Scheker v. Brown

• Decision Date: 17 January 2012
• Citation: 2012 N.Y. Slip Op. 00355,936 N.Y.S.2d 283,91 A.D.3d 751
• Parties: Denia SCHEKER, et al., respondents, v. Viviene BROWN, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00355

91 A.D.3d 751

936 N.Y.S.2d 283

Denia SCHEKER, et al., respondents,

v.Viviene BROWN, appellant.

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

Jan. 17, 2012.

Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), for appellant.

Day & Associates, P.C., Great Neck, N.Y. (Eric S. Hack of counsel), for respondents.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and JOHN M. LEVENTHAL, JJ.

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), entered May 19, 2011, as denied her motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted on behalf of the plaintiff Beverly Guerrero on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

On August 24, 2007, the plaintiff Denia Scheker was operating a motor vehicle in which the infant plaintiff Beverly Guerrero was a passenger. The plaintiffs allegedly were injured when their vehicle was involved in an accident with a vehicle owned and operated by the defendant. In the order appealed from, the Supreme Court, inter alia, denied the defendant's motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d). The defendant appeals. We modify.

The defendant met her prima facie burden of showing that neither of the plaintiffs sustained 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, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

In opposition to the defendant's prima facie showing, as to Guerrero, the plaintiffs relied, inter alia, upon the medical report of Dr. Lev Aminov, dated September 4, 2007, as well as his treatment notes, which were insufficient to raise a triable issue of fact because they were unaffirmed and, therefore, in inadmissible form ( see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76; Lively v. Fernandez, 85 A.D.3d 981, 925 N.Y.S.2d 650; Pierson v. Edwards, 77 A.D.3d 642, 909 N.Y.S.2d 726; Vasquez v. John Doe # 1, 73 A.D.3d 1033, 905 N.Y.S.2d 188). The only other medical submission proffered by the plaintiffs in opposition to the defendant's motion as to Guerrero was the affirmed report of Dr. Robert Solomon, concerning a magnetic resonance imaging scan of Guerrero's cervical spine. This report, while in admissible form, merely revealed evidence of disc bulges from C3–4 through C6–7. The mere existence of a bulging disc, in the absence of objective evidence as to the extent of the alleged physical limitations resulting from...