Thompson v. Abbasi

• Decision Date: 04 January 2005
• Docket Number: 4505.
• Citation: 788 N.Y.S.2d 48,15 A.D.3d 95,2005 NY Slip Op 00024
• Parties: SAMUEL THOMPSON, Appellant, v. NAIMATULLAH ABBASI, Defendant, and N&A TAXI, Respondent.
• Court: New York Supreme Court — Appellate Division

15 A.D.3d 95

788 N.Y.S.2d 48

2005 NY Slip Op 00024

SAMUEL THOMPSON, Appellant, v. NAIMATULLAH ABBASI, Defendant, and N&A TAXI, Respondent.

4505.

Appellate Division of the Supreme Court of the State of New York, First Department.

January 4, 2005.

Appeal from an order of the Supreme Court, Bronx County (Betty Owen Stinson, J.), entered July 9, 2003. The order granted the motion of defendant-respondent for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury.

Law Office of Daniel Chavez, Bronx (Lawrence B. Lame of counsel), for appellant.

Gerber & Gerber, LLP, Brooklyn (Thomas Torto and Jason Levine of counsel), for respondent.

OPINION OF THE COURT

MARLOW, J.

In the context of this appeal, we engage in the perennial debate over the issue of whether a plaintiff's evidence of personal injury meets the statutory threshold set by Insurance Law § 5102 (d), "an elusive standard that all too frequently escapes facile and final resolution" (Brown v Achy, 9 AD3d 30, 31 [2004]). Consequently, we respectfully and simply urge that the "serious injury" threshold be the subject of High Court interpretation or statutory reform aimed at drawing a brighter line between those cases where a plaintiff's injuries are truly and verifiably "serious" within the meaning and intent of section 5102 (d), and those which are neither. One need only examine the scores of repetitive judicial and legal debates on this issue to conclude reasonably and quickly that the status quo is a diversion of precious court resources which is correctable in the interests of fairness, justice and efficiency.

Defendant N&A Taxi established a prima facie entitlement to summary judgment by submitting evidence demonstrating that plaintiff did not sustain a serious injury arising from a car accident involving the parties (see Insurance Law § 5102 [d]; Licari v Elliott, 57 NY2d 230 [1982]). Specifically, N&A submitted affirmed reports of two medical doctors who, upon examining plaintiff, concluded that, although there were positive MRI findings of plaintiff's cervical spine, plaintiff had normal range of motion in his cervical spine as well as his lumbosacral spine and wrists (see Noble v Ackerman, 252 AD2d 392 [1998] [existence of herniated disc does not per se constitute serious injury]). In addition, N&A submitted plaintiff's bill of particulars (see Dan v Luke, 237 AD2d 165 [1997]), which indicates that plaintiff missed only one week of work following the accident. N&A thus met its initial burden that plaintiff did not sustain an injury which prevented him from performing substantially all his customary activities during 90 of the first 180 days following the accident.

The burden then shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law (see Gaddy v Eyler, 79 NY2d 955 [1992]). Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint (see Licari v Elliott, 57 NY2d 230 [1982], supra). Plaintiff has not met his burden. Accordingly, we affirm the motion court's dismissal of the complaint.

Initially, we note that the motion court erred in rejecting plaintiff's unsworn MRI reports submitted in opposition to the dismissal motion. N&A had presented plaintiff's MRI results through its experts' affirmations in support of its motion for summary judgment. Therefore, these results were properly before the motion court (see Brown v Achy, 9 AD3d 30 [2004], supra; Gonzalez v Vasquez, 301 AD2d 438 [2003]; see also Ayzen v Melendez, 299 AD2d 381 [2002]; Pietrocola v Battibulli, 238 AD2d 864 [1997]). Moreover, plaintiff's doctor averred that he personally reviewed the film and reports (see Dioguardi v Weiner, 288 AD2d 253 [2001]; Lesser v Smart Cab Corp., 283 AD2d 273 [2001]; cf. Sherlock v Smith, 273 AD2d 95 [2000]).

Notwithstanding that plaintiff's MRI reports were properly reviewable on summary judgment, positive MRI findings alone are insufficient to raise an issue of fact (see Noble v Ackerman, 252 AD2d 392 [1998], supra). In order to raise a triable issue of fact, plaintiff must demonstrate a limitation of range of motion sustained by objective medical findings that are "based on a recent examination of the plaintiff" (Grossman v Wright, 268 AD2d 79, 84 [2000]; cf. Verderosa v Simonelli, 260 AD2d 293 [1999] [doctor's opinion of significant limitations based upon recent personal examination of plaintiff]). Other than an initial evaluation of plaintiff on December 3, 1999, eight days after the accident, by a neurologist referred to plaintiff by his chiropractor, a follow-up visit 2 ½ years later, the MRIs of plaintiff's cervical spine and left wrist, and plaintiff's own allegation in his affidavit that he "attended physical therapy" for about five months, the record is devoid of any competent evidence of plaintiff's treatment, need for treatment, or why his alleged treatment ended after five months.

