Plaintiff(s), Defendant(s).

Transcription

1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. JOHN P. DUNNE, Justice MOHAMMAD H. HATAMIAN, a/k/a MARK HATAMIAN, an infant over the age of 14 years, by his father having legal custody thereof, ALIREZA HATAMIAN, and ALIREZA HATAMIAN, individually, -against- Plaintiff(s), SHAHRBANOU SAKABANDI, MOHAMMAD REZA HATAMIAN, JODI Y. CORLEY and YVONNE CORLEY, TRIAL/IAS, PART 13 NASSAU COUNTY MOTION SEQ. No. 1 INDEX No /99 MOTION SUBMISSION DATE: 4/3/02 Defendant(s). The following papers read on this.l motion: 5 Notice of Motion X Answering Affidavits X Replying Affidavits X Memorandums of Law XX Upon the foregoing papers, it is hereby ordered that defendants Corleys application for an order granting them summary judgment and dismissing the plaintiffs complaint against them and any cross claims as well is decided as follows. The instant action is a personal injury action arising from a motor vehicle accident which is alleged to have occurred on August 3 1, Plaintiff infant was a passenger in a vehicle operated by Mohammad Reza Hatamian and owned by Shahrbanou Sakabandi.

2 Defendants Corley, move for summary judgment on the issues of liability and on the ground that the injuries sustained by plaintiff do not meet the requisite serious injury threshold as set forth in Section of the Insurance Law of the State of New York. It is alleged that the accident occurred when the vehicle plaintiff was riding in was making a left turn from East Mill Drive onto Great Neck Road. When the defendants Corley vehicle was entering the intersection from Clair Street which is the continuation of East Mill Drive on the other side of Great Neck Road. Defendant driver Jodi Corley in her affidavit in support of her motion states she had a green light as she entered the intersection and was driving approximately 30 miles per hour when the plaintiffs vehicle cut in front attempting to make the left turn. With respect to the plaintiffs injuries, the defendants Corley argue that the plaintiffs cervical and lumbar spasms, sprains and bulges do not constitute a serious injury pursuant to the Insurance Law. Plaintiff was not hospitalized, did not lose any time from school and participates in gym class and in January, 2000, was working for his father s business. The plaintiffs last r medical treatment was in July of 1999 and has not received any treatment since that time. Defendants Corley submitted an affirmation of Dr. Marano, an orthopedist who examined the plaintiff on January 12,2001, on behalf of the defendant. In his affirmed report Dr. Marano concluded after a review of the plaintiffs treatment records, MRI s, x-rays and his own examination that the plaintiff had sustained resolved cervical and lumbosacral sprain with no loss of motion and no subjective complaints of pain. Defendants Corley also submitted an affirmed report of Dr. Sax-no, a neurosurgeon who examined the plaintiff on November 29, 2000, at the defendants request. Both the cervical 2

3 spine and lumbar spine was found to have full range of motion and normal lordosis of the lumber spine. Dr. Samo s conclusion of resolved sprains were a result of the tests performed on plaintiff, (straight leg, Romberg, Hoffmans, Babinskis tests, review of records, EMG reports). Lastly, the defendants Corley submit an affirmed report of radiologist Dr. Elizabeth Matlin who on February 23,2001, reviewed MRI which was taken on December 9,1998. She reviewed the MRI and found no evidence of disc herniation, stenosis or compromise nor appreciable bulging of the discs. She concludes the plaintiffs MRI of lumber spine is within normal limits. Defendants Corley have met their burden with respect to the issue of threshold injuries. Therefore, the burden shifts to the plaintiff to come forward with legally admissible evidence to support his contention that he did suffer a serious injury. Rose v Ferguson, 278 AD2d 363; Grossman v Wright, 268 AD2d 79; Tankersley v Szesnat, 235 AD2d Plaintiff, in opposition to defendants Corleys motion submits his affidavit claiming that since the accident he is in periodic pain, cannot vacuum, run track, wrestle, or sit for long periods of time without pain. In addition, the plaintiff submits an affidavit from Dr. Bakshi, a neurologist, who first examined the plaintiff in September, 1998 for injuries sustained as a result of the auto accident of August 31, He also examined the plaintiff on February 15,2002, with respect to the instant motion. In 1998,. Dr. Bakshi stated that the plaintiff suffered from sprain syndrome, her-r-nation of cervical and lumber discs. Dr. Bakshi references his unsworn report dated September 9,1998, as well as unsworn radiology reports of MRI dated December 9,1998. That MRI report indicates evidence of disc bulge at L l-2, L2-3 but no disc hemiations. That unsworn 3

4 report is signed by Dr. Basra. Also attached as an exhibit by plaintiff is an unsworn physical therapy chart which indicated plaintiff had three sessions, l/4/99, l/7/99 and 2/5/99, which is unsworn to and unsigned. Even Dr. Bakshi s conclusions in his affirmation which references the plaintiffs restriction in range of motion refer to 1998 test results only (exhibit C ofplaintiff s opposition papers). Plaintiff cannot rely upon the unsworn inadmissible MRI report prepared by another doctor in order to sustain his burden. (Lesser v Smart Cab Co., 283 AD2d 273; Goldin v Lee, 275 AD2d 341; Wagman v Bradshaw, m2d, 3/l 8/02.) Plaintiffs affidavit of subjective complaint of pain is insufficient to establish that he suffers from a serious injury,. Plaintiffhas not established a significant or permanent limitation to satisfy the requirements. By his own admission, he was in bed two days and stayed in his house for seven days. He does not claim he missed any time from work or school. His subjective claims with respect to his vacuuming and sports activities are not enough to establish the substantially all ^ requirement (90 out of 180 days). That requirement states that the plaintiff as a result of the accident sustained a medically determined injury or impairment of a non-permanent nature that prevented him from performing substantially all of the material acts that constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. (Jones v Norwich City School District, 283 AD2d 809; Ceruti v Abernathy, _m2d, WL ,200 1; Graham v Shuttle Bay Inc., 281 AD2d 372.) Likewise, there is no explanation for the delay in treatment from 1998 or 1999 to (Medina v Reis, 239 AD2d 394; Marshall v Albano, 182 AD2d 614; Grossman v Wright, 4

5 sum-a.) Therefore, the Court finds that the plaintiffhas not sustained a serious physical injury. The plaintiffs complaint is dismissed as are the cross claims against the defendants. It is, so ordered. :!.-. Dated: May 2 1,2002