Thompson v. Abbasi

OPINION OF THE COURT Marlow, J. In the context of this appeal, we engage in the perennial debate over the issue of whether a plaintiff’s evidence of personal injury meets the statutory threshold set by Insurance Law § 5102 (d), “an elusive standard that all too frequently escapes facile and final resolution” (Brown v Achy, 9 AD3d 30, 31 [2004]). Consequently, we respectfully and simply urge that the “serious injury” threshold be the subject of High Court interpretation or statutory reform aimed at drawing a brighter line between those cases where a plaintiffs injuries are truly and verifiably “serious” within the meaning and intent of section 5102 (d), and those which are neither. One need only examine the scores of repetitive judicial and legal debates on this issue to conclude reasonably and quickly that the status quo is a diversion of precious court resources which is correctable in the interests of fairness, justice and efficiency. Defendant N&A Taxi established a prima facie entitlement to summary judgment by submitting evidence demonstrating that plaintiff did not sustain a serious injury arising from a car accident involving the parties (see Insurance Law § 5102 [d]; Licari v Elliott, 57 NY2d 230 [1982]). Specifically, N&A submitted affirmed reports of two medical doctors who, upon examining plaintiff, concluded that, although there were positive MRI findings of plaintiffs cervical spine, plaintiff had normal range of motion in his cervical spine as well as his lumbosacral spine and wrists (see Noble v Ackerman, 252 AD2d 392 [1998] [existence of herniated disc does not per se constitute serious injury]). In addition, N&A submitted plaintiffs bill of particulars (see Dan v Luke, 237 AD2d 165 [1997]), which indicates that plaintiff missed only one week of work following the accident. N&A thus met its initial burden that plaintiff did not sustain an injury — 97 — which prevented him from performing substantially all his customary activities during 90 of the first 180 days following the accident. The burden then shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law (see Gaddy v Eyler, 79 NY2d 955 [1992]). Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint (see Licari v Elliott, 57 NY2d 230 [1982], supra). Plaintiff has not met his burden. Accordingly, we affirm the motion court’s dismissal of the complaint. Initially, we note that the motion court erred in rejecting plaintiffs unsworn MRI reports submitted in opposition to the dismissal motion. N&A had presented plaintiffs MRI results through its experts’ affirmations in support of its motion for summary judgment. Therefore, these results were properly before the motion court (see Brown v Achy, 9 AD3d 30 [2004], supra; Gonzalez v Vasquez, 301 AD2d 438 [2003]; see also Ayzen v Melendez, 299 AD2d 381 [2002]; Pietrocola v Battibulli, 238 AD2d 864 [1997]). Moreover, plaintiffs doctor averred that he personally reviewed the film and reports (see Dioguardi v Weiner, 288 AD2d 253 [2001]; Lesser v Smart Cab Corp., 283 AD2d 273 [2001]; cf. Sherlock v Smith, 273 AD2d 95 [2000]). Notwithstanding that plaintiffs MRI reports were properly reviewable on summary judgment, positive MRI findings alone are insufficient to raise an issue of fact (see Noble v Ackerman, 252 AD2d 392 [1998], supra). In order to raise a triable issue of fact, plaintiff must demonstrate a limitation of range of motion sustained by objective medical findings that are “based on a recent examination of the plaintiff’ (Grossman v Wright, 268 AD2d 79, 84 [2000]; cf. Verderosa v Simonelli, 260 AD2d 293 [1999] [doctor’s opinion of significant limitations based upon recent personal examination of plaintiff]). Other than an initial evaluation of plaintiff on December 3, 1999, eight days after the accident, by a neurologist referred to plaintiff by his chiropractor, a follow-up visit 2V2 years later, the MRIs of plaintiff’s cervical spine and left wrist, and plaintiffs own allegation in his affidavit that he “attended physical therapy” for about five months, the record is devoid of any competent evidence of plaintiffs treatment, need for treatment, or why his alleged treatment ended after five months. The neurologist, Dr. Gutstein of Neuro Care Associates, EC., averred that he conducted an examination of plaintiff on — 98 — December 3, 1999. However, plaintiff stated that Dr. Velasquez of Neuro Care Associates, EC., conducted the initial examination and evaluation. In any event, regardless of who performed the initial examination, plaintiffs submissions are insufficient to raise a triable issue of