The neurologist, Dr. Gutstein of Neuro Care Associates, P.C., averred that he conducted an examination of plaintiff on December 3, 1999. However, plaintiff stated that Dr. Velasquez of Neuro Care Associates, P.C., conducted the initial examination and evaluation. In any event, regardless of who performed the initial examination, plaintiff's submissions are insufficient to raise a triable issue of fact. Dr. Gutstein averred that he performed a straight-leg raising test in which plaintiff demonstrated a 70% restriction of range of motion on the left side. However, plaintiff submitted no MRI results of his lumbar spine. Moreover, upon re-evaluation 2 ½ years later, on July 5, 2002, Dr. Gutstein performed no straight-leg raising tests or any other tests relating to plaintiff's lumbar spine, nor did the doctor conclude that plaintiff sustained any back injury as a result of the subject car accident. Therefore, plaintiff has failed to set forth any objective medical finding based upon a recent examination which raises a triable issue of fact regarding a serious injury, i.e., significant or permanent, to his back (see Grossman, 268 AD2d at 84, supra).

In light of plaintiff's otherwise lack of proof in this regard, we need not reach the question whether, in the wake of Toure v Avis Rent A Car Sys. (98 NY2d 345 [2002]), straight-leg raising tests alone can ever constitute objective evidence of serious injury (see Brown, 9 AD3d at 33 [Court need not reach issue whether straight-leg raising tests alone would be sufficient under Toure, and whether our own past decisions (see e.g. Aguilar v N.Y.C. Water Works, 298 AD2d 245 [2002]; Adetunji v U-Haul Co. of Wis., 250 AD2d 483 [1998]) are consistent with Toure's reasoning]).

In addition to this deficiency in proof, at the initial examination Dr. Gutstein failed to report any range-of-motion restrictions regarding plaintiff's cervical spine. Thus, despite the positive MRI findings as to plaintiff's cervical spine two months after the accident, there are no objective findings contemporaneous with the accident showing any initial range-of-motion restrictions on plaintiff's cervical spine (see Pajda v Pedone, 303 AD2d 729 [2003]) or any detailed explanation for their omission. Consequently, there is a failure of proof relating to the subsequent range-of-motion restrictions in the cervical spine 2 ½ years after the accident.

The dissent's assertion that we require plaintiff to undergo immediate objective examinations in all cases in order to successfully carry the burden to prove a serious injury, misses the key fact that this plaintiff waited over 2 ½ years to uncover evidence of the limitations to his neck which he now claims meets the threshold. The proof gives us no way to determine that the July 2002 alleged limitation was occasioned by the November 1999 accident, as there is no proof of what plaintiff's post-accident limitations were, if any. By "post-accident" we mean limitations suffered within a reasonable time after the accident under all the relevant circumstances. Dr. Gutstein's conclusory assertion, more than 2½ years after the accident, that "it is my opinion that the motor vehicle accident of November [25], 1999 was a competent producing cause of these injuries," without any detail, rationale, or reasonable explanation, cannot serve to supply what plaintiff's objective proof clearly lacks. On this particular record it appears obvious to us that it is general and boilerplate language tailored simply to meet decisional and/or statutory requirements (see Lopez v Senatore, 65 NY2d 1017 [1985]).

The record is also devoid of any competent evidence of plaintiff's treatment, other than two visits to a neurologist 2 ½ years apart, which appear to be for examination only. We have held that a gap in treatment goes to the weight of the evidence, not its admissibility (see Brown, 9 AD3d at 33). Here, however, there is not just a gap in treatment, but, apparently, a total lack of competent proof of any treatment whatsoever. While plaintiff himself refers to a visit to his chiropractor the day after the accident, a visit to an orthopedic surgeon, and a five-month course of physical therapy between November 1999 and April 2000, he inexplicably has provided no competent supporting documentation of this "medical treatment," as required by Friends of Animals v Associated Fur Mfrs. (46 NY2d 1065 [1979]). By way of explanation, plaintiff himself claimed his chiropractor advised him that he attained the maximum potential in terms of therapy, which provided only temporary relief. However, plaintiff's reliance on his chiropractor's claimed assertion is rank hearsay and therefore insufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). In addition, plaintiff's self-serving explanation that he stopped going to physical therapy because it provided only temporary relief is "entitled to little weight, and [is]...