DANN v. YEH (2008)

Plaintiff commenced this action seeking damages for injuries he allegedly sustained while he was a passenger in a motor vehicle operated by defendant Christopher E. Dann. Christopher Dann's vehicle rear-ended a vehicle and was then rear-ended by a vehicle operated by defendant Noelle M. Yeh. Supreme Court properly granted defendants' respective motions for, inter alia, summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of the significant limitation of use and 90/180 categories set forth in Insurance Law § 5102(d).

 With respect to the significant limitation of use category, defendants submitted the report of a chiropractor who examined plaintiff and concluded that plaintiff's cervical and lumbar range of motion was within normal limits, that all cervical orthopedic testing was negative, and that plaintiff had sustained a cervical sprain/strain as a result of the accident, which had been resolved.  “Defendant[s] thereby established that plaintiff sustained only a mild injury as a result of the accident and that there was no objective medical evidence that plaintiff sustained a significant ․ injury” (Beaton v. Jones, 50 A.D.3d 1500, 1501, 857 N.Y.S.2d 384;  see Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Clark v. Perry, 21 A.D.3d 1378, 801 N.Y.S.2d 641;  Dingeldey v. Kuebler, 15 A.D.3d 961, 789 N.Y.S.2d 791).   In opposition, plaintiff failed to raise a triable issue of fact with respect to that category.   The affirmations of plaintiff's treating neurologist and treating physician are insufficient to raise a triable issue of fact because they fail to set forth the tests conducted to support the conclusions in the affirmations and whether those tests were objective in nature (see Burke v. Carney, 37 A.D.3d 1107, 829 N.Y.S.2d 358;  Calucci v. Baker, 299 A.D.2d 897, 898, 750 N.Y.S.2d 675).   Further, plaintiff's neurologist failed to “provide either ‘a numeric percentage of ․ plaintiff's loss of range of motion’ or a ‘qualitative assessment of ․ plaintiff's condition’ ” (Parkhill v. Cleary, 305 A.D.2d 1088, 1089, 759 N.Y.S.2d 262, quoting Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  see Robinson v. Polasky, 32 A.D.3d 1215, 1216, 822 N.Y.S.2d 183), nor did plaintiff's neurologist “ ‘compare[ ] the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system’ ” (Parkhill, 305 A.D.2d at 1089, 759 N.Y.S.2d 262, quoting Toure, 98 N.Y.2d at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  see Jaromin v. Northrup, 39 A.D.3d 1264, 1265, 833 N.Y.S.2d 813).

In addition, we agree with defendants that the conclusions of plaintiff's treating physician appear to have been based upon her review of unsworn MRI and CT scan reports, upon which plaintiff cannot rely (see Goldin v. Lee, 275 A.D.2d 341, 342, 712 N.Y.S.2d 154;  Merisca v. Alford, 243 A.D.2d 613, 614, 663 N.Y.S.2d 853).   The physician also appears to rely on plaintiff's subjective complaints of pain, because the physician's own notes attached to the affirmation and incorporated therein are replete with statements that plaintiff exhibited full range of motion with no objective evidence of neck or back injury (see Toure, 98 N.Y.2d at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Jaromin, 39 A.D.3d at 1265, 833 N.Y.S.2d 813;  Cullen v. Treen, 30 A.D.3d 1086, 1087, 816 N.Y.S.2d 799;  Howard v. Rogalski, 291 A.D.2d 909, 738 N.Y.S.2d 278).   Finally, with respect to the significant limitation of use category, the affidavit of plaintiff's attorney lacks evidentiary value (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718), and the unsworn medical reports attached thereto “fail to raise an issue of fact because they are not in admissible form” (Butera v. Woodhouse, 267 A.D.2d 1039, 700 N.Y.S.2d 336;  see Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76).

 Defendants also met their initial burden of establishing as a matter of law that plaintiff did not sustain a serious injury under the 90/180 category by submitting the deposition testimony of plaintiff establishing that she was disabled for only 85 days out of the 180 days following the accident (see Moore v. Gawel, 37 A.D.3d 1158, 1159, 830 N.Y.S.2d 417).   Plaintiff's submissions in opposition to the motions fail to raise a triable issue of fact with respect to that category of serious injury.   We note in particular that the affirmation and office notes of plaintiff's treating physician fail to identify any objective medical evidence establishing that the accident caused the alleged limitations on plaintiff's activities (see Beaton, 50 A.D.3d at 1502, 857 N.Y.S.2d 384;  Calucci, 299 A.D.2d at 898, 750 N.Y.S.2d 675).   Further, the self-serving affidavit of plaintiff stating that he was unable to return to work and could no longer participate in many recreational activities as a result of his injuries is insufficient to raise a triable issue of fact, in the absence of “a physician's affidavit substantiating the existence of a medically determined injury which caused the alleged limitation of [his] activities” (Jackson v. New York City Tr. Auth., 273 A.D.2d 200, 201, 708 N.Y.S.2d 469;  see Kauderer v. Penta, 261 A.D.2d 365, 366, 689 N.Y.S.2d 190).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: