GUZMAN v. PAUL MICHAEL MANAGEMENT

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

Maria GUZMAN, respondent, v. PAUL MICHAEL MANAGEMENT, et al., appellants.

Decided: November 29, 1999

SONDRA MILLER, J.P., WILLIAM C. THOMPSON, GABRIEL M. KRAUSMAN, ANITA R. FLORIO and ROBERT W. SCHMIDT, JJ. Cheven, Keely & Hatzis, New York, N.Y. (Thomas Torto and Laurence B. Goodman of counsel), for appellants. Robert Purzak, Garden City, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), entered October 27, 1998, 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, the motion is granted, and the complaint is dismissed.

The Supreme Court erred in denying 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).  The affirmed medical reports of the physicians who examined the plaintiff on behalf of the defendants were sufficient to establish a prima facie case that the plaintiff did not sustain such serious injury as a result of the underlying collision (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The burden therefore shifted to the plaintiff to come forward with sufficient evidence that she had sustained a serious injury (see, Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130).

 Contrary to the conclusion of the Supreme Court, the plaintiff's evidence submitted in opposition to the defendants' motion was insufficient to raise a triable issue of fact as to whether she sustained a serious injury.   First, the court improperly considered the unaffirmed report of the plaintiff's examining neurologist, as it was not submitted in admissible form (see, Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76).   Moreover, although the plaintiff submitted evidence that she suffered from a herniated disc and bulging discs, such injuries do not, in and of themselves, constitute serious injury (see, Noble v. Ackerman, 252 A.D.2d 392, 394, 675 N.Y.S.2d 86;  cf., Puma v. Player, 233 A.D.2d 308, 649 N.Y.S.2d 461).   Rather, the plaintiff was required “to provide objective evidence of the extent or degree of the alleged physical limitations resulting from the injuries and their duration” (Noble v. Ackerman, supra, at 394, 675 N.Y.S.2d 86).   The affidavit of the plaintiff's treating chiropractor was insufficient for that purpose, as it was based upon an examination conducted in October 1995, almost three years before the defendants' summary judgment motion (see, Schultz v. Von Voight, 216 A.D.2d 451, 452, 628 N.Y.S.2d 388, affd. 86 N.Y.2d 865, 635 N.Y.S.2d 167, 658 N.E.2d 1040;  Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102;  Philpotts v. Petrovic, 160 A.D.2d 856, 857, 554 N.Y.S.2d 289).   The plaintiff submitted no other medical evidence connecting her herniated disc or bulging discs to any limitation of motion (see, Merisca v. Alford, 243 A.D.2d 613, 663 N.Y.S.2d 853;  Delaney v. Rafferty, 241 A.D.2d 537, 663 N.Y.S.2d 834), and the plaintiff's subjective complaints of pain, as contained in her affidavit, were insufficient for this purpose (see, Lincoln v. Johnson, 225 A.D.2d 593, 639 N.Y.S.2d 124;  Orr v. Miner, 220 A.D.2d 567, 568, 632 N.Y.S.2d 633).

MEMORANDUM BY THE COURT.

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