McMULLIN v. WALKER (2009)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated April 17, 2009, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Beverly McMullin on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Beverly McMullin is granted.

In support of that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Beverly McMullin (hereinafter McMullin), the defendants met their prima facie burden of showing that McMullin 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, McMullin failed to raise a triable issue of fact.

The magnetic resonance imaging (hereinafter the MRI) report of Dr. Steven Brownstein concerning McMullin's lumbar spine, the MRI report of Dr. Dennis Rossi concerning McMullin's cervical spine, the EMG report of Dr. Miguel Vargas, and the medical reports of Dr. Anthony Penepent were all insufficient to raise a triable issue of fact since they were unaffirmed (see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76; Maffei v. Santiago, 63 A.D.3d 1011, 886 N.Y.S.2d 29; Niles v. Lam Pakie Ho, 61 A.D.3d 657, 877 N.Y.S.2d 139; Uribe-Zapata v. Capallan, 54 A.D.3d 936, 864 N.Y.S.2d 118; 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, 844 N.Y.S.2d 71; Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396; Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692).

The “Final Narrative” medical report of Dr. Jerome L. Greenberg, McMullin's chiropractor, was not in affidavit form and therefore was insufficient to raise a triable issue of fact (see Kunz v. Gleeson, 9 A.D.3d 480, 781 N.Y.S.2d 50; Doumanis v. Conzo, 265 A.D.2d 296, 696 N.Y.S.2d 201). In an attempt to cure that defect, McMullin submitted Dr. Greenberg's affidavit, along with the “Final Narrative” report, in a surreply entitled, “Supplemental Affirmation in Opposition.” This was improper, and the Supreme Court should not have considered this submission (see Flores v. Stankiewicz, 35 A.D.3d 804, 827 N.Y.S.2d 281).

The affirmed medical report of Dr. Craig Antell, McMullin's examining orthopedist, also failed to raise a triable issue of fact. While Dr. Antell noted significant limitations in McMullin's cervical spine range of motion based on his recent examination of her on November 5, 2008, neither he nor McMullin proffered competent medical evidence showing the existence of significant limitations in her spine that were contemporaneous with the subject accident (see Sutton v. Yener, 65 A.D.3d 625, 884 N.Y.S.2d 163; Jules v. Calderon, 62 A.D.3d 958, 880 N.Y.S.2d 131; Garcia v. Lopez, 59 A.D.3d 593, 872 N.Y.S.2d 719; Leeber v. Ward, 55 A.D.3d 563, 865 N.Y.S.2d 614; 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). The single limitation noted by Dr. Antell concerning McMullin's thoracolumbar spine range of motion on November 5, 2008, was insignificant under the no-fault statute (see Trotter v. Hart, 285 A.D.2d 772, 728 N.Y.S.2d 561; Waldman v. Dong Kook Chang, 175 A.D.2d 204, 572 N.Y.S.2d 79).

McMullin also failed to submit competent medical evidence that the injuries she allegedly sustained as a result of the subject accident rendered her unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days thereafter (see Ponciano v. Schaefer, 59 A.D.3d 605, 873 N.Y.S.2d 212; Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133). Indeed, she testified at her deposition that she missed, at most, a week of work as a result of the subject accident. Therefore, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by McMullin.