Santana v. Pascual Ozuna, Augusto Reyes, & Bailey Radio Car & Limousine Corp.

• Decision Date: 11 June 2013
• Docket Number: Index No.: 308326/10
• Citation: 2013 NY Slip Op 33988 (U)
• Court: New York Supreme Court
• Parties: VICTOR A. SANTANA, Plaintiff, v. PASCUAL OZUNA, AUGUSTO REYES, and BAILEY RADIO CAR & LIMOUSINE CORP., Defendants.

2013 NY Slip Op 33988(U)

VICTOR A. SANTANA, Plaintiff, v. PASCUAL OZUNA, AUGUSTO REYES,and BAILEY RADIO CAR & LIMOUSINE CORP., Defendants.

Index No.: 308326/10

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX TRIAL TERM - PART 15

FILED: June 20, 2013

June 11, 2013

Present: Hon. Mary Ann Brigantti-Hughes

DECISION/ORDER

The following papers numbered 1 to 8 read on the below motion noticed on October 15, 2012 and duly submitted on the Part IA15 Motion calendar of March 21, 2013:

Papers Submitted

Numbered

Defs' Affirmation in support of motion, exhibits

1,2

Pl.'s cross-motion, exhibits

3,4

Defs.' Affirmation in reply, exhibits

5,6

Def.'s Affirmation in opposition

7

Pl.'s Aff. In Reply

8

In an action arising out of an alleged motor vehicle accident, defendants Pascual Ozuna and Augusto Reyes (collectively "Defendants") move for summary judgment, dismissing the complaint of the plaintiff Victor Santana ("Plaintiff") for failing to satisfy the "serious injury" threshold requirement of New York Insurance Law §5102(d), Plaintiff opposes the motion and cross-moves for summary judgment against Defendants on the issue of liability.

I. Background

This matter arose from an alleged motor vehicle accident that occurred on May 20, 2010. At deposition, Plaintiff testified that he was stopped on the southbound Cross-Bronx Expressway near the Jerome Avenue exit when his vehicle was struck in the rear-passenger side by Defendants' vehicle.

According to his verified bill of particulars, as a result of this accident, Plaintiff sustained, among other injuries, broad-based posterior cervical disc herniations at C4-C5 and C5-C6, and a parasagittal left-sided posterior herniation at L4-L5. At his examination before trial, Plaintiff testified that he was confined to his home for two weeks following the accident, and confined to his bed for approximately 1 ½ weeks.

Defendants now move for summary judgment, asserting that Plaintiff cannot meet the "serious injury" threshold requirement of New York Insurance Law §5102(d).

II. Standard of Review

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers." (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. (Muniz v. Bacchus, 282 A.D.2d 387 [1st Dept. 2001]). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. (Reuben Israelson v. Sidney Rubin, 20 A.D.2d 668 [2nd Dept. 1964]; Erin Federico v. City of Mechanicville, 141 A.D.2d 1002 [3rd Dept. 1988]).

Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. (Knepka v. Tallman, 278 A.D.2d 811 [4th Dept. 2000]).

If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 N.Y.2d 738,[1993]; Bronx County Public Adm'r v. New York City Housing Authority, 182 A.D.2d 517 [1st Dept. 1992]).

III. Applicable Law and Analysis

1. Defendants' Serious Injury Motion

Where a plaintiff is claiming serious injury arising from "permanent consequential limitation of use of a body organ, member, function or system" or "significant limitation of use of a body function or system" the determination of whether the limitation is "significant" or "consequential" relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose, and use of the body part. Pommells v. Perez, 4 N.Y.3d 566 (2005); Toure v. Avis Rent-A-Car Systems, Inc., 98 N.Y.2d 345 (2002). Thus, to establish a claim under either of these categories, a plaintiff must submit medical proof containing objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitation to the normal function, purpose, and use of the affected body organ, member, function or system. Toure, supra. See also Guzman v. Paul Michael Management, 266 A.D.2d 508 (2^nd Dept. 1999). Expert medical evidence in the form of physician assessments must be supported by objective medical evidence such as MRI reports, CT scan reports and observations during examination. Toure, supra.

