The following paper read on this motion: Notice of Motion... Affmation in Opposition... Upon the foregoing papers, the motion by defendant, Atanase

Transcription

1 SHORT FORM ORDER SUPREiViE COURT - STATE OF NEW YORK Present: HON. JOSEPH COVELLO Justice JONATHAN FEINGOLD, -against- Plaintiff, TRIAL/LAS, PART 28 NASSAU COUNTY Index #: /00 Motion Seq. No.:002, ATANASE GARTU, Defendant. Motion Date: 09/02/03 XX< The following paper read on this motion: Notice of Motion Affmation in Opposition Upon the foregoing papers, the motion by defendant, Atanase 1 2, pursuant to CPLR $2221(e)2,3, for leave to renew the motion for summary judgment and upon renewal granting the defendant s motion for summary judgment pursuant to CPLR $9 321 l(a)(2) and 321 l(a)(7) d ismissing plaintiff, Jonathan Feingold s complaint on the ground that the injuries claimed do not satisfy the serious injury threshold requirement of Insurance Law $5 102(d) is determined as follows. By Order of this Court dated May 13,2003, defendant, Atanase s motion for summary judgment dismissing the plaintiffs complaint on the grounds that he did not suffer a serious injury within the meaning of Insurance Law (d), was denied due to the defendant s failure to submit evidence in admissible form establishing that the plaintiff did not sustain a serious injury. Defendant on this motion to renew, now annexes the original affirmed report of

2 Dr. Frank M. Hudak, Orthopedist, dated July 16,2002, together with an affirmation dated June 13,2003 attesting to his original affirmation. In addition, defendant annexes to this motion the original affirmation of Dr. Ira M. Turner, Neurologist, dated July 16,2002 and an affmation dated June 23,2003 attesting to his original affirmation. Defendant further sets forth that the failure to provide the doctors original affirmations (as opposed to copies) with the initial motion was due to an inadvertent clerical error. Accordingly, the defendant, s motion for leave to renew is granted as the defendant has now provided the doctors affirmations in admissible form and a reasonable excuse for the failure to provide them with the original motion. Upon granting renewal the motion by defendant, Atanase, for summary judgment dismissing the complaint on the grounds that plaintiff, Jonathan Feingold, did not sustain a serious injury within the meaning of Insurance Law $5 102(d) is granted. In this action, plaintiff seeks damages for injuries he allegedly sustained on September 30, 1999, in a motor vehicle accident with defendant. According to his bill of particulars, plaintiff sustained injuries including the following: Intracranial injury with coma; Concussion with brief loss of consciousness; Lumbrosacral sprain / strain; Cervical sprain / strain; In addition the plaintiff in his supplemental bill of particulars alleges he also sustained the following injuries: History of cerebral concussion; 2

3 Lacerations to the left leg; Paresthesias to both upper extremities; At his deposition the plaintiff testified that he missed 17 days from work as a result of the accident and that he had an MRI after a prior automobile accident in 1997, wherein it showed he had bulges in his neck. In support of the motion for summary judgment dismissing the complaint on the grounds that plaintiff failed to sustain a serious injury, defendant now submits the properly affirmed original reports from Dr. Hudak, Orthopedist and Dr. Turner, Neurologist. Dr. Hudak, sets forth that [tlhe claimant at the present time, has continued subjective complaints in the area of the neck to mid back with no objective findings to confirm disability, or permanency regarding the accident of g/30/99. The claimant is noted to have a prior motor vehicle accident in 1997 with a past history of having cervical bulges for three years prior to this accident. Dr. Turner sets forth in his report status post cerebral concussion by history. Normal neurological examination. There is no objective evidence at this time of any permanent neurological injury sustained as a result of the reported accident of g/30/99. Disability: none. Based upon the afore-noted evidence the defendant has sufficiently established a prima facie case that plaintiffs injuries are not serious within the meaning of Insurance Law $5 102(d). The burden thereby shifts to plaintiff to come forward with some evidence of a serious injury in order to survive the motion ( Gaddy v Eyelet-, 79 NY2d 955,957). 3

4 The plaintiff in opposition to the motion has submitted the affmed report of Dr. Irving Etkind, dated April 28,2003 and the affmed MRI report of Dr. Howard C. Williams, dated January 29,2003. In Dr. Williams report, he sets forth as his impression of plaintiffs cervical spine as mild disc annular bulging C6/7 without spinal stenosis. In his report Dr. Etkind sets forth that he examined the plaintiff on only two occasions the first being on January 16,200 1 (more than fifteen months post accident and the second time being on February 13,2003 (just after the original return date of defendant s initial motion) to provide an objective independent medical examination of the plaintiff regarding his injuries from the accident on September 30, Dr. Etkind never states that he treated the plaintiff, or what course of treatment if any plaintiff received. Dr. Etkind also does not set forth or annex the csworn medical records he indicates in his report that he reviewed and relied upon in forming his diagnosis (other than the MlU report). Dr. Etkind also does not set forth what objective medical tests he performed, or what were the restrictions he on either of the dates he examined plaintiff. foundin plaintiffs cervical range of motion Dr. Etkind also does not indicate that he was aware of plaintiff s.prior motor vehicle accident in 1997 and his past history of having cervical bulges for approximately three years prior to the subject accident. Under these circumstances, Dr. Etkind s conclusions that the plaintiff permanent limitations of his spine causally related to the subject accident are speculative (see, Ginty v MacNamara, 300 AD2d 624) and are not supported by any objective evidence whatsoever (see Toure v Avis Rent A Car Sys, 98 NY2d 345,358). 4 Accordingly, the

5 plaintiff has failed to raise a triable issue of fact to survive defendant s motion (Grossman v Wright, 268 AD2d 79). Therefore, upon renewal defendant, s motion for summary judgment dismissing the complaint on the grounds that plaintiff, Jonathan Feingold did not suffer a serious injury within the meaning of Insurance Law $5 102(d) is granted. This constitutes the decision and order of the court. Dated: October 27,2003 Covello J.S.C. 5