| Kreimerman v Stunis |
| 2010 NY Slip Op 04748 [74 AD3d 753] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Angela Kreimerman, Plaintiff, and Nela Yukobov,Respondent, v Gennadiy Stunis et al., Appellants. |
—[*1] Mallilo & Grossman, Brooklyn, N.Y. (Olayemi Oladapo of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Kramer, J.), dated June 24, 2009, which denied their motionfor summary judgment dismissing the complaint insofar as asserted by the plaintiff NelaYukobov on the ground that she did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint insofar as asserted by the plaintiff Nela Yukobov isgranted.
Contrary to the determination of the Supreme Court, the defendants met their prima facieburden of showing that the plaintiff Nela Yukobov (hereinafter the plaintiff) did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In support of their motion, the defendants relied onthe affirmed medical reports of Dr. Wendy Cohen and Dr. David A. Fisher, as well as a copy ofthe plaintiff's deposition testimony. The plaintiff testified at her deposition that she missed, intotal, two weeks of work as a result of the subject accident. In her affirmed medical report, Dr.Cohen, the defendants' examining neurologist, concluded that, as of April 30, 2008, the plaintiffhad full quantified range of motion in the cervical and lumbar regions of her spine, as comparedwith the stated norms. Dr. Cohen further diagnosed the plaintiff with resolved cervical andlumbar strains and sprains, concluded that the plaintiff was not disabled, and deemed the plaintiffcapable of performing the activities of daily life without restrictions.
Upon his review of the magnetic resonance imaging films of the cervical and lumbar regionsof the plaintiff's spine dated April 20, 2004, and May 5, 2004, Dr. Fisher, the defendants'retained radiologist, noted in his affirmed reports that the plaintiff had diffuse degenerativechanges throughout the cervical and lumbar regions of her spine, including bulging discs in thecervical spine. [*2]Dr. Fisher concluded that the observedbulging discs were degenerative in nature, and were unrelated to and predated the subjectaccident.
The Supreme Court erred in concluding that the defendants did not meet their prima facieburden because Dr. Cohen failed to address the plaintiff's claims, made at her examination by Dr.Cohen, of right shoulder, bilateral hip, and foot pain, since the plaintiff neither claimed suchinjuries in her complaint or bill of particulars, nor moved to amend her bill of particulars to addsuch injuries (see generally Felix vWildred, 54 AD3d 891 [2008]; Ifrach v Neiman, 306 AD2d 380 [2003]).
The plaintiff's submissions failed to raise a triable issue of fact. Initially, the magneticresonance imaging reports of Dr. John T. Rigney and the medical reports of Dr. Renan Maciasfailed to raise a triable issue of fact because they were not affirmed and, thus, not in proper form(see Grasso v Angerami, 79 NY2d 813 [1991]; Chanda v Varughese, 67 AD3d 947 [2009]; Sutton v Yener, 65 AD3d 625[2009]; McNeil v New York City Tr.Auth., 60 AD3d 1018 [2009]; Sapienza v Ruggiero, 57 AD3d 643 [2008]).
The affirmation of Dr. Teodoro Y. Pang failed to raise a triable issue of fact as well, since itfailed to adequately rebut the findings of the defendants' physicians relating to the lumbar andcervical spine conditions (see Barry vFuture Cab Corp., 71 AD3d 710 [2010]). Dr. Pang stated in his affirmation that herendered his diagnosis upon "consideration of [his] examination, the diagnostic testing [of Dr.John T. Rigney] and the reports from Dr. Renan Macias." Dr. Pang clearly relied upon theunsworn reports of Dr. Rigney and Dr. Macias in reaching his conclusions, thus rendering thoseconclusions inadmissible (see Magid vLincoln Servs. Corp., 60 AD3d 1008 [2009]; Sorto v Morales, 55 AD3d 718 [2008]; Malave v Basikov, 45 AD3d 539[2007]; Verette v Zia, 44 AD3d747 [2007]; Furrs v Griffith, 43AD3d 389 [2007]; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267[1995]). In light of Dr. Pang's express reliance on the reports of Drs. Rigney and Macias, there isno basis in the record to conclude that Dr. Pang's diagnosis was made independent of thoseunsworn reports, or that his diagnosis would have been the same had the inadmissible diagnosticand medical reports been excluded.
Moreover, while Dr. Pang noted that his findings of significant limitations in the range ofmotion of the cervical region of the plaintiff's spine were based on an examination performedcontemporaneously with the subject accident, neither he nor the plaintiff proffered anycompetent objective medical evidence based on a recent examination that revealed the existenceof any restrictions of cervical spine range of motion (see Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712[2009]; Diaz v Lopresti, 57 AD3d832 [2008]; Carrillo v DiPaola,56 AD3d 712 [2008]; Landicho vRincon, 53 AD3d 568, 569 [2008]; Cornelius v Cintas Corp., 50 AD3d 1085 [2008]; Young Hwan Park v Orellana, 49AD3d 721 [2008]; Amato v FastRepair Inc., 42 AD3d 477 [2007]).
Conversely, while Dr. Pang's affirmation noted limitation of motion in the lumbar region ofthe plaintiff's spine, based on the recent examination of March 10, 2009, neither he nor theplaintiff proffered any objective medical evidence that revealed the existence of a significantlimitation of motion in the lumbar region of the plaintiff's spine contemporaneous with thesubject accident (see Stevens vSampson, 72 AD3d 793 [2010]; Keith v Duval, 71 AD3d 1093 [2010]; Rivera v Bushwick Ridgewood Props.,Inc., 63 AD3d 712 [2009]; Leeber v Ward, 55 AD3d 563 [2008]; Ferraro v Ridge Car Serv., 49 AD3d498 [2008]; D'Onofrio v Floton,Inc., 45 AD3d 525 [2007]).
Finally, the plaintiff failed to raise a triable issue of fact as to whether she sustained a seriousinjury under the 90/180-day category of Insurance Law § 5102 (d), since she admitted ather deposition that she was out of work for only two weeks after the subject accident, andthereafter returned to her employment. Accordingly, the Supreme Court should have granted thedefendants' motion for summary judgment dismissing the complaint insofar as asserted by theplaintiff. Dillon, J.P., Miller, Balkin, Leventhal and Austin, JJ., concur.