LORA v. CALLE

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

Leda LORA, et al., Plaintiffs-Appellants, v. Franklin M. CALLE, et al., Defendants-Respondents.

Decided: March 31, 2005

ELLERIN, J.P., NARDELLI, WILLIAMS, GONZALEZ, SWEENY, JJ. Cannon & Acosta, LLP, Huntington Station (Sharon Staudigel of counsel), for appellants. Cheven, Keely & Hatzis, Esqs., New York (Mayu Miyashita of counsel), for respondents.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 12, 2004, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants met the prima facie entitlement for summary judgment under Insurance Law § 5102(d) by producing sworn reports from three physicians who asserted their qualitative assessments of plaintiffs' conditions based on either specific tests they had performed or objective data they had interpreted (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 357-358, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002];  Shaw v. Looking Glass Assoc., 8 A.D.3d 100, 779 N.Y.S.2d 7 [2004];  Collins v. Stone, 8 A.D.3d 321, 778 N.Y.S.2d 79 [2004] ).   Plaintiffs' submissions in response were lacking for a number of reasons.   Indeed, even their examining physician, Dr. Goldman, opined that plaintiff Sandoval's injuries had “essentially resolved.”   Insofar as Dr. Goldman attributed any occasional lower back pain to the accident, he provided no foundation or objective medical basis whatsoever to support that conclusion (see Franchini v. Palmieri, 1 N.Y.3d 536, 537, 775 N.Y.S.2d 232, 807 N.E.2d 282 [2003] ).   Sandoval's subjective complaints are insufficient to establish a serious injury (Scheer v. Koubek, 70 N.Y.2d 678, 679, 518 N.Y.S.2d 788, 512 N.E.2d 309 [1987] ).   Plaintiffs submitted no probative evidence that Sandoval was prevented from performing substantially all of his usual daily activities for at least 90 of the 180 days immediately following the accident (Ersop v. Variano, 307 A.D.2d 951, 952-953, 763 N.Y.S.2d 482 [2003] ).

As to plaintiff Lora, to the extent Dr. Goldman's diagnosis was based on unsworn medical reports prepared by other doctors, it was not enough to defeat summary judgment.   Dr. Goldman did not attach to his affirmation sworn copies of the reports of Dr. Avagyan and the radiologist who had concluded that Lora sustained a lumbar herniation at L4-5, L5-S1, straightening of the cervical spine and fluid collection in her left knee (see Charlton v. Almaraz, 278 A.D.2d 145, 718 N.Y.S.2d 52 [2000];  Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 627 N.Y.S.2d 765 [1995] ).   Nor did Dr. Goldman provide the numeric values correlated with the purported ranges of motion, or the qualitative assessments of Lora's limitations as compared to the normal function, purpose and use of the lumbar spine and left shoulder (Toure, 98 N.Y.2d at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197).