............... SHORT FORM ORDER Present: SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 22 HON. WILLIAM R. LaMARCA Justice ucay RICHARD DELLAPORT A, Plaintiff, Motion Sequence # 001 Submitted April 20, 2006 XXX -against- INDEX NO: 1254/05 PAUL F. CUNNINGHAM, Defendant. The following papers were read on this motion: Notice of Motion Defendant' s Memorandum of Law in Support... Affirmation in Opposition......... Plaintiff' s Memorandum of Law in Opposition... Reply Aff rmation... Relief Reauested Defendant, PAUL F. CUNNINGHAM, moves for an order, pursuantto CPLR 93212 and Article 51 of the Insurance Law, dismissing the complaint of plaintiff, RICHARD DELLAPORT A, on the ground that the injuries alleged by the plaintiff do not satisfy the serious injury" threshold requirement of Section 51 02( d) of the I nsurance Law of the State of New York and, as such, plaintiff has no cause of action under Section 5104(a) of the Insurance Law. Plaintiff opposes the motion which is determined as follows:
Background The action arises out of a two-vehicle collision that took place on May 17, 2004 at approximately 11 :30 AM. According to the plaintiff, he was making a delivery for his employer, Anypart Automotive, and was proceeding eastbound on Spur Drive near the intersection with Fifth Avenue, in Brentwood, New York, when he was stopped by a police officer because of a blinking light at the intersection which was broken. At his deposition, plaintiff testified that, after sitting in traffic for about thirty (30 ) seconds, he felt a light impact to the rear of his car, made by Mr. CUNNINGHAM' s vehicle, and that both cars were directed to the parking lot of a nearby Exxon Gas Station. Plaintiff stated that CUNNINGHAM apologized to him and said he was having a bad day as his father had just been rushed to the hospital and he was on his way to see him. As to Serious Iniury At his deposition, plaintiff testified that, at the time of the accident, he felt pain to his left arm and his neck but drove the vehicle back to his employer s shop. He stated that filed out an accident report and did not make deliveries for the rest of the day but was kept in the shop. He testified that when he went back to work, he felt pain in his arm and neck and first saw a doctor about four (4) days after the accident. He claims that he was treated by Dr. Palmer, a chiropractor, about three (3) times a week for a period of about two (2) or three (3) months, with adjustments, heat treatment and electrical stimulation, to realign his shoulder, neck and back, where he continued to have pain. Plaintiff stated that his neck and shoulder improved from the treatments until about a month later, in June, when he collapsed" at work. At his deposition he related that he didn t know what happened, but
he "went down at work", couldn t walk, and was taken by ambulance from work to Souths ide Hospital and experienced shooting pain up an down his back and couldn t move. He was given pain medication at the hospital and a CAT Scan and was advised to see his regular doctor and get into a pain management program. Plaintiff claims that he was out of work for about two (2) months after said incident and that he was treated by Dr. Jauger his regular physician, who prescribed muscle relaxers and took MRl's of his neck, shoulder and back. He stated that, on Dr. Jauger s advice, he stopped seeing Dr. Palmer and began treatment for physical therapy at Universal Health and Rehab, but returned to Dr. Palmer after two (2) physical therapy treatments because he was getting better treatment at Dr. Palmer s office. He continued to treat with Dr. Palmer until September 2004 when he claims Worker s Compensation stopped paying his treatment bills. Plaintiff testified that after the accident, his job duties changed significantly because he stayed behind the counter and did not unload trucks, lift heavy items or make deliveries. He claimed that he left the job because he "wasn t allowed to do anything anymore. He stated that he can no longer do heavy lifting, long term driving and yard work and that he continues to take a muscle relaxer when he has bad pain in his back. On January26, 2005, plaintiff commenced the instant action for personal injuries against defendant by filing and later serving the Summons and Complaint. On or about February 17, 2005, defendant interposed an answer denying the material allegations of the complaint together with affirmative defenses. Following joinder of issue, plaintiff served a Bill of Particulars in which he alleged that he sustained the following injuries which are permanent and caused by the underlying accident: Severe lumbar pain;
Straightening of the cervical spine; Bulging disc at C3-C4; Cervical pain on left side; and Severe left shoulder pain. Verified Bil of Particulars annexed to moving papers as Exhibit ", paragraph 6. Upon the instant application, defendant now moves for summary judgment dismissing the complaint on the ground that the injuries claimed by the plaintiff fail to meet the "serious injury" threshold requirement of the No Fault Law. In support of the motion defendant has submitted the affirmed medical report of Anthony Spataro, M. D. a Diplomate of the American Board of Orthopedic Surgery, dated November 16, 2005, who examined plaintiff on said date and reviewed the MRI report and Xrays taken in July 2004. Dr. Spataro opined that plaintiff ambulates with a normal heel/toe gait, has full flex, lateral bending and rotatory motion of the cervical spine, has negative Sperlings maneuver, can abduct his left shoulder to 120 degrees and flex 120 degrees, can reach behind his back to the midline with his left shoulder, no atrophy or deformity of the shoulder, no tenderness and is neurovascularly intact in both upper extremities. Dr. Spataro concluded that there is no orthopedic disability, that no further treatment is indicated including physical therapy and that plaintiff' s status is post sprain cervical spine and left shoulder. The Law In viewing motions for summary judgment, it is well settled that summary judgment is a drastic remedy which may only be granted where there is no clear triable issue of fact (see, Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131, 320 NE2d 853 (C. A. 1974);
