| Perl v Meher |
| 2010 NY Slip Op 04978 [74 AD3d 930] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Joseph Perl et al., Respondents, v Mehmood Meher et al.,Appellants. |
—[*1]
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Kings County (Martin, J.), dated April 15, 2009, which denied theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff JosephPerl 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, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The defendants established their prima facie entitlement to judgment as a matter of law bydemonstrating that the injured plaintiff, Joseph Perl (hereinafter the injured plaintiff), did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955 [1992]). The defendants' orthopedist, Dr. S. Farkas, provided a detailedexplanation, including specific observations, for his conclusion that any restrictions in motionwere self-imposed by the injured plaintiff and that there were no objective orthopedic findingswhich would indicate any disability, impairment, or limitation resulting from the accident (see Gonzales v Fiallo, 47 AD3d760 [2008]).
It is well established that in threshold serious injury cases, restrictions in range of motiontypically are numerically quantified (seeFriscia v Mak Auto, Inc., 59 AD3d 492, 493 [2009]; Fiorillo v Arriaza, 52 AD3d 465, 466 [2008]; Duke v Saurelis, 41 AD3d 770,771 [2007]; Desamour v New York CityTr. Auth., 8 AD3d 326, 327 [2004]), compared to the norms (see Fiorillo vArriaza, 52 AD3d at 466; Malave vBasikov, 45 AD3d 539 [2007]; Nociforo v Penna, 42 AD3d 514, 515 [2007]; McNulty v Buglino, 40 AD3d 591[2007]), and based upon identified objective tests (see Sapienza v Ruggiero, 57 AD3d 643, 644 [2008]; Gastaldi v Chen, 56 AD3d 420,421 [2008]; Young Hwan Park vOrellana, 49 AD3d 721 [2008]; Murray v Hartford, 23 AD3d 629 [2005]; Nozine [*2]v Sav-On Car Rentals, 15 AD3d 555, 556 [2005]). Theserequirements are applied to defendants seeking summary judgment, as well as to plaintiffsopposing summary judgment. The plaintiffs are also required to demonstrate restricted range ofmotion based on findings both contemporaneous to the accident (see Stevens v Sampson, 72 AD3d793 [2010]; Jack v Acapulco CarServ., Inc., 72 AD3d 646 [2010]; Sierra v Gonzalez First Limo, 71 AD3d 864 [2010]; Little v Locoh, 71 AD3d 837[2010]) and upon recent findings (seeSham v B&P Chimney Cleaning & Repair Co., Inc., 71 AD3d 978 [2010]; Carrillo v DiPaola, 56 AD3d 712[2008]; Krauer v Hines, 55 AD3d881, 882 [2008]).
Here, Dr. Leonard Bleicher examined the injured plaintiff on May 2, 2005, shortly after theaccident, as Dr. Bleicher was his treating physician. The affirmation of Dr. Bleicher, submittedin opposition to the defendants' motion for summary judgment, failed to identify the range ofmotion tests utilized by him, the numerical results of those tests, or the norms against whichresults are measured. The affirmation, therefore, failed to meet the requirements set forth in thisCourt's sound and well-established precedents.
We disagree with the suggestion of our dissenting colleagues that Dr. Bleicher's arguablyadequate findings from the examination of the injured plaintiff on June 25, 2007, some two yearsafter the accident, quantifying restrictions compared to norms and based upon objective tests,can, in effect, be stretched to remedy the multiple deficiencies of the 2005 findings which weremade only days after the accident. While a physician's description of "norms" may be capable oftransfer from one examination to another by that physician, the same cannot be said for thequantification of an examinee's restricted motion and of the objective tests utilized to measurerestrictions, since such information may differ from one examination to the next.
Where, as here, the defendants established their prima facie entitlement to judgment as amatter of law, the burden shifted to the plaintiffs opposing summary judgment to raise inadmissible form triable issues of fact (see Gaddy v Eyler, 79 NY2d at 956-957; Franco v Akram, 26 AD3d 461[2006]; D'Amato v Mandello, 2AD3d 482 [2003]). With respect to Dr. Bleicher's May 2, 2005, examination of the injuredplaintiff, the plaintiffs failed to meet this burden. The result urged by our dissenting colleagues,that we deem the 2007 findings as somehow curing the shortcomings of the reported 2005findings, is not supported by the applicable law and can only be reached by disregarding thisCourt's precedent which we are not prepared here to sanction.
