Athan v Elfassy (2011 NY Slip Op 51069(U))

Athan v Elfassy

2011 NY Slip Op 51069(U) [31 Misc 3d 1241(A)]

Decided on June 1, 2011

Supreme Court, Nassau County

Sher, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Papers Numbered

Notice of Motion, Affirmation and Exhibits1

Affirmation in Opposition and Exhibits2

Reply Affirmation3

Upon the foregoing papers, it is ordered that the motion is decided as follows:

Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting her summary judgment and dismissing the Verified Complaint of the plaintiffs in its entirety on the ground that the infant plaintiff, Tina Athan ("infant plaintiff") did not sustain a "serious injury" in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiffs oppose defendant's motion.

The above entitled action stems from personal injuries allegedly sustained by the infant plaintiff as a result of an automobile accident with defendant which occurred on July 6, 2009, at or near the intersection of Gavrin Boulevard and Franklin Avenue, Franklin Square, County of Nassau, State of New York. At the time of the accident, the infant plaintiff was a pedestrian, crossing in the middle of Gavrin Boulevard, when she was struck by a blue Saturn owned and operated by defendant. The infant plaintiff contends that she looked both ways before crossing the street, but was then hit by defendant's automobile - her right leg being struck by the automobile's right back tire. The infant plaintiff states that, upon impact, she flew into the air and fell to the ground, bleeding from her right leg and left arm.

As a result of the accident, the infant plaintiff claims that she sustained the following injuries: [*2]

Plaintiffs commenced the action with service of a Summons and Verified Complaint on February 24, 2010. Issue was joined on April 19, 2010.

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth Century- Fox Film Corp., 3 NY2d 395, 165 N.Y.S.2d 498 (1957); Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 (1986); Zuckerman v. City of New York, 49 NY2d 557, 427 N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 AD2d 660, 528 N.Y.S.2d 1020 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 [*4]NY2d 1065, 416 N.Y.S.2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); Olan v. Farrell Lines Inc., 64 NY2d 1092, 489 N.Y.S.2d 884 (1985).

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, 49 NY2d 557, 427 N.Y.S.2d 595 (1980), supra. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. See Sillman v. Twentieth Century- Fox Film Corp. , 3 NY2d 395, 165 N.Y.S.2d 498 (1957), supra. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. See Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 525 N.Y.S. 2d 793 (1988).

Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. Albany County, 50 NY2d 247, 428 N.Y.S.2d 665 (1980); Daliendo v. Johnson, 147 AD2d 312, 543 N.Y.S.2d 987 (2d Dept. 1989).

Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a "serious injury" as enumerated in Article 51 of the Insurance Law § 5102(d). See Gaddy v. Eyler, 79 NY2d 955, 582 N.Y.S.2d 990 (1992). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a "serious injury." See Licari v. Elliott, 57 NY2d 230, 455 N.Y.S.2d 570 (1982).

In support of a claim that the plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physicians or the unsworn reports of the plaintiff's examining physicians. See Pagano v. Kingsbury, 182 AD2d 268, 587 N.Y.S.2d 692 (2d Dept. 1992). However, unlike the movant's proof, unsworn reports of the plaintiff's examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. See Grasso v. Angerami, 79 NY2d 813, 580 N.Y.S.2d 178 (1991).

Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff's injury. The Court of Appeals in Toure v. Avis Rent-a-Car Systems, 98 NY2d 345, 746 N.Y.S.2d 865 (2002) stated that a plaintiff's proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests. However, these sworn tests must be paired with the doctor's observations during the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports. See Gonzalez v. Vasquez, 301 AD2d 438, 754 N.Y.S.2d 7 (1st Dept. 2003).

Conversely, even where there is ample proof of a plaintiff's injury, certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of a plaintiff's complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury. See Pommells v. Perez, 4 NY3d 566, 797 N.Y.S.2d 380 (2005). [*5]

Plaintiffs claim that as a consequence of the above described automobile accident with defendant, the infant plaintiff has sustained serious injuries as defined in New York State Insurance Law § 5102(d) and which fall within the following statutory categories of injuries:

2) a permanent consequential limitation of use of a body organ or member; (Category 7)

To meet the threshold regarding significant disfigurement, the law is well settled that the test for determining when an injury is a significant disfigurement is whether or reasonable person viewing the plaintiff's body in its altered state would regard the condition as unattractive, objectionable or as the object of pity or scorn. See Spevak v. Spevak, 213 AD2d 622, 624 N.Y.S.2d 232 (2d Dept. 1995); Maldonado v. Piccirilli, 70 AD3d 785, 894 N.Y.S.2d 119 (2d Dept. 2010); Lynch v. Iqbal, 56 AD3d 621, 868 N.Y.S.2d 676 (2d Dept. 2008); Sirmans v. Mannah, 300 AD2d 465, 752 N.Y.S.2d 359 (2d Dept. 2002). Small, well-healed scars do not constitute significant disfigurement within the meaning of the no-fault statute. See Santos v. Taveras, 55 AD3d 405, 866 N.Y.S.2d 43 (1st Dept. 2008).

