Perl v. Meher

CourtNew York Supreme Court Appellate Division
Writing for the CourtDILLON
Citation902 N.Y.S.2d 632,74 A.D.3d 930
Decision Date08 June 2010
PartiesJoseph PERL, et al., respondents, v. Mehmood MEHER, et al., appellants.
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.

902 N.Y.S.2d 633

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.

74 A.D.3d 930

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).

74 A.D.3d 931

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;

902 N.Y.S.2d 634
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 facie

74 A.D.3d 932
entitlement 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....

To continue reading

Request your trial
20 practice notes
  • YB v. Carey, 2021-51115
    • United States
    • New York Civil Court
    • November 19, 2021
    ...v Meher, 18 N.Y.3d 208, 217, 960 N.E.2d 424, 428, 936 N.Y.S.2d 655, 659, 2011 NY LEXIS 3320, *7, 2011 NY Slip Op 8452, 4 [2011] revg 74 A.D.3d 930, 931, 902 N.Y.S.2d 632 [2d Dept 2010]). Defendant's expert Dr. Chiaramonte affirms in the admissible medical examination of a then, 20 year-old ......
  • Caracciolo v. Elmont Fire Dist., Index No. 21049/09
    • United States
    • United States State Supreme Court (New York)
    • June 22, 2011
    ...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)Perl v. Meher, 74 A.D.3d 930, 633-634, 902 N.Y.S.2d 632 [2nd Dept, 2010].Page 4The defense proffers the September 14, 2010 affirmation of Dorothy Scarpinato, M.D., who pe......
  • Artis v. Lucas
    • United States
    • United States State Supreme Court (New York)
    • May 10, 2011
    ...( see Iannello v. Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654;Granovskiy v. Zarbaliyev, 78 A.D.3d 656, 909 N.Y.S.2d 667;cf. Perl v. Meher, 74 A.D.3d 930, 902 N.Y.S.2d 632;Bengaly v. Singh, 68 A.D.3d 1030, 1031, 890 N.Y.S.2d 352;Moriera v. Durango, 65 A.D.3d 1024, 1024–1025, 886 N.Y.S.2d 45;To......
  • Swensen v. MV Transp., Inc.
    • United States
    • New York Supreme Court Appellate Division
    • November 15, 2011
    ...910; Iannello v. Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654; Granovskiy v. Zarbaliyev, 78 A.D.3d 656, 909 N.Y.S.2d 667; cf. Perl v. Meher, 74 A.D.3d 930, 902 N.Y.S.2d 632; Bengaly v. Singh, 68 A.D.3d 1030, 1031, 890 N.Y.S.2d 352; Moriera v. Durango, 65 A.D.3d 1024, 1024–1025, 886 N.Y.S.2d 45......
  • Request a trial to view additional results
20 cases
  • YB v. Carey, 2021-51115
    • United States
    • New York Civil Court
    • November 19, 2021
    ...v Meher, 18 N.Y.3d 208, 217, 960 N.E.2d 424, 428, 936 N.Y.S.2d 655, 659, 2011 NY LEXIS 3320, *7, 2011 NY Slip Op 8452, 4 [2011] revg 74 A.D.3d 930, 931, 902 N.Y.S.2d 632 [2d Dept 2010]). Defendant's expert Dr. Chiaramonte affirms in the admissible medical examination of a then, 20 year-old ......
  • Caracciolo v. Elmont Fire Dist., Index No. 21049/09
    • United States
    • United States State Supreme Court (New York)
    • June 22, 2011
    ...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)Perl v. Meher, 74 A.D.3d 930, 633-634, 902 N.Y.S.2d 632 [2nd Dept, 2010].Page 4The defense proffers the September 14, 2010 affirmation of Dorothy Scarpinato, M.D., who pe......
  • Artis v. Lucas
    • United States
    • United States State Supreme Court (New York)
    • May 10, 2011
    ...( see Iannello v. Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654;Granovskiy v. Zarbaliyev, 78 A.D.3d 656, 909 N.Y.S.2d 667;cf. Perl v. Meher, 74 A.D.3d 930, 902 N.Y.S.2d 632;Bengaly v. Singh, 68 A.D.3d 1030, 1031, 890 N.Y.S.2d 352;Moriera v. Durango, 65 A.D.3d 1024, 1024–1025, 886 N.Y.S.2d 45;To......
  • Swensen v. MV Transp., Inc.
    • United States
    • New York Supreme Court Appellate Division
    • November 15, 2011
    ...910; Iannello v. Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654; Granovskiy v. Zarbaliyev, 78 A.D.3d 656, 909 N.Y.S.2d 667; cf. Perl v. Meher, 74 A.D.3d 930, 902 N.Y.S.2d 632; Bengaly v. Singh, 68 A.D.3d 1030, 1031, 890 N.Y.S.2d 352; Moriera v. Durango, 65 A.D.3d 1024, 1024–1025, 886 N.Y.S.2d 45......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT