serious injury cases, restrictions in range of motion typically are numerically quantified ( see Friscia v. Mak Auto, Inc., 59 A.D.3d 492, 493, 873 N.Y.S.2d 197; Fiorillo v. Arriaza, 52 A.D.3d 465, 466, 859 N.Y.S.2d 699; Duke v. Saurelis, 41 A.D.3d 770, 771, 840 N.Y.S.2d 88; Desamour v. New York City Tr. Auth., 8 A.D.3d 326, 327, 777 N.Y.S.2d 706), compared to the norms ( see Fiorillo v. Arriaza, 52 A.D.3d at 466, 859 N.Y.S.2d 699; Malave v. Basikov, 45 A.D.3d 539, 845 N.Y.S.2d 415; Nociforo v. Penna, 42 A.D.3d 514, 515, 840 N.Y.S.2d 396; McNulty v. Buglino, 40 A.D.3d 591, 836 N.Y.S.2d 198), and based upon identified objective tests ( see Sapienza v. Ruggiero, 57 A.D.3d 643, 644, 869 N.Y.S.2d 192; Gastaldi v. Chen, 56 A.D.3d 420, 421, 866 N.Y.S.2d 750; Young Hwan Park v. Orellana, 49 A.D.3d 721, 854 N.Y.S.2d 447; Murray v. Hartford, 23 A.D.3d 629, 804 N.Y.S.2d 416; Nozine v. Sav-On Car Rentals, 15 A.D.3d 555, 556, 790 N.Y.S.2d 204). These requirements are applied to defendants seeking summary judgment, as well as to plaintiffs opposing summary judgment. The plaintiffs are also required to demonstrate restricted range of motion based on findings both contemporaneous to the accident ( see Stevens v. Sampson, 72 A.D.3d 793, 898 N.Y.S.2d 657; Jack v. Acapulco Car Serv., Inc., 72 A.D.3d 646, 897 N.Y.S.2d 648; Sierra v. Gonzalez First Limo, 71 A.D.3d 864, 895 N.Y.S.2d 863; Little v. Locoh, 71 A.D.3d 837, 897 N.Y.S.2d 183) and upon recent findings ( see Sham v. B & P Chimney Cleaning & Repair Co. Inc., 71 A.D.3d 978, 900 N.Y.S.2d 72; Carrillo v. DiPaola, 56 A.D.3d 712, 869 N.Y.S.2d 135;Krauer v. Hines, 55 A.D.3d 881, 882, 866 N.Y.S.2d 340).

Here, Dr. Leonard Bleicher examined the injured plaintiff on May 2, 2005, shortly after the accident, as Dr. Bleicher was his treating physician. The affirmation of Dr. Bleicher, submitted in opposition to the defendants' motion for summary judgment, failed to identify the range of motion tests utilized by him, the numerical results of those tests, or the norms against which results are measured. The affirmation, therefore, failed to meet the requirements set forth in this Court's sound and well-established precedents.

We disagree with the suggestion of our dissenting colleagues that Dr. Bleicher's arguably adequate findings from the examination of the injured plaintiff on June 25, 2007, some two years after the accident, quantifying restrictions compared to norms and based upon objective tests, can, in effect, be stretched to remedy the multiple deficiencies of the 2005 findings which were made only days after the accident. While a physician's description of "norms" may be capable of transfer from one examination to another by that physician, the same cannot be said for the quantification of an examinee's restricted motion and of the objective tests utilized to measure restrictions, since such information may differ from one examination to the next.

Where, as here, the defendants established their prima facieentitlement to judgment as a matter of law, the burden shifted to the plaintiffs opposing summary judgment to raise in admissible form triable issues of fact ( see Gaddy v. Eyler, 79 N.Y.2d at 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176; Franco v. Akram, 26 A.D.3d 461, 809 N.Y.S.2d 465; D'Amato v. Mandello, 2 A.D.3d 482, 767 N.Y.S.2d 894). With respect to Dr. Bleicher's May 2, 2005, examination of the injured plaintiff, the plaintiffs failed to meet this burden. The result urged by our dissenting colleagues, that we deem the 2007 findings as somehow curing the shortcomings of the reported 2005 findings, is not supported by the applicable law and can only be reached by disregarding this Court's precedent which we are not prepared here to sanction.

