SILLA v. MOHAMMAD (2008)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Bunyan, J.), dated December 5, 2007, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

In opposition, the plaintiff failed to raise a triable issue of fact.   The magnetic resonance imaging (hereinafter MRI) report of Dr. Mark Freilich, concerning the plaintiff's cervical spine, was without any probative value since it was unaffirmed (see Patterson v. N.Y. Alarm Response Corp., 45 A.D.3d 656, 850 N.Y.S.2d 114;  Verette v. Zia, 44 A.D.3d 747, 748, 844 N.Y.S.2d 71;  Nociforo v. Penna, 42 A.D.3d 514, 515, 840 N.Y.S.2d 396;  see also Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692).   The affirmation of Dr. Albert Anglade, the plaintiff's treating physician, and his report dated June 28, 2007, failed to acknowledge the fact that the plaintiff had been in an accident a few years prior to the subject one, in which she injured her neck and back.   The failure to acknowledge the prior accident and injuries rendered speculative his conclusions that the injuries and limitations he noted during his examinations, concerning the plaintiff's cervical and lumbar spine, were the result of the subject accident (see Cornelius v. Cintas Corp., 50 A.D.3d 1085, 857 N.Y.S.2d 637;  Laurent v. McIntosh, 49 A.D.3d 820, 821, 854 N.Y.S.2d 228;  Wright v. Rodriguez, 49 A.D.3d 532, 533, 855 N.Y.S.2d 147;  Penaloza v. Chavez, 48 A.D.3d 654, 655, 852 N.Y.S.2d 315;  Cervino v. Gladysz-Steliga, 36 A.D.3d 744, 745, 829 N.Y.S.2d 169;  Moore v. Sarwar, 29 A.D.3d 752, 816 N.Y.S.2d 503).

While the plaintiff did not injure her left shoulder in the prior accident, the submissions of Dr. Anglade did not raise a triable issue of fact in that regard, either.   Although Dr. Anglade noted significant range of motion limitations in the plaintiff's left shoulder based on a recent examination, neither the plaintiff nor Dr. Anglade proffered competent objective medical evidence that showed range of motion limitations in her left shoulder that were roughly contemporaneous with the subject accident (see Perdomo v. Scott, 50 A.D.3d 1115, 857 N.Y.S.2d 212;  Scotto v. Ah Ram Suh, 50 A.D.3d 1012, 857 N.Y.S.2d 185;  Ferraro v. Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408;  D'Onofrio v. Floton, Inc., 45 A.D.3d 525, 845 N.Y.S.2d 421;  Morales v. Daves, 43 A.D.3d 1118, 841 N.Y.S.2d 793;  Rodriguez v. Cesar, 40 A.D.3d 731, 733, 835 N.Y.S.2d 438;  Borgella v. D & L Taxi Corp., 38 A.D.3d 701, 702, 834 N.Y.S.2d 199).   Furthermore, it is clear that Dr. Anglade relied on the unaffirmed MRI report of Dr. Freilich in reaching his conclusions that the plaintiff suffered from bulging discs in her cervical spine (see Malave v. Basikov, 45 A.D.3d 539, 845 N.Y.S.2d 415;  Verette v. Zia, 44 A.D.3d 747, 844 N.Y.S.2d 71;  Furrs v. Griffith, 43 A.D.3d 389, 841 N.Y.S.2d 594;  see also Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765).

The MRI report of Dr. Thomas Kolb merely evinced that the plaintiff suffered from tears in the rotator cuff and anterior glenoid labrum as of September 6, 2005.   Dr. Kolb did not offer any opinion on the cause of those tears (see Collins v. Stone, 8 A.D.3d 321, 322, 778 N.Y.S.2d 79), and the mere existence of a tear in a tendon is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Cornelius v. Cintas Corp., 50 A.D.3d 1085, 857 N.Y.S.2d 637;  Piperis v. Wan, 49 A.D.3d 840, 854 N.Y.S.2d 489;  Casas v. Montero, 48 A.D.3d 728, 730, 853 N.Y.S.2d 358;   Shvartsman v. Vildman, 47 A.D.3d 700, 701, 849 N.Y.S.2d 600).   The plaintiff's affidavit, and her deposition testimony, were insufficient to raise a triable issue of fact (see Casas v. Montero, 48 A.D.3d at 730, 853 N.Y.S.2d 358;  Shvartsman v. Vildman, 47 A.D.3d at 701, 849 N.Y.S.2d 600).

The plaintiff's admissible medical submissions were insufficient to establish that she sustained a medically-determined injury of a nonpermanent nature which prevented her from performing her usual and customary activities for 90 of the 180 days following the subject accident (see Casas v. Montero, 48 A.D.3d at 730, 853 N.Y.S.2d 358;  Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 846 N.Y.S.2d 613;  Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).   Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).