SHORT FORM ORRER SUPREME COURT - STATE OF NEW YORK Present: HEROLD ABRAHAM, HON. ROY S. MAHON Justice TRIAUIAS PART 19 - against INDEX NO. 11131/01 Plaintiff(s), MOTION SEQUENCE - NO. 1 EDWARD J. VOSKA, Defendant(s). MOTION SUBMISSION DATE: December 4,2002 The following papers read on this motion: Notice of Motion Affirmation in Opposition X X The motion brought by the Defendant, in the above captioned motor vehicle tort action, for an order of this Court, pursuant to Rule 3212 of the CPLR & New York Insurance Law Section 5102(d), granting summary judgment in favor of the movant dismissing the verified complaint of the Plaintiff herein is granted. The instant action arises out of a motor vehicle accident that occurred on August 4, 2000 on Jericho Turnpike at or near its intersection with Roxbury Road, in Westbury, Nassau County, N.Y. The parties in the instant action were the respective owner-operators of the motor vehicles involved in the motor vehicle accident that is the subject matter of the instant action. The rule in motions for summary judgment has been stated by the Appellate Division, Second Dept., in Stewart Title Insurance Companv v. Eouitable Land Services, Inc., 207 AD2d 880, 881: It is well established that a party moving for summary judgment must -l-
make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winearad v. New York Univ. -Med. Center 64 NY2d 851, 853, Zuckerman v. City of New York, 49 NY2d 557,562). Of course, summary 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 v. McAuliffe, 97 AD2d 607), but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v. Prosoect Hoso., 68 NY2d 320, 324; Zuckerman v Citv of New York, supra, at 562). New York Insurance Law Section 5102(d) statutorily defines serious injury as follows: and Erik J. Entin, M.D. (D) Serious injury 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. In support of his motion, the Defendant has submitted the Affirmations of Jerrold M. Gorski, M.D. In his Affirmation, Dr. Gorski, a Diplomat, American Board of Ot-thopaedic Surgery, reports of his June 4, 2002 medical examination of the Plaintiff: Motions of the head and neck were full and unaccompanied by complaints of pain. There are no focal findings in the upper extremity. He had normal gleno humeral motion. He has a negative impingement sign. There was no pain on palpation of the neck, upper back or shoulder region. He had good grip strength. Neurovascular was intact in the upper extremity. The DTR s were 2+and symmetric, There was no atrophy of girth of the arm or forearm. His back was unscarred. He had normal lumber lordosis. The straight leg raising test was negative standing, seated and lying. There was full mobility of the hips, knees and ankles. There was no atrophy of the thighs or the calfs. There was no motor, focal or sensory deficit in the lower extremity. -2-
In conclusion, I have examined Mr. Abraham for injuries claimed in a motor vehicle accident on 8-4-00. He has subjective complaints of a mild nature of clinical course involving return to physically demanding labor in a very short period of time is not consistent with a serious injury. There are no objective findings to substantiate his objective complaints on orthopedic evaluation today. There is no evidence of any impairment, disability or permanency resulting from this motor vehicle accident. In his Affirmation, Dr. Entin, a Diplomat, American Board of Psychiatry and Neurology, reports of his June 20, 2002 neurological evaluation of the Plaintiff: MOTOR EXAMINATION: Gait was normal. Thee was no Roxberg sign. Examination of strength was normal. Muscle tone was normal. There was no muscle atrophy. There were no abnormal involuntary movements. Coordination examination revealed normal finger-to-nose, heel-to-shin, rapid alternating movements and tandem walking. Deep tendon reflexes were 1+ and symmetrical throughout. Plaintiff responses were flexor bilaterally. Thee were no Hoffman reflexes. SENSORY EXAMINATION: All primary and conical sensory modalities were intact. IMPRESSION: Mr. Abraham has essentially normal neurological examination, with no evidence of neurological abnormality or disability relative to the accident of 8/4fQO. Under the no-fault law, in order to maintain an action for personal injury, a plaintiff must establish that a serious injury has been sustained. (Licari v Elliot, 57 NY2d 230 [1982]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any mataerial issue of fact and the right to judgment as a matter of law. (Alvarez v Prospect Hospital, supra; Winearad v. New York Univ. Medical Center, suora). In the present action, the burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a serious injury. (Lowe v. Bennett, 122 A.D.2d 728, [l. Dept. 19861, affirmed, 69 N.Y.2d 701, [1986].) When a defendant s motion is sufficient to raise the issue of whether a serious injury has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury. (Licari v. Elliott, supra, Lopez v. Senatore, 65 NY2d 1017, [1985]). -3-