We also disagree with our dissenting colleagues' conclusion that Dr. Bleicher's affirmation was sufficient to raise a triable issue of fact based upon a qualitative assessment of the injured plaintiff's condition, both contemporaneous to the accident and recently ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d at 350-351, 746 N.Y.S.2d 865, 774 N.E.2d 1197). For a qualitative evaluation to suffice, the Court of Appeals has held that it must have "an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" ( id. at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197; see Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 647 N.E.2d 105). Here, the plaintiffs did not argue the issue of qualitative assessment in their appellate submission. In any event, Dr. Bleicher's failure to identify, inter alia, the objective tests utilized by him during his 2005 examination of the injured plaintiff deprives the plaintiffs of admissible qualitative assessment opinion.

The plaintiffs' remaining contentions are without merit.

DILLON, J.P., MILLER and BALKIN, JJ., concur.

AUSTIN, J., dissents and votes to affirm the order appealed from, with the following memorandum in which LEVENTHAL, J., concurs:

By ruling that the injured plaintiff, Joseph Perl (hereinafter the injured plaintiff), failed to strictly comply with a standard of medical proof which can be foundnowhere in Insurance Law § 5102(d), the majority bars a colorably meritorious claim from reaching a jury. Because I believe that such an approach is contrary to New York's long-standing policy of preferring cases to be determined on the merits ( see e.g. Bunch v. Dollar Budget, Inc., 12 A.D.3d 391, 783 N.Y.S.2d 829), I respectfully dissent and vote to affirm the order appealed from.

In general, "[i]t is well settled that summary judgment is a drastic remedy that is to be granted only where there is no clear triable issue of fact" ( Mosheyev v. Pilevsky, 283 A.D.2d 469, 469, 725 N.Y.S.2d 206;see Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853). "Even the color of a triable issue forecloses the remedy" ( Rudnitsky v. Robbins, 191 A.D.2d 488, 489, 594 N.Y.S.2d 354; see Matter of Cuttitto Family Trust, 10 A.D.3d 656, 657, 781 N.Y.S.2d 696). Moreover, in deciding a summary judgment motion, the evidence must be construed in a light most favorable to the party opposing the motion ( see Pearson v. Dix McBride, LLC, 63 A.D.3d 895, 883 N.Y.S.2d 53; Mosheyev v. Pilevsky, 283 A.D.2d at 469, 725 N.Y.S.2d 206).

While I agree with the majority that the defendants met their prima facie burden of demonstrating their entitlement to judgment as a matter of law by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, I believe that the Supreme Court properly denied the motion for summary judgment dismissing the complaint, because a reading of the entirety of the physician's affirmation tendered by the injured plaintiff in opposition was sufficient to raise a triable issue of fact.

In opposition to the motion, the injured plaintiff submitted the affirmation of Dr. Leonard Bleicher, his treating physician. Dr. Bleicher concluded that the injured plaintiff suffered from "numerically and objectively determined restrictions of range [of] motion of both knees, cervical and lumbar spine," and that those "significant and permanent injuries ... represent impairments with limitation of body functions [and] are causally related to [the subject accident]." In his affirmation, Dr. Bleicher noted that when he examined the injured plaintiff on May 2, 2005, six days after the subject accident, and as a prelude to treatment rather than litigation, "[t]he patient's range of motion was less than 60% of normal in the cervical and lumbar spine." Additionally, Dr. Bleicher reported finding a "left and right knee extension decrease" during that examination. Based on his findings and the fact that the injured plaintiff had neither suffered any similar symptoms before the accident nor had any prior injuries or medical conditions which would result in such findings, Dr. Bleicher concluded that his findings on May 2, 2005, were related to the subject accident.

Dr. Bleicher further affirmed that when he re-examined the injured plainti...