fact. Dr. Gutstein averred that he performed a straight-leg raising test in which plaintiff demonstrated a 70% restriction of range of motion on the left side. However, plaintiff submitted no MRI results of his lumbar spine. Moreover, upon re-evaluation 272 years later, on July 5, 2002, Dr. Gutstein performed no straight-leg raising tests or any other tests relating to plaintiffs lumbar spine, nor did the doctor conclude that plaintiff sustained any back injury as a result of the subject car accident. Therefore, plaintiff has failed to set forth any objective medical finding based upon a recent examination which raises a triable issue of fact regarding a serious injury, i.e., significant or permanent, to his back (see Grossman, 268 AD2d at 84, supra). In light of plaintiffs otherwise lack of proof in this regard, we need not reach the question whether, in the wake of Toure v Avis Rent A Car Sys. (98 NY2d 345 [2002]), straight-leg raising tests alone can ever constitute objective evidence of serious injury (see Brown, 9 AD3d at 33 [Court need not reach issue whether straight-leg raising tests alone would be sufficient under Toure, and whether our own past decisions (see e.g. Aguilar v N.Y.C. Water Works, 298 AD2d 245 [2002]; Adetunji v U-Haul Co. of Wis., 250 AD2d 483 [1998]) are consistent with Toure’s reasoning]). In addition to this deficiency in proof, at the initial examination Dr. Gutstein failed to report any range-of-motion restrictions regarding plaintiffs cervical spine. Thus, despite the positive MRI findings as to plaintiffs cervical spine two months after the accident, there are no objective findings contemporaneous with the accident showing any initial range-of-motion restrictions on plaintiffs cervical spine (see Pajda v Pedone, 303 AD2d 729 [2003]) or any detailed explanation for their omission. Consequently, there is a failure of proof relating to the subsequent range-of-motion restrictions in the cervical spine 272 years after the accident. The dissent’s assertion that we require plaintiff to undergo immediate objective examinations in all cases in order to successfully carry the burden to prove a serious injury, misses the key fact that this plaintiff waited over 272 years to uncover evidence of the limitations to his neck which he now claims meets — 99 — the threshold. The proof gives us no way to determine that the July 2002 alleged limitation was occasioned by the November 1999 accident, as there is no proof of what plaintiffs post-accident limitations were, if any. By “post-accident” we mean limitations suffered within a reasonable time after the accident under all the relevant circumstances. Dr. Gutstein’s conclusory assertion, more than 21/2 years after the accident, that “it is my opinion that the motor vehicle accident of November [25], 1999 was a competent producing cause of these injuries,” without any detail, rationale, or reasonable explanation, cannot serve to supply what plaintiffs objective proof clearly lacks. On this particular record it appears obvious to us that it is general and boilerplate language tailored simply to meet decisional and/or statutory requirements (see Lopez v Senatore, 65 NY2d 1017 [1985]). The record is also devoid of any competent evidence of plaintiffs treatment, other than two visits to a neurologist 21/s years apart, which appear to be for examination only. We have held that a gap in treatment goes to the weight of the evidence, not its admissibility (see Brown, 9 AD3d at 33). Here, however, there is not just a gap in treatment, but, apparently, a total lack of competent proof of any treatment whatsoever. While plaintiff himself refers to a visit to his chiropractor the day after the accident, a visit to an orthopedic surgeon, and a five-month course of physical therapy between November 1999 and April 2000, he inexplicably has provided no competent supporting documentation of this “medical treatment,” as required by Friends of Animals v Associated Fur Mfrs. (46 NY2d 1065 [1979]). By way of explanation, plaintiff himself claimed his chiropractor advised him that he attained the maximum potential in terms of therapy, which provided only temporary relief. However, plaintiffs reliance on his chiropractor’s claimed assertion is rank hearsay and therefore insufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). In addition, plaintiffs self-serving explanation that he stopped going to physical therapy because it provided only temporary relief is “entitled to little weight, and [is] certainly insufficient to raise a triable issue of fact” (Zoldas v Louise Cab Corp., 108 AD2d 