SHORT FORM ORDER Present: SUPREME COURT - STATE OF NEW YORK HON. GEOFFREY J. O CONNELL Justice NILTON C. SPERB and KARIN SPERB, TRIAL/KS, PART 9 NASSAU COUNTY -against- Plaintiff(s), INDEX No. 444/02 ROBERT J. POPPER, MOTION DATE: 4/17/03 Defendant(s). MOTION SEQ. No. l-mg 2-MG The following papers read on this motion: Notice of Motion/Affirmation/Exhibits A-E Notice of Cross Motion/Affirmation/Exhibits Affirmation in Opposition/Exhibits A-D Both plaintiffs and defendant seek Orders granting them summary judgment pursuant to CPLR of action pursuant to Insurance Law $! 5 102. This action arises out of an automobile collision which occurred on April that NILTON SPERB was operating and KARIN SPERB was a passenger in an automobile struck in the rear by a vehicle owned and operated by defendant ROBERT POPPER at 5 3212. Plaintiffs contend that there is no triable issue of fact that the defendant is fully liable for the underlying automobile collision. Defendant opposes and seeks a dismissal of the claims of KARIN SPERB arguing that she cannot establish that she suffered the requisite serious physical injuries as necessary to bring this cause 9,200l. Plaintiffs allege 8:20 p.m. in Oyster Bay, New York. Based on the proof and testimony presented, including defendant s testimony at his deposition, wherein he testified that it was raining, he saw plaintiffs vehicle stopped ahead of him, and he struck
Snerb v. Popner plaintiff vehicle in the rear, the motion of the plaintiffs for summary judgment on the issue of liability is Granted. Any and all affirmative defenses and counterclaims regarding liability for the collision are stricken. Defendant also seeks summary judgment dismissing the claims of KARIN SPERB, pursuant to CPLR 0 3212, contending that this plaintiff has failed to demonstrate that she suffered the requisite threshold serious physical injuries as required to maintain this action under Insurance Law 5 5102(d). KARIN SPERB alleges that she suffered numerous injuries as a result of the collision. In her Bill of Particulars this plaintiff alleges that she suffered bilateral gliosis of cerebellar hemisphere; areas of gliosis in the peripheral margins of the left and right cerebellar hemisphere slightly more pronounced on the left; post head trauma with symptoms of post-concussion headache syndrome; acute cervical strain; acute lumbar strain requiring cortisone injections; cervical radiculopathy, and lumbar radiculopathy. (Cross Motion, Exh. C) KARIN SPERB was taken from the accident scene by ambulance to North Shore University Hospital in Plainview, where she was examined and released. She states that the next day she went to her general practitioner and was treated by a series of physicians over the next few years. She underwent testing, including four MRIs, one EEG, EMG, motor and sensory nerve conduction studies and x-rays. She further stated that she was examined by a neurologist approximately six times and a chiropractor two to three times a week. Ms. SPERB testified that as a result of the accident she continues to experience pain and stiffness in her back and neck, as well as headaches. She states that for the first year after the accident she could not perform her usual customary activities in primary child care and household maintenance, including heavy lifting, vacuuming, cleaning and physical activities with the children. She also testified that she still cannot sit for long periods of time. (Opposition, Exh. A;Motion, Exh. B) Plaintiff underwent an independent orthopedic examination by Dr. S. Farkas on September 3,2002. Dr. Farkas provides a sworn report and affidavit wherein he states that he reviewed plaintiffs medical records provided. He states that plaintiff complained of periodic neck and back pain. He reports that the plaintiff 2
Snerb v. Ponner told him that she missed work for approximately two weeks, returned part time and is now an administrator, Dr. Farkas states that he examined the plaintiff and found that she has cervical and lumbar sprains which had resolved. He also states that the claimant s subjective complaints are not supported by objective test results, and that she suffered no orthopedic injury at the time of the exam. Plaintiffs examination was essentially normal, that she had a complete range of motion and no spasm, tenderness or paracervical musculature. (Cross Motion, Exh. D). Based on these findings as well as plaintiffs proof, defendant moves for summary judgment. Plaintiff opposes summary judgment. Defendant argues that the objective medical evidence of record demonstrates that KARIN SPERB s injuries do not fall within any of the nine categories of serious injury specified in Section 5102 (d) of the No Fault Law. Counsel for plaintiff argues that KARIN SPERB s injuries do rise to the level of serious injury as defined, as her injuries are permanent and significant, and that she was unable to perform her usual and customary activities for 90 of the first 180 days following the examination. Counsel for plaintiff argues that this raises a triable issue of fact whether she suffered threshold injuries. Plaintiffs counsel does not fully address the conclusions of the defendant s orthopedist s results. Plaintiff relies primarily on the conclusions of plaintiff s treating physicians. Plaintiff provides an affidavit from her treating neurologist, Dr. Jill Bresler, who states that she examined plaintiff on March 11,2003. She states that the plaintiff was seen at