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

Tamara BETHEIL-SPITZ, et al., Appellants, v. Edwin LINARES, et al., Respondents.

Decided: October 30, 2000

THOMAS R. SULLIVAN, J.P., SONDRA MILLER, HOWARD MILLER and NANCY E. SMITH, JJ. John F. Clennan, Ronkonkoma, N.Y., for appellants. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Larry H. Lum and Tara L. Stagg of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated October 28, 1999, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the defendants' motion for summary judgment.   The defendants established a prima facie case that the injured plaintiff, Tamara Betheil-Spitz, did not sustain a serious injury in the underlying accident (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176), thereby shifting the burden to the plaintiffs to demonstrate by admissible evidence that the injured plaintiff had sustained such an injury (see, Licari v. Elliott, 57 N.Y.2d 230, 235, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Nadrich v. Woodcrest Country Club, 250 A.D.2d 827, 671 N.Y.S.2d 1017).   The evidence submitted in opposition to the defendants' motion demonstrated that the injured plaintiff had congenital scoliosis and a preexisting degenerative disc condition.   The defendants' evidence established that, as a result of the accident, the plaintiff suffered only a strain to the muscles of her neck and back which had fully resolved itself within three months.

In opposition to the defendants' motion, the plaintiffs submitted the affidavits of a radiologist, Dr. Sharada Jayagopal, and an orthopedic surgeon, Dr. Schlomo Piontkowski.   Although the credibility of a physician's affidavit usually should not be weighed on a motion for summary judgment, the affidavits of Dr. Jayagopal and Dr. Piontkowski merely reinterpreted findings based on Dr. Piontkowski's 1996 examination of the injured plaintiff and Dr. Jayagopal's review of a magnetic resonance image of the injured plaintiff's spine taken in 1996.   In these physicians' original diagnoses, there was no mention of seriousness or permanency and, in the case of Dr. Jayagopal, no suggestion that the accident was the cause of the injured plaintiff's cervical problems.   The affidavits of the injured plaintiff's physicians, submitted in opposition to the defendants' motion, clearly represent a tailoring of their assertions to meet the statutory requirements (see, Powell v. Hurdle, 214 A.D.2d 720, 625 N.Y.S.2d 634).   Furthermore, there was no explanation by the injured plaintiff for the three-year gap in her treatment (see, Cabri v. Myung Soo Park, 260 A.D.2d 525, 688 N.Y.S.2d 248;  Stowe v. Simmons, 253 A.D.2d 422, 676 N.Y.S.2d 638).


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