, " Mosheyev v Pilevsky, 283 AD2d 469 725 NYS2d 206 (2 Dept. 2001). Indeed (e)ven the color of a triable issue, forecloses the remedy Rudnitsky v Robbins 191 AD2d 488 594 NYS2d 354 (2 Dept. 1993)). Moreover "(i)t is axiomatic that summary judgment requires issue finding rather than issue-determination and that resolution of issues of credibility is not appropriate (Greco v Posilico 290 AD2d 532, 736 NYS2d 418 (2 Dept. 2002); Judice v DeAngelo 272 AD2d 583, 709 NYS2d 817 (2 Dept. 2000); see also S. CapelinAssociates, Inc. v Globe Mfg. Corp. 34 NY2d 338 357 NYS2d 478 313 NE2d 776 (C. A.1974)). Further, on a motion for summary judgment, the submissions of the opposing party s pleadings must be accepted as true (see Glover v City of New York 298 AD2d 428 748 NYS2d 393 (2 Dept. 2002)). As is often stated, the facts must be viewed in a light most favorable to the non-moving party. (See Mosheyev v Pilevsky, supra). The burden on the moving party for summary judgment is to demonstrate a prime facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue offact (Ayotte v Gervasio 81 NY2d 1062 601 NYS2d 463 619 NE2d 400 (C. A1993); Drago v King, 283 AD2d 603, 725 NYS2d 859 (2 Dept. 2001)). 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 Ellot 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088 (C. 1982)). On the present motion, 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 AD2d 728 511 NYS2d 603 (1 sl Dept. 1986), affirmed 69 NY2d 701, 512 NYS2d 364 (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, supra; Lopez v Senatore 65 NY2d 1017 494 NYS2d 101 (1985J). Discussion After a careful reading of the submissions herein, it is the Court' s judgment that defendant' s evidence is sufficient to establish a prima facie case that plaintiff' s injuries are not serious" within the meaning of Insurance Law 951 02(d), and, therefore, the burden shifts to plaintiff to come forward with some evidence of a "serious injury" in order to survive the motion (Gaddy v Eyler 79 NY2d 955, 582 NYS2d 990, 591 NE2d 1176 (C. 1992J). In opposition to the motion, plaintiff submits the affirmation of his attorney who reiterates the factual chronology contained in plaintiff' s deposition transcripts and who annexes the unaffirmed report from Southside Hospital Emergency Department and the unaffirmed and unsigned report of plaintiff' s MRI. The affirmation of plaintiff' s counsel is without evidentiary value on a motion for summary judgment Associates Leasing Inc. 222 AD2d 1066, 635 NYS2d 878 (4 (Green v Gloede & Dept. 1995J). Moreover neither of said medical reports are in admissible form on this motion for summary judgment. See Pagano v Kingsbury, 182 AD3d 268, 587 NYS2d 692 ( 1992); Holder v Brown 18 AD 3d 815, 796 NYS2d 641 (2 Dept. 2005). Nor has plaintiff submitted competent medical evidence based upon objective findings to establish a causal relationship between plaintiff's injuries and the motor vehicle accident at issue which is sufficient to raise a triable issue of fact as to whether plaintiff sustained a serious injury.
Kivlan v Acevedo" 17 AD3d 321 792 NYS2d 573 (2 Dept. 2005). No doctors report is submitted that causally relates the automobile accident in May 2004 to plaintiff' s collapse at work one and a half months thereafter and no competent medical evidence is submitted whatsoever, to demonstrate that plaintiffwas unable to perform substantially all of his daily activities for not less than 90 of the 180 days immediately following the accident because of a medically determined injury or impairment of a non- permanent nature (Mohamed v Siffrain 19AD3d 561, 7997 NYS2d 532 (2 Dept. 2005); Uao v Festa 18AD3d 448 794 NYS2d 905 (2 Dept. 2005); Kivlan, supra; Kearse v New York City Transit Authority, 16 AD3d 45 789 NYS2d 281 (2 Dept. 2005)). Nor is an affidavit of the plaintiff submitted who has personal knowledge of the facts. Based on the foregoing, the Court is compelled to conclude that plaintiff has not met his burden of raising a triable issue of fact as to whether he sustained the requisite "serious injury. See, Reeves v Scopaz 227 AD2d 606 643 NYS2d 620 (2 Dept. 1996). Accordingly, defendant's motion for summary judgment dismissing the complaint must be granted. Conclusion Based on the foregoing, it is hereby ORDERED that defendant's motion for an order dismissing the complaint on the ground that plaintiff do not satisfy the "serious injury" threshold requirement of Section 5102(d) of the Insurance Law of the State of New York and, therefore, has no cause of action under Section 5104(a) of the Insurance Law is granted. All further requested relief not specifically granted is denied.
.. \.t " This constitutes the decision and order of the Court. Dated: July 5, 2006 WILLI. M R. LaMARCA, J. TO: Charles A. Cerussi, Esq. Attorney for Plaintiff 545 Eighth Avenue, Suite 401 New York, NY 10018 Russo & Apoznanski, Ess. Attorneys for Defendant 875 Merrick Avenue Westbury, NY 11590 dellaporta-cnningham #01/dismiss EN-rERE0 COUN JUl '\ 2 luuo SS!c ' coun-r SOff