Plaintiffs, Defendant. Defendant s motion for summary judgment pursuant to CPLR 3212 dismissing the

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1 -against- SUPREME COURT Present: HON. DAN&L PALMIERI Acting Justice Supreme Court _ ~ BABETTE NAPOLITANO-ROSENBLOOM and LARRY ROSENBLOOM, - STATE OF-NEW YORK Plaintiffs, TRIAL PART: 34 NASSAU COUNTY INDEX NO: ANGELINE VANDOFF, Defendant. MOTION DATE: MOTION SEQ. NO: 001 The following papers having been read on this motion:. Notice of Motion, dated Affkmation in Opposition, dated Reply Affirmation, dated Defendant s motion for summary judgment pursuant to CPLR 3212 dismissing the complaint based on the failure of the plaintiff, Babette Napolitano-Rosenbloom, to have sustained a serious injury under Insurance Law , is granted and the complaint, including the derivative action, is dismissed. This action arose as a result of a motor vehicle accident which occurred on June 4, 1998, in Oceanside, New York, from which the plaintiff has alleged to have sustained serious injuries. Defendant alleges that plaintiff has failed to establish a serious injury as defined by the Insurance Law (d) and as such has no cause of action under the New York Insurance Law Section (a). As a result, they argue this action must be dismissed. Although the defendant filed for bankruptcy and the submission of this motion was delayed, the parties have agreed by written stipulation that this motion may now be entertained by this Court.

2 On a motion for summa-ry judgment the movant must establish his orlier cause of action or defense sufficient to warrant a court directing judgment in its favor as a matter of law. Junco v. Ranzi, 288 ADd2d 440 (2nd Dept., 2001); Frank Corp. V. Federal Ins. Co., 70 NY2d 966 (1988); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Rebecchi v. Whitmore, 172 AD2d 600, (2nd Dept. 1991). The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact (Frank Corp. v. Federal Ins. Co., supra, at 967, GTF MMg. v. Colonial Aluminum Sales, 66 NY2d 965 (1985), Rebecchi v. Whitmore, supra at 601. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see, Frank Corp. v. Federal Ins. Co., supra). Further to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. -The burden on the Court deciding this type of motion is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist [see, Barr v. County of Albany, 50 NY2d 247 (1980); Daliendo v. Johnson, 147 AD2d 312,317 (2nd Dept. 1989)]. In addressing the serious injury issue as defined by the New York State Insurance Law 55102(d), the Court first looks at the plaintiff s pleadings. There is some dispute as to whether a bill of particulars has been served, a supplemental bill attached to the opposing papers alleges avulsion fracture L-4, rotator cuff injury to left shoulder and related sequelae. The 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 eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Junco v. Ranzi, supra; Winegrad v. New? York Univ. Med. Center, 64 NY2d 851, 853 (1985). 2

3 Serious injury as defined by $5102(d) of the New York State Insurance Law means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus;~permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. Defendant argues that plaintiffs did not sustain a serious injury as defined by any section of the statute. Defendant has attached to her moving papers three reports of plaintiffs examining physicians, Dr. Condon, dated February 17, 1999, Dr. Lehmuller, dated July 29, 1999 and a radiology report of the left shoulder by Drs. Belman, Zwanger and Pesiri, dated January 21, Although these reports are neither affirmed nor sworn, a defendant may rely on a plaintiffs unsworn medical records to establish lack of serious injury. Taccetta v. Scotto, 287 AD2d 707 (2nd Dept. 2001). However, any additional evidence which either party seeks to rely upon must be in admissible form. 1992). Pagan0 v. Kingsbury, 182 AD2d 268 (2nd Dept. Plaintiff has submitted in opposition to the motion, an affidavit and report of Dr. David Benatar, who examined the plaintiff in April 2003 in connection with this motion. Dr. Benator relies on the reports and records of Drs. Condon, Lehmuller and the radiologist, which is appropriate because defendant has submitted them and on additional reports from other health care providers which have not been submitted by either party. The medical evidence relied upon by Dr. Benator, which has not been submitted by defendant and which is not sworn or affirmed, is not competent evidence and may not be considered. Sandt v. New York Racing Association Inc., 289 AD2d 218 (2nd Dept. 2001). 3

