JOSEPH v. FORMAN (2007)

This case involves a motor vehicle accident that occurred on August 12, 2005, resulting in plaintiff's claim of serious injury as defined under Insurance Law § 5102(d).

 Movants have sustained their initial burden of submitting evidentiary proof in admissible form to warrant the objective findings that plaintiff has not suffered a serious injury, including the affirmed reports of Doctors Frank Hudak and Steven Mendelsohn, who concluded that there were no positive objective physical findings that plaintiff sustained any substantial or permanent injuries or disability as a result of the subject accident (see Grossman v. Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233;  Guzman v. Paul Michael Management, 266 A.D.2d 508, 698 N.Y.S.2d 719).

The Court also finds that defendants demonstrated a prima facie entitlement to judgment under the 90/80 days threshold category.   Plaintiff's bill of particulars specifically claimed injury under this category as well as the permanent consequently limitation of use and significant limitation of use categories.

Defendants' expert radiologist, Dr. Mendelsohn, completely refuted plaintiff's right knee MRI report which concluded that plaintiff had a tearing of the medial meniscus.   He agreed, however, with the finding based on the MRI taken of plaintiff's lumbar spine that there was no focal disc herniation, Dr. Mendelsohn determined that instead plaintiff had mild age-related degenerative changes to the lower lumbar spine.

Although defendants' doctors did not expressly state an opinion as to whether plaintiff suffered an injury under the 90/180 days threshold category, defendants submitted a copy of plaintiff's deposition transcript taken before his Independent Medical Examination to evince plaintiff returned to work after two weeks and that plaintiff's job responsibilities changed from driver to dispatcher only because his coworker was fired.   Plaintiff admitted that there were no changes in his activities after the accident.

The First and Fourth Departments have both held that a defendant can meet his or her prima facie proof under this category by submitting excerpts from a plaintiff's deposition testimony (Robinson v. Polasky, 32 A.D.3d 1215, 822 N.Y.S.2d 183;  Lopez v. Carpio-Ceballo, 20 A.D.3d 336, 799 N.Y.S.2d 191).   To the contrary, the Second Department has ruled that defendants' doctors must specifically address this category in their opinions (Jocelyn v. Singh Airport Service, 35 A.D.3d 668, 826 N.Y.S.2d 434;  Talabi v. Diallo, 32 A.D.3d 1014, 820 N.Y.S.2d 904;  Sayers v. Hot, 23 A.D.3d 453, 805 N.Y.S.2d 571).

 This Court determines that when a plaintiff makes a claim under this category in a bill of particulars and that claim is contradicted by plaintiff's own testimony taken before the Independent Medical Examinations are conducted, a plaintiff has effectively abandoned it for purposes of defendant's initial burden of proof on a threshold motion.

The Court reaches this conclusion because, while a bill of particulars is an amplification of a pleading designed to particularize those claims and alert a defendant over which claims plaintiff will have the burden of proof at trial, the bill's demand containing the questions plaintiff must answer is codified by CPLR § 3043(a).   This in turn leads to an almost rote assertion at this early stage of the action of the threshold troika of the 90/180 days, significant limitation and permanent consequential categories in order to avoid preclusion later on (cf. Siegel, New York Practice Fourth Edition, § 238 and § 241, ftnte 2).

It is not until disclosure takes place that defendant's and often plaintiff's counsel learn for the first time a particular claim is without foundation or cannot be pursued.   Plaintiff's own sworn acknowledgments during an examination before trial reveal the deficiency.   This allows the defendants, as well as plaintiff, to focus on plaintiff's arguably meritorious contentions (Id., § 358)

CPLR § 3117(a)(2) allows the use of a deposition for any purpose by an adverse party, including its use as evidence-in-chief in a summary judgment motion (McKinney's CPLR C3117:3).   Therefore, the inclusion of plaintiff's deposition in support of defendants' motion to dismiss, standing alone, should be sufficient to raise a prima facie entitlement to judgment even when the defendant acknowledges that plaintiff suffered an injury due to the accident, albeit slight or resolved.

A medical opinion by the defendant at this juncture should not be necessary because this threshold category is based essentially upon a two-pronged test, causation being assumed, of objective medical proof along with some admissible evidence demonstrating how the injury adversely affected substantially all of plaintiff's usual and customary daily activities of life (DiNunzio v. Suffolk, 256 A.D.2d 498, 682 N.Y.S.2d 406).

At trial plaintiff must satisfy both aspects with evidentiary proof (see June v. Gonet, 298 A.D.2d 811, 750 N.Y.S.2d 143;  PJI 2:88G).   This is why case law has determined that an injury standing alone does not necessarily establish a serious injury as defined by the Insurance Law (see generally, Toure v. Avis Rent A Car Systems, 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197).

It follows, then, that defendants need disprove only one aspect of the category in order to meet their burden of proof.   This can be done through plaintiff's own testimony, regardless of what is alleged in the bill of particulars.