her office on several occasions after the accident beginning on May 21,200l. She states that Mrs. SPERB underwent four MRIs as well as the testing noted by the plaintiff. She states that KAREN SPERB initially complained of severe headaches stemming from the base of the neck to the bifrontal and temporal regions with frequent episodic shooting pain and numbness in her right arm, lower back and right leg. Dr. Bressler states that the MRI of June 14,200l showed a bilateral gliosis of the cerebellar hemispheres. The plaintiff appeared with similar complaints of pain on June 21,200l and August 30,200l at which time she was prescribed Estrig Plus for symptomatic relief. On October 9, 2001 another MRI was performed which revealed areas of gliosis in the peripheral margins of the left and right enhancement post contrast administration. The doctor states that this patient appeared again on November 1,200l with complaints of daily headaches and questionable memory 3
Snerb v. Ponper disturbance as well as continued neck and lower back pain. Similar complaints were made at a visit on January 6,2002. Dr. Bressler states that on March 11, 2003 she personally examined plaintiff and performed unspecified objective tests and found a 10% loss of mobility in the extremes of lateral station in both directions, and a positive straight leg raise sign at 45 degrees. She diagnoses KARIN SPERB with having suffered head trauma, post concussive headache syndrome, cognitive dysfunction, gliosis as well as cervical and lumbar strain and sprains. (Opposition, Exh C). She also states that these injuries were causally related to the accident, and are significant and serious. Plaintiff provides a letter from her neurologist, Dr. Victor Chehebar who states that when he evaluated plaintiff on May 21,2001, she had multiple complaints of pain. This unsworn letter does not give the neurologist s diagnoses of the plaintiff but merely states the physician s impression and recommendations for future testing. Another unsworn letter from the neurologist is provided also merely provides a basis for testing. It again, does not make a diagnosis of serious injury for this plaintiff. An unsworn narrative report of the patient is provided wherein the doctor again states Mrs. SPERB s complaints of pain from his examination of her in May 2001. He states that he reviewed her subsequent medical history, to state that the plaintiff suffered post traumatic headache syndrome, concussive disorder and cognitive dysfunction, as well as cervical and lumbar sprains as a result of the collision. Plaintiffs doctor, Dr. Bressler, in her sworn statement, fails to specifically identify the plaintiffs current permanent serious disability, nor the objective medical tests she relies upon in concluding that she suffers from such serious or significant injuries. Both doctors fail to state any objective tests performed on the plaintiff which demonstrated a significant limitation, apparently relying only upon subjective complaints of pain. These failures in the physicians s affirmations render their opinions insufficient to defeat an otherwise meritorious motion for summary judgment. Barbundo v. Allery, 271 AD2d 897 (3d Dept. 2000). Plaintiff s statements that she was otherwise limited due to his own subjective complaints of pain are also insufficient to defeat summary judgment. Georgia v. Ramataur, 180 AD2d 713 (2nd Dept. 1992); Scheer v. Koubek, 70 NY2d 678 (1987). The term serious injury is defined for the purposes of this action in Insurance Law 9 5102(d). Serious injury means a personal injury which results in death; dismemberment; significant disfigurement; 4
Snerb v. Ponner 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 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. In order to bring the present action, plaintiff must set forth evidence that they have incurred serious injuries in accordance with this definition. The legislative intent underlying the no-fault law was to weed out frivolous claims and limit recovery to significant injuries. As such, courts have required objective proof of a plaintiff s injury in order to satisfy the statutory serious physical injury threshold. Subjective complaints alone are not sufficient. Tou re v Avis. R ent A Ca r Syste m s, INY2d nc., 345 98 ( 2002 In ). order to find that an injury constitutes a permanent loss of a use of body part or organ, or function or system, the Courts have determined that a plaintiff must establish that the loss is permanent and more than a mere limitation. It must be permanent and consequential. O berly v. Bang s Am bu l ance NY2d, 96295 (2001). There must be a medical showing that the limitation is significant. objective tests, such as x-rays, (1991); F ried m an v. U - H au l T r uck R ental AD2d 266, 216 (2nd Dept. 1995); Pagan0 v. K i ngsbury, AD2d 182 268 (2nd Dept. 1992). Dept. 1998); It is the burden of the plaintiff to establish his or her serious physical injury by providing the Court with objective medical evidence, that there is a degree and extent of limitation of use and or function, which is permanent. An expert s designation of a numeric percentage of a plaintiffs loss of range of motion can be used to substantiate a claim of serious injury, provided that the evaluation has an objective basis and compares the plaintiff s limitations to the normal function, purpose and use of the affected body organ, member, function or system. Tou re v. Av is RA ent Ca r, s up. r a It must be a medical opinion supported by MRIs, Laseque tests or other recognized tests with quantitative results. Such tests, to be considered by the Court must be provided in admissible form. The narrative of plaintiffs neurologist, Dr. Chehebar is unconvincing. Uncertified medical records and reports containing diagnoses and opinion of persons who are not the affirmed, lack probative value and cannot be relied upon to defeat a motion for summary judgment. M c G u irv k. V edder 2000, NSLIP Y OP 3406 (3 ddept. 2000). G rass0 v. Ange r a m i, NY2d 79 813 V entura v M. oritz, 255 AD2d 506 (2nd 5