To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. See Gaddy v. Eyler,79 NY2d 955, 582 N.Y.S.2d 990 (1992); Licari v. Elliot, 57 NY2d 230, 455 N.Y.S.2d 570 (1982). A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute. See Licari v. Elliot, supra. A claim raised under the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories can be made by an expert's designation of a numeric percentage of a plaintiff's loss of motion in order to prove the extent or degree of the physical limitation. See Toure v. Avis, supra. In addition, an expert's qualitative assessment of a plaintiff's condition is also probative, provided: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiff's limitation to the normal function, purpose and use of the affected body organ, member, function or system. See id.

Finally, to prevail under the "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" category, a plaintiff must demonstrate through competent, objective proof, a "medically determined injury or impairment of a non-permanent nature" (Insurance Law § 5102(d)) "which would have caused the alleged limitations on the plaintiff's daily activities." See Monk v. Dupuis, 287 AD2d 187, 734 N.Y.S.2d 684 (3d Dept. 2001). A curtailment of the plaintiff's usual activities must be "to a great extent rather than some slight curtailment." See [*6]Licari v. Elliott, supra at 236.

With these guidelines in mind, the Court will now turn to the merits of defendant's motion. In support of her motion, defendant submits the pleadings, plaintiffs' Verified Bill of Particulars, plaintiffs' Supplemental Verified Bill of Particulars, the transcript of the infant plaintiff's examination before trial ("EBT") testimony, the infant plaintiff's Winthrop Hospital Emergency Room records from July 6, 2009, the record of Dr. Atluru dated July 30, 2009, the reports of Richard Silvergleid, M.D., of North Shore Open MRU, who performed the infant plaintiff's cervical spine MRI on August 28, 2008, and the infant plaintiff's lumbar spine MRI on September 4, 2009 and the affirmed report of Isaac Cohen, M.D., who performed an independent orthopedic medical examination of the infant plaintiff on December 1, 2010.

When moving for dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a serious injury. See Gaddy v. Eyler, 79 NY2d 955, 582 N.Y.S.2d 990 (1992).

Defendant's expert, Dr. Cohen, fails to address plaintiffs' claim that the infant plaintiff was unable to perform substantially all of the acts which constitute her usual and customary daily activities for ninety out of one hundred eighty days following the accident. The Court will find that a defendant has failed to meet her prima facie burden on a summary judgment motion, such as the instant one, where, as here, a plaintiff alleges to have suffered serious injury under this category and defendant's medical experts do not address this allegation in their affirmations. See Ballard v. Cunneen, 76 AD3d 1037, 908 N.Y.S.2d 443 (2d Dept. 2010); Pinder v. Salvatore, 69 AD3d 823, 894 N.Y.S.2d 76 (2d Dept. 2010); Nemhard v. Delatorre, 16 AD3d 390, 791 N.Y.S.2d 144 (2d Dept. 2005); Sayers v. Hot, 23 AD3d 453, 805 N.Y.S.2d 571 (2d Dept. 2005); Perez v. Ali, 23 AD3d 363, 804 N.Y.S.2d 115 (2d Dept. 2005); Peplow v. Murat, 304 AD2d 633 (2d Dept. 2003).

Where a defendant fails to demonstrate that she has met her prima facie burden, the Court will deny the motion for summary judgment regardless of the sufficiency of the opposition papers. See Ayotte v. Gervasio, 81 NY2d 1062, 601 N.Y.S.2d 463 (1993); David v. Bryon, 56 AD3d 413, 867 N.Y.S.2d 136 (2d Dept. 2008); Barrera v. MTA Long Island Bus, 52 AD3d 446, 859 N.Y.S.2d 483 (2d Dept. 2008); Breland v. Karnak Corp., 50 AD3d 613, 854 N.Y.S.2d 765 (2d Dept. 2008).

Accordingly, defendant's motion for an order pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York granting her summary judgment and dismissing plaintiffs' complaint in its entirety is hereby DENIED.

All parties shall appear for Trial in Nassau County Supreme Court, Differentiated Case Management Part (DCM) at 100 Supreme Court Drive, Mineola, New York, on June 22, 2011, at 9:30 a.m.