SABRIA JEAN BAPTISTE,

Transcription

1 Present: SABRIA JEAN BAPTISTE, SUPREME COURT - STATE OF NEW YORK HON. TAMMY S. ROBBINS Plaintiff Acting Justice TRIAL/lAS, PART 47 NASSAU COUNTY -against - INDEX NO /05 MOTION SEQ. NO. 002 MOTION SUBMIT: 9/22/06 TONY TERRLL WEEKS, HOPELAND FARMS and JOHN DOE TRAILER COMPANY Defendants. The motion brought by the Defendants, Tony Terrell Weeks and Hopeland Fars, in the above captioned action, for an order of this Cour, pursuant to Rule 3212 of the CPLR and Insurance Law Sections 5102 and 5104, granting summar judgment in favor of these moving Defendants is denied. The instant action arises out of an automobile accident that occured on May 25, 2004, at approximately 2:30 p.m. on the westbound Cross Bronx Expressway near Rosedale Avenue in the County of Bronx, City and State of New York. At the aforesaid time, date and place, the Plaintiff, Sabrina Jean Baptiste, was operating a motor vehicle westbound when her said motor vehicle was struck in the rear by an eighteen-wheel tractor trailer owned by the Defendant, Hopeland Fars, and operated by the Defendant, T oily Terrell Weeks. The Plaintiff alleges that, as a proximate consequence of the subj ect motor vehicle accident, she suffered a "serious injur" as defined in Insurance Law Section 51 02( d)(2) and (3) in that she sustained "a permanent consequential limitation as well as a significant limitation of use of her cervical and lumbar regions as well as her left shoulder. The rule in motions for sumar judgment has been stated by the Appellate Division, Second

2 Dept., in Stewart Title Insurance Company Equitable Land Services, Inc. 207 AD2d 880, 881: It is well established that a par moving for summary judgment must make showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad New York Univ. Med Center 64 NY2d 851, 853; Zuckerman City of New York 49 NY2d ). Of course, summar judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (State Bank McAulife 97 AD2d 607), but once showing has been made, the burden shifts to the par opposing the motion for summar judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez Prospect Hosp. 68 NY2d 320, 324; Zuckerman City of New York, supra at 562). In support of the instant motion, the Defendants have submitted inter alia an unsworn September 2004, letter report of Jason T. Birnak, a chiropractor, who performed an independent chiropractic examination of the Plaintiff, on behalf of the moving Defendants, on September 17, 2004; a September 2004, affirmation of Francine Moshkovski, M., board certified in Physical Medicine and Rehabilitation, who performed an independent medical examination of the Plaintiff, on behalf of the moving Defendants, on September 21, 2004; a May 8, 2006, affirmation of Stuar J. Hershon, M. orthopedic surgeon, who performed an orthopaedic independent medical examination of the Plaintiff, on behalf ofthe moving Defendants, on April 27, 2006; a May , affirmation of Robert S. April, an

3 , on behalf of the, who performed an independent neurological disability examination of the Plaintiff moving Defendants, on May ; and a signed but unsworn and unaffirmed June 29, 2006, letter report of Sanford P. Antin, M., who states that he performed a neuroradiological examination of the Plaintiff. Initially, it must be noted that the hereinabove described September , letter report of Jason T. Birnak, a chiropractor, and the June , letter report of Sanford P. Antin, M.D. do not constitute competent evidence that can be considered by this Cour. Specifically, the letter report of Jason T. Birnak, who is not a medical doctor is inadmissible since it is not in affidavit form and the letter report of See, Liao Sanford P. Antin, M. Festa 18 AD3d 448., does not comply with Rule 2106 of the CPLR. Furhermore, in Jason T. Birnak' s aforesaid report, he describes the Plaintiff at the time of his examination as "Age: 76 years, Height: 5 ft. 6 in." when in fact the plaintiff was thirt (30) years old and five (5) feet two (2) inches in height. Counsel for the moving Defendants does not address this discrepancy in a Reply Affirmation but anexes thereto inter alia an unsigned photostatic copy of the hereinabove described unsworn and unaffirmed June 29, 2006, letter report of Sanford P. Antin, M., which bears the following pen and ink addendum below the doctor s unsigned signature line:, Sanford P. Antin, M., being a physician duly licensed to practice in the State ofn. Y. pursuant to the CPLR, hereby affirm under the penalties of perjur that the information contained within this document is true to the best of my knowledge and information. slsanford P. Antin, M. Even a casual examination of the signatures of Sanford P. Antin, M., appearing on the hereinabove described letter reports submitted in support of the instant motion and in reply to the

4 Plaintiff s opposition, finds that the signatures are not of the same proponent. Accordingly, this Cour wil not consider either report of Sanford P. Antin, M. The affrmations of Francine Moshkovski, M., Stuar J. Hershon, M., and Robert S. April, while indicating range of motion and degrees of the range of motion, all three (3) doctors failed to compare these findings to the normal range of motion. Therefore, their proffered reports of their respective examinations of the Plaintiff failed to objectively demonstrate that the Plaintiff did not sustain a permanent consequential limitation as well as a significant limitation of use of her cervical and lumbar regions as well as her left shoulder. See, Manceri Bowe 19 AD3d 462. Accordingly, based upon all the papers submitted for this Court' s consideration, this Cour finds and determines that the moving Defendants failed to demonstrate a showing that the Plaintiff did not sustain a "serious injury. Where the defendants. have not met their burden, the court need not consider whether the Plaintiffs papers in opposition to the motion were suffcient to raise a triable issue of fact. See, Trantel Rothenberg, 286 AD2d 325; Papadonikolakis First Fid Leasing Group, Inc. 283 AD2d 470 and Murphy Demas, 277 AD2d 208. In any event, even if the moving Defendants' submissions were adequate, the Plaintiff has submitted sufficient evidence to raise a triable issue of fact. In opposition to the instant motion, the Plaintiff has submitted the affirmations of Louis C. Rose, an orthopedic surgeon, and David Payne, M., a board certified radiologist, wherein it is demonstrated that the Plaintiff suffered bulging discs at C4- C5 and C5-C6 and a bulging disc at L5- S I and a right C6-C7 cervical radiculopathy which were proximately caused by the subject motor vehicle accident.

5 ;, Furhermore, Dr. Rose qualitatively set forth significant restrictions of motion with respect to the Plaintiffs cervical spine and lumbar spine resulting from the hereinabove described disc injuries as well as a posterior labral tear and impingement and tendinitis on the supraspinatus outlet of the Plaintiff s left shoulder, all of which constituted "a permanent consequential limitation as well as a significant limitation of use of her cervical and lumbar regions as well as her left shoulder, which were proximately caused by the motor vehicle accident on May 24, In accordance with the foregoing, defendants ' motion is denied in its entirety. Dated: November 8, 2006 ENTRED NO 420 NAiSAU COU COUNf' JiK' S O N1Y, FlOE