378, 383 [1985]; compare Toure, 98 NY2d at 355 [plaintiff established serious injury where plaintiff’s doctor concluded that injuries were permanent and there was no benefit to continued treatment]; see also Brown, 9 AD3d at 34 [plaintiffs chiropractic opinion that plaintiff was treated until she reached — 100 — maximal medical improvement sufficient to explain gap in treatment]). As for the dissent’s assertion that we “impl[y] that a cessation of treatment conclusively demonstrates an absence of serious injury as a matter of law,” we intend no such breathtaking implication, simply because the problem is not the mere absence or ending of treatment. Rather, the problem is born of the absence of any related explanation for the lack or cessation of treatment and, beyond that, an absence of adequate medical proof in this case. We also respectfully disagree with our dissenting colleague’s statement that the record contains an adequate explanation for plaintiff’s discontinuation of physical therapy. Plaintiffs only proof consists of his hearsay claim that “Dr. Kazdan . . . advised me that I had attained the maximum potential in terms of therapy and suggested that I continue my exercises and restriction of activities at home and at work.” First, as noted above, plaintiff’s assertion is incompetent hearsay and, for that reason, must be disregarded (see Zuckerman v City of New York, 49 NY2d 557 [1980], supra). Second, its language is too general and obviously tailored to meet statutory and decisional requirements in any event (see Lopez v Senatore, 65 NY2d 1017 [1985], supra). Moreover, in this case there is no competent proof of any treatment by a health care professional which is related to any condition allegedly caused by this accident. Even plaintiffs own affidavit gives us no details or frequency of treatment, and is unaccompanied by any description of plaintiff’s alleged treatment by, or associated opinions of the physical therapist he claims he saw. On appeal, plaintiff claims that he has a “left wrist injury.” Plaintiff offers no argument, legal or factual, to persuade us how this meets the threshold for serious injury under the Insurance Law. In addition, plaintiffs neurologist’s reliance on what plaintiff informed him was his orthopedist’s diagnosis (i.e., “traumatic synovitis left wrist”) is “clearly hearsay” (Zoldas, 108 AD2d at 383), is not supported by the MRI of plaintiffs left wrist, and lacks probative value on summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980], supra). Finally, plaintiff has failed to raise a triable issue of fact as to his 90/180-day claim. When construing the statutory definition of a 90/180-day claim, the words “substantially all” should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than — 101 — some slight curtailment (see Gaddy v Eyler, 79 NY2d 955 [1992], supra-, Licari v Elliott, 57 NY2d 230 [1982], supra; Berk v Lopez, 278 AD2d 156 [2000], lv denied 96 NY2d 708 [2001]). In light of plaintiffs admission that he only missed one week of work, his unsubstantiated claim that his injuries prevented him from performing substantially all of the material acts constituting his customary daily activities during at least 90 of the first 180 days following the accident is insufficient to raise a triable issue of fact (see Graham v Shuttle Bay, 281 AD2d 372 [2001]; Hernandez v Cerda, 271 AD2d 569 [2000]; Ocasio v Henry, 276 AD2d 611 [2000]). In addition, plaintiffs affidavit in opposition, in which he describes a curtailment of various activities based on restriction of motion and at times “excruciating” pain in his neck, is not supported by his earlier deposition testimony, annexed to his affidavit, in which he only describes back pain while jogging. Plaintiffs self-serving affidavit, prepared in opposition to defendant’s summary judgment motion, was clearly tailored to avoid the consequences of his earlier testimony, and is therefore insufficient to raise an issue of fact (see Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]). Given plaintiffs prompt return to work and the absence of any medically objective evidence (see Toure, 98 NY2d at 357), his subjective claims of pain and his unsubstantiated claim of inability to perform his customary daily activities are insufficient to raise a triable issue of fact (see Copeland v Kasalica, 6 AD3d 253 [2004]). Accordingly, the order of the Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about July 9, 2003, which granted the motion of defendant N&A Taxi for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d), should be affirmed, without costs.