We also disagree with our dissenting colleagues' conclusion that Dr. Bleicher's affirmationwas sufficient to raise a triable issue of fact based upon a qualitative assessment of the injuredplaintiff's condition, both contemporaneous to the accident and recently (see Toure v AvisRent A Car Sys., 98 NY2d at 350-351). For a qualitative evaluation to suffice, the Court ofAppeals has held that it must have "an objective basis and compares the plaintiff's limitations tothe normal function, purpose and use of the affected body organ, member, function or system"(id. at 350; see Dufel v Green, 84 NY2d 795, 798 [1995]). Here, the plaintiffsdid not argue the issue of qualitative assessment in their appellate submission. In any event, Dr.Bleicher's failure to identify, inter alia, the objective tests utilized by him during his 2005examination of the injured plaintiff deprives the plaintiffs of admissible qualitative assessmentopinion.
The plaintiffs' remaining contentions are without merit. Dillon, J.P., Miller and Balkin, JJ.,concur.
Austin, J., dissents and votes to affirm the order appealed from, with the followingmemorandum in which Leventhal, J., concurs:
By ruling that the injured plaintiff, Joseph Perl (hereinafter the injured plaintiff), failed tostrictly comply with a standard of medical proof which can be found nowhere in Insurance Law§ 5102 (d), the majority bars a colorably meritorious claim from reaching a jury. Because Ibelieve that such an approach is contrary to New York's long-standing policy of preferring casesto be determined on the [*3]merits (see e.g. Bunch v Dollar Budget, Inc.,12 AD3d 391 [2004]), I respectfully dissent and vote to affirm the order appealed from.
In general, "[i]t is well settled that summary judgment is a drastic remedy that is to begranted only where there is no clear triable issue of fact" (Mosheyev v Pilevsky, 283AD2d 469 [2001]; see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). "Even the color ofa triable issue forecloses the remedy" (Rudnitsky v Robbins, 191 AD2d 488, 489 [1993];see Matter of Cuttitto Family Trust,10 AD3d 656, 657 [2004]). Moreover, in deciding a summary judgment motion, theevidence must be construed in a light most favorable to the party opposing the motion (see Pearson v Dix McBride, LLC, 63AD3d 895 [2009]; Mosheyev v Pilevsky, 283 AD2d at 469).
While I agree with the majority that the defendants met their prima facie burden ofdemonstrating their entitlement to judgment as a matter of law by showing that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident, I believe that the Supreme Court properly denied the motion for summaryjudgment dismissing the complaint, because a reading of the entirety of the physician'saffirmation tendered by the injured plaintiff in opposition was sufficient to raise a triable issue offact.
In opposition to the motion, the injured plaintiff submitted the affirmation of Dr. LeonardBleicher, his treating physician. Dr. Bleicher concluded that the injured plaintiff suffered from"numerically and objectively determined restrictions of range [of] motion of both knees, cervicaland lumbar spine," and that those "significant and permanent injuries . . . representimpairments with limitation of body functions [and] are causally related to [the subjectaccident]." In his affirmation, Dr. Bleicher noted that when he examined the injured plaintiff onMay 2, 2005, six days after the subject accident, and as a prelude to treatment rather thanlitigation, "[t]he patient's range of motion was less than 60% of normal in the cervical andlumbar spine." Additionally, Dr. Bleicher reported finding a "left and right knee extensiondecrease" during that examination. Based on his findings and the fact that the injured plaintiffhad neither suffered any similar symptoms before the accident nor had any prior injuries ormedical conditions which would result in such findings, Dr. Bleicher concluded that his findingson May 2, 2005, were related to the subject accident.
Dr. Bleicher further affirmed that when he re-examined the injured plaintiff on June 25,2007, he conducted cervical/thoracic, lumbosacral spine, and knee joint range-of-motion studieswhich revealed significant limitations and deficiencies. In his affirmation, he detailed the resultsof the range-of-motion tests conducted on June 25, 2007, and the norms against which hemeasured those results in arriving at his conclusions.
