| DeJesus v Paulino |
| 2009 NY Slip Op 03442 [61 AD3d 605] |
| April 30, 2009 |
| Appellate Division, First Department |
| Jose DeJesus et al., Respondents, v Solanny Paulino et al.,Respondents, and Sergio P. Nunez et al., Appellants. |
—[*1] The Edelsteins, Faegenburg & Brown, LLP, New York (Evan M. Landa of counsel), for JoseDeJesus and Eric Martinez, respondents. Buratti, Kaplan, McCarthy & McCarthy, Yonkers (Debra A. Kellman of counsel), forSolanny Paulino and Louis Moreno, respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 22, 2008, which,to the extent appealed from, denied the motion of defendants Nunez and Brickyard for summaryjudgment dismissing the complaint, unanimously reversed, on the law, without costs, the motiongranted and the complaint dismissed as against all defendants. The Clerk is directed to enterjudgment accordingly.
This action for personal injuries arose out of a motor vehicle accident that occurred on April8, 2004 on Sedgewick Avenue near its intersection with Hall of Fame Road in the Bronx.Plaintiffs allege they each sustained injuries to the cervical and lumbar spine, and plaintiffDeJesus also alleges an injury to his knee.
Nunez and Brickyard moved for summary judgment dismissing the complaint on thegrounds that neither plaintiff sustained a "serious injury" as defined in Insurance Law §5102 (d). In support of that motion, they submitted a report by Dr. Tariq Yousef, a neurologistwho conducted several tests on each plaintiff's cervical and lumbar spine. These tests found eachplaintiff's range of motion to be normal, and Dr. Yousef concluded that each plaintiff could workand perform normal activities without restriction. This conclusion was supported by theunderlying data revealed in those tests. Dr. Yousef reviewed each plaintiff's bill of particularsprior to conducting these tests; he did not, however, review their MRIs or other medical records.
Also submitted in support of the motion was the report of Dr. Wayne Kerness, an orthopedicsurgeon who examined DeJesus. Dr. Kerness also conducted range of motion tests to thisplaintiff's cervical and lumbar spine and found them to be within a normal range. Furtherobjective tests led him to conclude that DeJesus also had full range of motion in his knees. Dr.[*2]Kerness opined that DeJesus was able to carry out his dailyactivities without restrictions, and that there was no permanency of any of the claimed injuries.As with Dr. Yousef, Dr. Kerness did not review DeJesus's MRI or medical records, but only thebill of particulars.
The report of Dr. Audrey Eisenstadt, a radiologist, was also submitted. Dr. Eisenstadtreviewed Martinez's lumbar and cervical MRI films. She found indications of "pre-existing,degenerative disease" in Martinez's lumbar region which "could not have occurred in the timeinterval between examination and injury." She also found no recent or post-traumatic changes inMartinez's cervical spine.
In response was submitted the affirmation of Dr. Benjamin Cortijo, Jr., who had examinedboth plaintiffs on April 12, 2004, four days after the accident, finding limitations in therange-of-motion tests performed on their lumbar and cervical spine. After examining bothplaintiffs approximately four years later, he again found limitations in the range of motion testsof their cervical and lumbar spines.
Plaintiffs also submitted reports by Dr. David H. Stemerman, who conducted cervical andlumbar MRIs on both plaintiffs, revealing herniations and disc bulges.
The IAS court denied the summary judgment motion, finding that the moving defendantsfailed to meet their initial burden of proof by showing that plaintiffs had not suffered a seriousinjury. The court further stated that assuming, arguendo, defendants had met their burden,plaintiffs' medical proof was sufficient to raise a triable issue of fact.
Contrary to the finding of the IAS court, the moving defendants sustained their prima facieburden. Notwithstanding their failure to review plaintiffs' medical records, defendants' expertsdetailed the specific objective tests used in their personal examinations, as well as the underlyingdata from those tests, to show full range of motion (Day v Santos, 58 AD3d 447 [2009])and, as to Martinez, the degenerative condition in his lumbar spine. It was sufficient thatdefendants' radiologist reviewed plaintiffs' MRI films. Moreover, the reference to plaintiffs'proof and deposition testimony sufficiently refuted the 90/180-day allegation of serious injury(see Rivera v Gelco Corp., 58 AD3d 477 [2009]).
Taken as a whole, defendants' submissions were sufficient to meet their initial burden andthus shift the burden to plaintiffs, who failed to carry that burden in several respects. Theunsworn emergency room records and other reports had no probative value (Black vRegalado, 36 AD3d 437 [2007]). Plaintiffs submitted insufficient objective medicalevidence to support their 90/180-day claim. Their deposition testimony about inability to playsports or mop floors was not supported by objective medical evidence (see Nelson vDistant, 308 AD2d 338, 340 [2003]).
With respect to plaintiff Martinez, the medical submissions failed to address sufficiently theallegations that his lumbar injuries were the result of degenerative disease (Reyes vEsquilin, 54 AD3d 615 [2008]). With respect to both plaintiffs, bulging or herniated discsare not, in and of themselves, evidence of serious injury without competent objective evidence ofthe limitations and duration of the disc injury (Pommells v Perez, 4 NY3d 566, 574[2005]; Toulson v Young Han Pae, 13 AD3d 317, 319 [2004]). That objective evidencewas not submitted here.
Dr. Cortijo's reports contained the objective tests conducted and the data underlying theirresults, both as to his examinations four days after the accident and approximately four yearslater with respect to both plaintiffs' lumbar and cervical condition. However, the affirmationssubmitted by plaintiffs' medical providers in opposition to the summary judgment motion did notaddress the findings made by the defense witnesses. Moreover, DeJesus did not produce any[*3]evidence to rebut the finding that he had full range of motionin his right knee. In response to Dr. Kerness's finding of a normal range of motion afterexamining DeJesus, Dr. Cortijo affirmed that on the later examination, DeJesus had positivecompression, positive straight leg raising and "motor strength of the right knee
Although the record is unclear as to whether defendants Paulino and Moreno filed a notice ofappeal, we grant summary judgment in their favor as well "because, obviously, if plaintiff[s]cannot meet the threshold for serious injury against one [set of] defendant[s], [they] cannot meetit against the other" (Lopez v Simpson, 39 AD3d 420, 421 [2007]).Concur—Gonzalez, P.J., Tom, Friedman, Sweeny and McGuire JJ.