| Cariddi v Hassan |
| 2007 NY Slip Op 08399 [45 AD3d 516] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Vanessa Cariddi, Respondent, v Sibtul Syed Hassan et al.,Appellants, et al., Defendants. |
—[*1] Joachim Frommer Cerrato & Levine, LLP, Garden City, N.Y. (Stephen G. Frommer andMary Ellen O'Brien of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Sibtul Syed Hassan andMikhal Zaslavsky appeal from an order of the Supreme Court, Kings County (Solomon, J.), datedJanuary 31, 2007, which denied their motion for summary judgment dismissing the complaintinsofar as asserted against them on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when she was struck by a vehicle while crossing 27thStreet at the intersection of Park Avenue South, in Manhattan. In her supplemental bill ofparticulars, the plaintiff claimed to have sustained injuries to her lumbosacral spine and leftankle, as well as an injury to her left hip consisting of a tear of the superolateral acetabularlabrum.
In support of their motion for summary judgment, the defendants Sibtul Syed Hassan andMikhal Zaslavsky (hereinafter the defendants) submitted, inter alia, the affirmed report of Dr.Michael J. Katz, an orthopedic surgeon. Based on his examination of the plaintiff and his reviewof her medical records, Dr. Katz diagnosed her with "contusion to the left ankle now resolved,""[l]umbosacral strain resolved," and "[l]eft hip derangement unrelated." While Dr. Katz providedobjective medical evidence in support of his diagnoses with respect to the plaintiff's complaints[*2]regarding her ankle and lumbosacral spine, his only basis forconcluding that the plaintiff's complaints regarding her hip were "unrelated" to the subjectaccident was that "doctors' notes reviewed do not indicate any problem to the left hip followingthis incident of 09/17/04 [and a]n MRI of the left hip and pelvis was not performed until01/03/06 which is more than one year after the accident." However, Dr. Katz did not attach anyof the prior medical records to his report, and the defendants otherwise failed to submit any suchrecords in support of their motion, as they were certainly entitled to do (see Kearse v New York City Tr. Auth.,16 AD3d 45, 47 n 1 [2005]; Pagano v Kingsbury, 182 AD2d 268, 271 [1992]).Therefore, Dr. Katz's report, standing alone, failed to establish, prima facie, that the plaintiff'salleged hip injury was unrelated to the subject accident (see Ayotte v Gervasio, 81 NY2d1062 [1993]).
The defendants also submitted the affirmed report of Dr. Allen Rothpearl, a radiologist.Based on his review of the MRI film of the plaintiff's left hip, Dr. Rothpearl opined that theplaintiff suffered from "joint effusion," which he described as "a nonspecific finding which isusually idiopathic, inflammatory, infectious, or degenerative in nature," as well as from"[d]egenerative joint disease," which "occurs as a natural consequence of aging." We find that,unlike Dr. Katz's report, Dr. Rothpearl's report was sufficient to establish, prima facie, that theplaintiff's alleged hip injury was unrelated to the subject accident. In opposition, however, theplaintiff submitted the affirmed report of Dr. Keith Tobin, who, reading the same MRI film,opined that the plaintiff sustained a "tear of the superolateral acetabular labrum," and specificallynoted "no significant joint effusion." We find that these conflicting medical opinions regardingthe nature and etiology of the plaintiff's alleged hip injury raise triable issues of fact. Thus, theSupreme Court properly denied the defendants' motion for summary judgment dismissing thecomplaint insofar as asserted against them (see Lopez v Senatore, 65 NY2d 1017[1985]). Crane, J.P., Ritter, Fisher, Covello and Dickerson, JJ., concur.