When a defendant seeks summary judgment alleging that a plaintiff does not meet the threshold required to maintain a lawsuit, the burden is on the defendant to first establish that plaintiff's injuries are not serious. Franchini v. Plameri, 1 N.Y.3d 536 (2003); Brown v. Achy, 9 A.D.3d 30 (1^st Dept. 2004). To meet their burden, defendants' medical evidence must not be conclusory and must be based on objective testing. See Nix v. Xiang, 19 A.D.3d 227 (1^st Dept. 2005). With regard to range-of-motion issues, defendant's medical doctor is required to specify the degree of plaintiff's range of motion and what constitutes normal range of motion. Webb v. Johnson, 13 A.D.3d 54 (1^st Dept. 2004). Where defendant's medical expert finds restricted range-of-motion, and a doctor believes they are self-imposed, the doctor must explain the reasons for the restricted range of motion and why the same are not related to the accident. Style v. Joseph, 32 A.D.3d 212 (1^st Dept. 2006).

Once defendant meets the burden of prima facie entitlement to summary judgment, suchrelief is warranted unless plaintiff can establish the existence of a serious injury through competent evidence. Plaintiff must, of course, establish that the injuries alleged were the result of the accident claimed and that the limitations alleged are the result of those injuries. Noble v. Ackerman, 252 A.D.2d 392 (1^st Dept. 1998). Plaintiff's evidence must be objective, contemporaneous with the accident, showing qualitative evidence of what restrictions, if any, plaintiff was afflicted with. Blackmon v. Dinstuhl, 27 A.D.3d 241 (1^st Dept. 2006). A medical expert's opinion establishing a serious injury which is based solely on plaintiff's subjective complaints will not be credited and will not preclude summary judgment in favor of defendant. Zoldas v. Louise Cab Corporation, 108 A.D.2d 378 (1985). In order to be sufficient to establish a prima facie case of serious injury, the medical affirmation or affidavit proffered 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. Bent v. Jackson, 15 A.D.2d 46 (1^st Dept. 2005); Thompson v. Abassi, 15 A.D.3d 95 (1^st Dept. 2005).

If a defendant fails to carry the burden of rebutting prima facie a plaintiff's serious injury claim, the sufficiency of a plaintiff's opposition papers need not be considered. See Pommells v. Perez, 4 N.Y.3d 566 (2005), see also Tchjevskaia v. Chase, 15 A.D.3d 389 (2^nd Dept. 2005)(plaintiff's opposition papers need not be considered where, despite its ultimate conclusion that plaintiff did not sustain serious injury, affidavit of defendant's examining orthopedist disclosed recorded limitations of plaintiff's range of motion).

Assuming the Court has competent, admissible, but conflicting medical evidence and or affidavits on the issue of serious injury, summary judgment is usually not warranted. Cassagnol v. Williamsburg Plaza Taxi, 234 A.D.2d 208 (1st Dept. 1996). Conflicting medical evidence on the issue of the permanency and significance of a plaintiff's injuries warrant denial of summary judgment. Noble v. Ackerman, 252 A.D.2d 392 (1st Dept. 1998). A physician's affirmed statement, which is the equivalent of a sworn statement, is competent evidence, CPLR 2106. Further, the First Department has held that unsworn MRI reports, nerve conduction studies and other unsworn medical reports are properly before the court when they are specifically referred to in a physician's affirmation or chiropractor's affidavit. Byong Yol Yi v. Canela, 70 A.D.3d 584 (1^st Dept. 2010).

Defendants' Submissions

On March 14, 2012, Plaintiff submitted to an independent medical examination performed by an orthopedist Dr. Robert Israel. In his sworn report, Dr. Israel states that he reviewed Plaintiff's medical records, including MRI film of the right shoulder, left knee, and spine. Using a goiniometer, Dr. Israel conducted range-of-motion tests of Plaintiff's cervical, lumbar spine, right shoulder, and right knee and found no limitations. Under "impressions," Dr. Israel found that Plaintiff had "resolved" sprains of the cervical and lumbar spine, right shoulder and right knee. He opined that Plaintiff was not disabiled as a result of this accident and is capable of full work activities. On March 8, 2012, Plaintiff submitted to an independent medical examination performed by a neurologist, Dr. Daniel Feuer. Dr. Feuer submits a sworn report, where he also conducted range-of-motion examination of Plaintiff and found no restrictions. All other objective examinations were either negative or normal. Based on a reasonable degree of clinical certainty, Dr. Feuer opined that Plaintiff does not have any objective neurological disability or neurological permanency.

Plaintiff's Opposition

Plaintiff opposes the motion, and cross-moves for summary...