Snerb v. PonDer The Courts required objective medical findings and diagnostic tests to support a plaintiffs complaints of pain and limitation. Such shall include: (1) a detailed percentage of loss of range of motion; (2) objective orthopedic or neurological tests and results; (3) a medical opinion relating to those test results to the injuries claimed; (4) proof establishing that the injuries were caused by the accident; and (5) a sworn medical opinion that the injuries are permanent. Barbarulo v. AZZery, supra. The plaintiff must provide verified medical findings to support claims of permanent injuries, such objective medical evidence must: (1) be based on a recent examination; (2) must explain any lapse or discontinuance of treatment; (3) must contain quantitative objective findings; and (4) must state opinions as to the significance and permanency of the injuries. Grossman v. Wright, 268 AD2d 79 (2nd Dept. 2000). Conclusory allegations that the plaintiffs injuries are permanent are insufficient to make aprima out facie claim of serious injury to defeat a motion for summary judgment. Licari v. Elliot, 57 NY2d 678 (1987); Gaddy v. Eyler, 79 NY2d 955 (1992). Conclusions of even an examining physician which are unsupported by acceptable medical evidence are insufficient to defeat a motion for summary judgment directed to the threshold issue of whether the plaintiff has suffered serious physical injury. Georgia v. Ramautar, 180 AD2d 713 (Znd Dept. 1992); Mobley v. Riportella, 241 AD2d 443 (2nd Dept. 1997). A doctor must cite the objective tests performed on the injured plaintiff or specify not only the extent and degree of any limitation of movement of the cervical or lumbar spine, but also its duration. Giannakis v. Paschlidou, 212 AD2d 502 (2nd Dept. 1995); Weber v. Harbus, 212 AD2d 525 (2nd Dept. 1995). Thus, the medical opinions such as those expressed by the physicians provided by plaintiff do not constitute competent evidence of a continued permanent serious injury for the purposes of Insurance Law $ 5102(d). Scheer v. Koubek, 70 NY2d 678 (1987); Marshall v. Albano, 182 AD2d 614 (2nd Dept. 1992). Plaintiff KARIN SPERB also argues that her injuries rise to the level of serious injury as defined, as plaintiffs injuries are permanent and prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for no less than 90 days of the 180 days imrnediately following the automobile collision on March 6,200O. Although plaintiff alleges that her injuries prevented her from working and performing all of their normal activities for 90 of the 180 days immediately following the accident, her proof supporting that 6
Snerb v. Penner contention is insufficient. She offers evidence that she returned to work after only two weeks. Plaintiff s and her doctor s statement that she could not perform her usual activities in the house or with her children are too vague. There is no indication of any customary daily activity at, or outside of work, which she could not actually perform due to her injuries. In any event, a plaintiff s testimony that he was out of work for at least six months while under active medical care, did not, in the absence of a physician s affidavit substantiating that his alleged impairment was attributable to a medically determined injury, suffice to raise a triable issue of fact. Sigona v. NYCTA, 255 AD2d 231 (lst Dept. 1998). A plaintiff must show that the restrictions alleged were medically indicated or that the curtailed activities comprised a significant portion of plaintiff s usual daily activities. Below v. Randall, 240 AD2d 439 (3d Dept. 1997). In order to prove serious injury under the category of 90 out of 180 days, limitations, a plaintiff must establish that she was unable to perform her usual and customary daily acts for 90 out of the 180 days immediately following the accident. DeFiZippo v. White, 101 AD2d 801 (2nd Dept. 1994). This must be more than a slight curtailment. Gaddy v. Eyler, 79 NY2d 955 (1992). She must provide competent objective medical evidence demonstrating that an injury was sustained which prevented these activities. McKnight v. LavaZZe, 147 A.D.2d 902 (4 Dept. 1989); &@to v. Martorano, 161 AD2d 639 (2nd Dept. 1990); Melind v. Lauster, 195 AD2d 653 (3rd Dept. 1993) afsd 82 NY2d 828. Plaintiff must establish that a medically-determined injury prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities during this time. Crespo v. Kramer, 295 AD2d 467 (2nd Dept. 2002). Based on the foregoing and the evidence presented, defendants motion for summary judgment dismissing the claims of KARIN SPERB pursuant to CPLR 0 3212 is Granted, as this plaintiff has failed to set forth the necessary proof establishing that she suffered serious injury as required under the Insurance Law as is a necessary threshold requirement to state a cause of action. It is, SO ORDERED. Dated: MAY 15 2003