The Affirmations of the Defendant s examining neurologist.and orthopedist satisfied the Defendant s initialburden of demonstrating that the Plaintiff did not sustain a statutorily defined serious injury. The report of J. Poveda, M.D., dated August 4, 2000, the report of Dr. Peter M. Swerz, dated September 6, 2000, the report of Dr. Leon Rubenfaer, dated October 10,2000, and the reports of Dr. Josephine A. Brawner dated September 7, 2000 and October 5, 2000 submitted by the Plaintiff in opposition to the instant motion were neither sworn to nor affirmed to be true under the penalty of perjury and thus were not competent evidence that could be considered on the instant motion (see, Mezentseff v. Mina Yat Lau, 284 AD2d 379; Merit v. Cancela, 275 AD2d 309; Slavin v. Associates Leasino. Inc. 273 AD2d 372 and Moore v. Taopen, 242 AD2d 526). Accordingly, the aforesaid reports were not considered by the Court with respect to the instant motion. In further opposition to the instant motion the Plaintiff submitted an November 21, 2002 Affidavit from Peter M. Swerz, D.C., wherein Dr. Swerz stated: On September 1, 2000, Mr. Abraham presented himself to my office due to injuries he sustained in a motor vehicle accident on August 4, 2000. The patient made complaints of pain to his lower back, left wrist and head. The patient reports that his persistent pain interferes with his ability to perform his job function and even basic household chores are very difficult for him. Until the accident, Mr. Abraham reported his health has been very good and his rior medical history unremarkable. The initial examinatibn of Mr. Abraham consisted of several physical and neurojogical tests of the cervical and lumbar spines. A rang e of motion test of the cervical spine revealed the following: Flexion: 45 degrees, Normal: 50 degrees; Extension: 20 degrees, Normal: 60 degrees; Left rotation: 45 degrees, Normal: 50 degrees; Right rotation: 45 degrees, Normal: 50 degrees; Lateral flexion: 20 degrees, Normal: 45 degrees, Right lateral flexion: 20 degrees, Normal: 45 degrees. Foraminal Compression and Jackson s test disclosed positive findings. A range of motion test of the lumbar spine revealed the following: Flexion: 60 degrees, Normal 90 degrees; Extension: 10 degrees, Normal: 30 degrees; Left Lateral Flexion: 20 degrees, Normal: 30 degrees, Right lateral flexion: 20 degrees, Normal: 30 degrees. The following tests were all positive: Kemp s test bilaterally, straight leg raise bilaterally at 60 degrees and Soto-Hall. Mr. Abraham underwent acourse of treatment with our office over the next two months. This treatment consisted of muscle massage, spinal manipulation and hydrocollator therapies. -4-
It is my diagnosis, within a reasonable degree of certainty as a doctor of chiropractic, that Mr. Abraham suffered the following injuries as a result of the motor vehicle accident he was involved in on August 4, 2000: acute traumatic lumbar radiculitis, cervical and lumbar myofascitis, cervical spine internal derangement, post traumatic headache disorder, cervical restriction and lumbar restriction. It is my opinion, within a reasonable degree of certainty as a doctor of chiropractic, that Mr. Abraham sustained a permanent, partial disability to his neck and back resulting in a 25% loss of motion of his neck and 30% loss of motion of his back as a result of the motor vehicle accident of August 4,200O. Moreover, this disability lasted for more than 90 days out of the first 180 days following the accident and that this injury affected Mr. Abraham s daily life. As a result of Mr. Abraham s injuries, he is unable to lift heavy objects and has trouble bending. Mr. Abraham describes painful limitations in participating in sports. The limitations described by Mr. Abraham are a natural and expected medical consequence of the injuries sustained as a result of the motor vehicle accident of August 4, 2000. From this Court s reading of Dr. Swerz s affidavit, the Court concludes that Dr. Swerz first treated the Plaintiff approximately one (1) month after the subject motor vehicle accident, that Dr. Swerz s course of treatment was for a period of two (2) months and that Dr. Swerz has not examined the Plaintiff for a period of over twenty seven (27) months to date. Furthermore, Dr. Swerz does not provide any explanation for the aforesaid gap between his last treatment of the Plaintiff and the date of his affidavit. The burden is upon the Plaintiff to explain this. Medina v. Zalmen Reis & Assocs., 239 AD2d 394. This the Plaintiff has failed to do. Accordingly, Dr. Swerz s set forth objective findings, not being based upon a recent examination of the Plaintiff, cannot defeat the Defendant s meritorious motion for summary judgment. Graham v. Shuttle Bav, Inc., 281 AD2d 372; Gielai v. Ludde, 281 AD2d 211 and Grossman v. Wriqht, 268 AD2d 79. The Plaintiff having failed to submit evidentiary proof in admissible form sufficient to establish material issues of fact which would require a trial of the instant action mandates the granting of the Defendant s motion for summary judgment and the dismissal of the Plaintiff s verified complaint herein.
4. This order shall constitute the decision and judgment of the Court....a..... J.S.C. DATED : f // w - 43...& L.. &........ - 6 -