4 In a motion for summary judgment seeking to dismiss, the defendant-isrequired to establish a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law (d). Gaddy v. Eyler, 79 NY2d 955 (1992). Upon such a showing, it becomes incumbent on the plaintiff to come forward with sufficient evidence in admissible form to demonstrate the existence of a question of fact on the issue. Gaddy, supra. The Court must then decide whether plaintiff established a prima facie case of sustaining a serious injury. Licari v. Elliott, 57 NY2d 230 (1983). In the instant case, the submission by the defendant in support of the motion for summary judgment made out a prima facie case that the plaintiff did not sustain serious injury within the meaning of Insurance Law (d), cf. Junco v. Ranzi, supra; Monette v. Keller, 281AD2d 523 (2nd Dept. 2001), Dugan v. Sprung, 280 AD2d 736 (3rd Dept. 2001), Napoli v. Cunningham, 273 AD2d (Pd Dept. 2000), Delinda v. Coronamos Cab Corp, 244 AD2d 397 (2nd Dept. 1997). The submission in support of the motion establishes a prima facie case that the injured plaintiff has not sustained a serious injury within the meaning of Insurance Law (d), cf. Gamberg v. Romeo, 289 AD2d 525 (2nd Dept. 2001); Napoli v. Cunningham, supra, thus shifting the burden to the plaintiff to rebut the movant s case by submitting proof in evidentiary form showing the existence of triable issues of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980); Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 (1979). The medical evidence proffered in this case fails to support the plaintiffs burden, the mere parroting of language tailored to meet statutory requirements is insufficient. Grossman v. Wright, 268 AD2d 79 (2nd Dept. 2000). Plaintiff has proffered no medical testimony to support a finding that she suffered 4

5 a permanent loss of use of a body part or function because there is no evident of a total loss of use which is necessary to come within this category of serious injury. Oberly v. Bangs Ambulance, 96 NY2d 295 (2001), Mikl v. Shufelt, 285 AD2d 949 (3rd Dept. 2001). Plaintiff has also failed to provide the necessary proof of a significant limitation of use of a body function or system or a permanent consequential limitation of use of a body organ or member, June v. Gonet, 298 AD2d 811 (3rd Dept. 2002), Grossman v. Wright, supra, Toure v. Avis Rent A Car Systems Inc., 98 NY2d 345 (2002). Having addressed plaintiff s claimed injury, it was incumbent upon the plaintiff to come forward with competent objective medical proof of serious injury within the meaning of the no-fault statute to raise ~ an issue of fact. It is not disputed that the left shoulder is normal. Dr. Benatar seems to have performed one examination in March He does not report what objective medical tests he performed or their findings, either in a quantitative or a qualitative manner. Toure supra at Moreover, there has been no explanation offered for what appears to be a significant multi year gap in plaintiffs treatment Ginty (2nd Dept. 2002). v. McNamara, 300 AD2d 624 While plaintiff has alleged that she sustained an avulsion fracture and an avulsion fracture may constitute a serious injury, Keevins v. Drobbin, 303 AD2d 463 (2nd Dept. 2003), neither Drs. Condon and Lehmuller nor the radiologist make any reference to such an injury and Dr. Benator merely notes a possible small fracture on x-rays taken in July 1999 and December 1999, approximately one to one and one half years post accident. Dr. Benator does not address the significance of this finding or causally connect it to the accident. See also Pierre v. Nanton, 279 AD2d 621 (2nd Dept. 2001). Dr. Benatar s range of motion tests, although showing significant decreases were 5

6 performed nearly six years after the accident and cannot be compared to anytests taken immediately, post accident. Hence, it is speculation to suggest that the cause of the recent range of motion limitations was the 1998 accident. Plaintiff has failed to meet her burden, the motion is granted and the complaint is dismissed. This constitutes the Decision and Order of this Court. ENTE R DATED: JULY 21, 2003 Acting J.S.C. TO: ROBERT J. CAVA, ESQ. Attorneys for Defendant 1038 Little East Neck Rd. West Babylon, NY LAWRENCE B. NEWMAN, ESQ. Attorneys for Plaintiffs 420 Lexington Ave. New York, NY