To hold otherwise is to place defendants at a tremendous disadvantage vis-a-vis a summary motion and force defendants to proffer a medical opinion as to plaintiff's condition shortly following the accident after examining a plaintiff well after the accident.   Rendering a competent opinion would be difficult, if not impossible.   Indeed, that is exactly one of the arguments maintained by plaintiff in the case at bar (see Tuna v. Babendererde, 32 A.D.3d 574, 819 N.Y.S.2d 613).

 On the other hand, under ordinary circumstances a plaintiff's medical proof should be contemporaneous with the accident (Cooper v. Dunn, E.D.N.Y., 2001 WL 138864;  e.g., Pierre v. Nanton, 279 A.D.2d 621, 719 N.Y.S.2d 706;  cf. Schaefer v. Pierce, 205 A.D.2d 521, 613 N.Y.S.2d 53), and it is without question that any medical opinion based upon incomplete or false information is without probative value (see generally, Kallicharan v. Sooknanan, 282 A.D.2d 573, 723 N.Y.S.2d 376;  Ventra v. United States, 121 F.Supp.2d 326).

Consequently, had plaintiff revealed to his physician in the first instance that the accident did not affect his daily activities, any medical opinion finding that plaintiff suffered a serious injury under this category would be mere speculation as a matter of law (cf. Bell v. Rameau, 29 A.D.3d 839, 814 N.Y.S.2d 534).

Defendants are entitled to rely on this fundamental rule of law without having to prove a negative through a medical expert.

Finally, if the trial court is charged with weeding out frivolous claims (Toure v. Avis, supra) it should be able to reach its own conclusion without benefit of a medical opinion regarding an assessment of plaintiff's daily activities.   Then, at that juncture, plaintiff still will be provided the opportunity to support the claim upon competent objective medical evidence that may be in his possession.

In any event, in the case at bar, defendants' expert totally refuted the conclusions contained in the plaintiff's MRI reports.   That, in the undersigned's estimation, is the functional equivalent of an express statement that there is no objective medical evidence supporting plaintiff's theory under the 90/180 days threshold category.

 Accordingly, since the Court finds the defendants have sustained their initial burden, plaintiff must now come forward with some admissible evidence demonstrating a serious injury within the meaning of the No-Fault Law (Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   This he has failed to do.

 In support of his opposition, plaintiff submits several unaffirmed medical records which the Court may not consider (Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Holder v. Brown, 18 A.D.3d 815, 796 N.Y.S.2d 641).

In addition, Dr. Dov Berkowitz' affirmed letter dated April 16, 2007 fails to explain the gap in treatment of almost 1-1/2 years (Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Franchini v. Palmieri, 1 N.Y.3d 536, 775 N.Y.S.2d 232, 807 N.E.2d 282;  Ali v. Vasquez, 19 A.D.3d 520, 797 N.Y.S.2d 528).   Plaintiff's high blood pressure noted at his last examination, occurring so long ago, is not a sufficient explanation for the length of the gap.

Furthermore, Dr. Berkowitz affirmation states plaintiff can fully extend his leg and his flexion is about 120 degrees albeit with complaints of pain.   Dr. Berkowitz' report dated October 3, 2005 noted flexion at 100 degrees.   Neither the letter/affirmation or the unaffirmed report sets forth the normal range of motion for comparison purposes (see Yashayev v. Rodriguez, 28 A.D.3d 651, 812 N.Y.S.2d 367) or expresses a qualitative analysis regarding the significance of the alleged limitation (Toure v. Avis, supra).

For that the Court looks to plaintiff's deposition testimony where he stated the injury bothers him because “When I bend down the knee hurts.”   This minor physical limitation is not significant enough under a qualitative standard, even when viewed with an objective quantitative assessment that plaintiff suffered a knee injury as a result of the accident (cf. Pianka v. Pereira, 24 A.D.3d 1084, 806 N.Y.S.2d 286).

 Moreover, this Department holds that when plaintiff's' examining medical provider impermissibly relies upon unsworn or unaffirmed reports of a hospital and other medical professionals, his affidavit fails to raise an issue of fact (Moore v. Sarwar, 29 A.D.3d 752, 816 N.Y.S.2d 503).   Nor can a provider rely on subjective complaints of pain (Pianka v. Pereira, supra;  Savattere v. Barnathan, 280 A.D.2d 537, 720 N.Y.S.2d 386).

Finally, plaintiff has failed to demonstrate with any evidence, medical or otherwise, that he was unable to perform substantially all of his usual and customary daily activities (DiNunzio v. Suffolk, supra;  Moore v. Sarwar, supra).

Accordingly, defendant's motion (Seq. # 001) is granted and the complaint is dismissed.

Consequently, plaintiff's motion (Seq. # 002) for partial summary judgment on the issue of liability is denied as moot.

JOHN M. GALASSO, J.