Vignola v. Varrichio

• Decision Date: 06 October 1997
• Parties: , 1997 N.Y. Slip Op. 8155 Rocco VIGNOLA, Jr., et al., Respondents, v. Philip VARRICHIO, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 831

662 N.Y.S.2d 831

243 A.D.2d 464, 1997 N.Y. Slip Op. 8155

Rocco VIGNOLA, Jr., et al., Respondents, v. Philip VARRICHIO, et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

Oct. 6, 1997.

James J. Thornton (Sweetbaum & Sweetbaum, Marshall D. Sweetbaum, Lake Success, of counsel), for appellants.

Frank X. Kilgannon, Mineola, for respondents.

Before BRACKEN, J.P., and O'BRIEN, SANTUCCI, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Bucaria, J.), entered September 27, 1996, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Rocco Vignola, Jr., 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, the motion is granted, and the complaint is dismissed.

Initially, we note that "it is well settled that a moving defendant may rely upon the unsworn reports of the plaintiff's own physicians in support of a motion for summary judgment" (Torres v. Micheletti, 208 A.D.2d 519, 519-520, 616 N.Y.S.2d 1006; see also, Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692). The proof submitted by the defendants in support of their motion for summary judgment established that the plaintiff Rocco Vignola, Jr., did not suffer a "serious injury" as that term is defined in Insurance Law § 5102(d).

The unsworn report of Mr. Vignola's treating chiropractor failed to set forth any objective quantified evidence of the extent or degree of any limitation occasioned by that plaintiff's alleged injuries. The report of Mr. Vignola's orthopedist stated only that it was his "impression" that Mr. Vignola suffered a torn medial meniscus of the left knee. Moreover, there is no proof that a Magnetic Resonance Imaging (MRI) diagnostic test was ever performed to confirm this impression or that Mr. Vignola underwent arthroscopic surgery to correct the alleged condition (see generally, Becker v. Coiro, 222 A.D.2d 543, 634 N.Y.S.2d 770). Furthermore, although the report of the defendants' physician stated that Mr. Vignola "appeared to lack 10 to 15 degrees of terminal elevation" in his left shoulder, the report went on to state that Mr. Vignola had "full abduction" and "full extension". Indeed, the report concluded that Mr. Vignola "ha[d] no objective signs of ongoing disability as a result of [the] accident".

In light of this proof, the burden thus shifted to the plaintiffs to demonstrate the existence of a triable issue of fact (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176). However, the plaintiffs failed to meet this burden with the submission of an affidavit from Mr. Vignola's chiropractor which merely consisted of conclusory assertions tailored to meet statutory requirements (see, Almonacid v. Meltzer, 222 A.D.2d 631, 635 N.Y.S.2d 690; Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 627 N.Y.S.2d 765; Barrett v. Howland, 202 A.D.2d 383, 608 N.Y.S.2d 681; Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692). Accordingly, the defendants were entitled to summary judgment.

BRACKEN, J.P., and O'BRIEN, SANTUCCI and FRIEDMANN, JJ., concur.

GOLDSTEIN, Justice, dissents and votes to affirm the order appealed from, with the following memorandum:

In support of their motion for summary judgment, the defendants submitted, inter alia, (1) an unsworn report from the injured plaintiff's chiropractor confirming a diagnosis of "cervical radiculitis", "rotator cuff syndrome", and a "left knee problem" warranting orthopedic examination, (2) an affirmation of their own physician, who examined Mr. Vignola nearly three years after the accident, stating that, although Mr. Vignola had "full abduction" and "full extension" with pain, Mr. Vignola "appeared to lack 10 to 15 degrees of terminal elevation" in his left shoulder, and external rotation was "- 10 degrees compared to the other side", and (3) an unsworn report from Mr. Vignola's orthopedist, diagnosing his problem as "[l]eft shoulder impingement; left knee, torn medial meniscus" and recommending left knee arthroscopy based, inter alia, upon a "positive Jobe's test and adduction test" and a "positive Apley grind".

As this court noted in Torres v. Micheletti, 208 A.D.2d 519, 519-520, 616 N.Y.S.2d 1006:

"Although it is well settled that a moving defendant may rely upon the unsworn reports of the plaintiff's own physicians in support of a motion for summary judgment (see, Hochlerin v. Tolins, 186 A.D.2d 538 ; Pagano v. Kingsbury, 182 A.D.2d 268 ), the reports relied upon here fail to demonstrate that the plaintiff had not suffered a serious injury (see, Jackson v. United Parcel Serv., 204 A.D.2d 605 ; Orsenigo v. Burnstein, 202 A.D.2d 561 ; see also, Brown v. Stark, 205 A.D.2d 725 ). Accordingly, the evidence submitted in support of the motion was insufficient to establish the defendants' entitlement to judgment as a matter of law (see, Hochlerin v. Tolins, supra; Pagano v. Kingsbury, supra)".

The description of Mr. Vignola's injuries contained in the defendants' motion papers, which included a diagnosis based upon objective tests, a recommendation of arthroscopic surgery based upon that diagnosis, and a quantified limitation of motion in Mr. Vignola's left shoulder, raised questions of fact as to whether those injuries constituted "serious injury" within the meaning of Insurance Law § 5102(d) (see, Stark v. Amadio, 239 A.D.2d 569, 658 N.Y.S.2d 991; Sabella v. McKain, 239 A.D.2d 333, 657 N.Y.S.2d 1012; Fogliani v. Salvato, 205 A.D.2d 581, 613 N.Y.S.2d 415; DeAngelo v. Fidel Corp. Servs., 171 A.D.2d 588, 567 N.Y.S.2d 454).

The orthopedist's description of his observations as both a "diagnosis" and an "impression" does not render the diagnosis any less reliable. The term "diagnostic impression" is a term of art for a physician's opinion: diagnostic impressions are clearly admissible in a...