I disagree with my colleagues' conclusion that Dr. Bleicher's affirmation was insufficient toraise a triable issue of fact. Although it failed to set forth the range-of-motion tests performed,the numerical results of those tests, or the norms against which those tests were measured inconnection with the limitations noted during the May 2005 examination, such information wasprovided in connection with the findings made during the June 2007 examination. Becauserange-of-motion testing and norms were, in fact, set forth in Dr. Bleicher's affirmation, itelevates form over substance to conclude that his affirmation is without evidentiary valuebecause those norms were not specifically associated with the findings made during the May2005 examination.
Put another way, from the four corners of his affirmation, Dr. Bleicher avers objectivefindings based on a norm which is stated once instead of the usual two times. Based upon thefinding that, six days postaccident, the plaintiff suffered a greater than 60% loss of range ofmotion against the norm which is set forth later in Dr. Bleicher's affirmation, the plaintiff wasproperly found to have met his burden of proof (see Dufel v Green, 84 NY2d 795, 798[1995] [an expert's designation of a numeric percentage of a plaintiff's loss of range of motionsufficed to establish a claim of serious injury]; Lopez v Senatore, 65 NY2d 1017 [1985]).Any perceived deficiencies in Dr. Bleicher's findings could be subjected to the crucible ofcross-examination at trial (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351[2002] ["(A)n expert's qualitative assessment of a plaintiff's condition also may suffice,provided that the evaluation has an objective basis and compares the plaintiff's limitations to thenormal function, purpose and use of the [*4]affected body organ,member, function or system. . . When supported by objective evidence, an expert'squalitative assessment of the seriousness of a plaintiff's injuries can be tested duringcross-examination, challenged by another expert and weighed by the trier of fact" (citationsomitted)]).
The Toure court did not establish a precise formula to which a treating doctor'ssubmission must rigidly adhere. The majority assumes that days after an accident, an injuredplaintiff presents to his or her doctor for the purpose of litigation rather than treatment. Researchreflects no case law which mandates that a treating physician record his or her findings of thatinitial examination in a particular manner. Rather, so long as the affirmation of the treatingphysician indicates that his or her contemporaneous testing revealed a measurable limitation ofthe injured plaintiff's range of motion, the threshold set forth in Insurance Law § 5102 (d)should be deemed to be satisfied. The cases cited by the majority with regard to a treatingphysician's contemporaneous examination are not inconsistent with this view (see Stevens v Sampson, 72 AD3d793 [2010] [the plaintiff submitted an affirmed statement of a physician who did not treatthe plaintiff at the time of the accident]; Jack v Acapulco Car Serv., Inc., 72 AD3d 646 [2010] [theplaintiff's first treatment came four years after the accident]; Sierra v Gonzalez First Limo, 71 AD3d 864, 865 [2010] [absenceof "any range of motion findings which were contemporaneous with the subject accident"]; Little v Locoh, 71 AD3d 837[2010] [unaffirmed report of treating physician insufficient to meet the plaintiff's burden]).
To hold a treating physician to a litigation standard of marking his or her chart at such anearly stage effectively turns away plaintiffs with arguably colorable claims who seek treatmentwith a physician who is more focused on providing care than preparing for litigation. Thisunfortunate result does little, if anything, to promote the legislative purpose of Insurance Law§ 5102 (d) which was to "weed out frivolous claims" (Dufel v Green, 84 NY2d at798; see Licari v Elliott, 57 NY2d 230, 234-235 [1982]). On the other hand, years afterthe accident, and in consultation with defense counsel, the defendants' doctors see an injuredplaintiff solely for the litigation purpose of dismissal of that plaintiff's claim. This places aninjured plaintiff and his or her treating physician at a severe disadvantage in opposing adefendant's summary judgment motion.
The majority fails to account for differences in approach by treating doctors which conveythe required information in a less than perfect way. It should be of no moment that some doctorsdo, in fact, record their findings in such a way that satisfies the majority view.
I believe that the injured plaintiff, through Dr. Bleicher's affirmation, adequately raised atriable issue of fact as to whether he sustained a serious injury under the permanentconsequential limitation of use and/or significant limitation of use categories of Insurance Law§ 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys.,98 NY2d at 353; Sanevich vLyubomir, 66 AD3d 665 [2009]; Casey v Mas Transp., Inc., 48 AD3d 610, 611 [2008]; Green v Nara Car & Limo, Inc., 42AD3d 430, 431 [2007]).
Accordingly, in my view, the Supreme Court properly denied the defendants' motion forsummary judgment dismissing the complaint.