| Clemmer v Drah Cab Corp. |
| 2010 NY Slip Op 05659 [74 AD3d 660] |
| June 24, 2010 |
| Appellate Division, First Department |
| Duane Clemmer, Appellant, v Drah Cab Corp. et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered May 20, 2008,which granted defendants' motion for summary judgment dismissing the complaint on theground that plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), affirmed, without costs.
The failure of defendants' medical experts to discuss plaintiff's medical records indicatingbulging or herniated discs does not require denial of defendants' motion (DeJesus v Paulino, 61 AD3d 605,607 [2009]; Shumway v Bungeroth,58 AD3d 431 [2009]), since, contrary to plaintiff's contention, defendants' neurologistdetailed the specific objective tests he used in his personal examination of plaintiff, whichrevealed full range of motion, and their radiologist found on review of plaintiff's MRI films noevidence of disc bulging or herniation (DeJesus at 607).
In opposition to defendants' motion, plaintiff submitted the sworn affirmation of Dr. PervaizQureshi, the unsworn report and records of his chiropractor, Dr. Trager, unsworn MRI reports ofDr. Robert Scott Schepp, his deposition testimony and his own affidavit. Dr. Qureshi, whoexamined plaintiff more than two years after the accident, found limitations in plaintiff's range ofmotion. He reviewed the unsworn reports of Dr. Trager and Dr. Schepp and, in language thattracked Insurance Law § 5102 (d), found plaintiff to have suffered a serious injury whichwas causally related to this accident. Dr. Trager examined plaintiff approximately one week afterthe accident and his report found range of motion limitations in plaintiff's spine. However, thereport was unsworn and therefore inadmissible (see Petinrin v Levering, 17 AD3d 173 [2005]). Also unsworn andtherefore inadmissible were the MRI reports of Dr. Schepp which found herniations and discbulges.
While "evidence, otherwise excludable at trial, may be considered to deny a motion forsummary judgment," such evidence cannot "form the sole basis for the court's determination"(Largotta v Recife Realty Co., 254 AD2d 225, 225 [1998], quoting Wertheimer vNew York Prop. Ins. Underwriting Assn., 85 AD2d 540, 541 [1981]). To the extent Dr.Qureshi's conclusions are based on the unsworn chiropractic report and the unsworn MRIreports, those conclusions are inadmissible, because defendants' experts did not submit thoseunsworn reports with their own reports or expressly rely on them in reaching their ownconclusions (Hernandez v [*2]Almanzar, 32 AD3d 360, 361 [2006]).
Plaintiff argues that our decision in Rivera v Super Star Leasing, Inc. (57 AD3d 288 [2008]) permitsthe use of those unsworn reports for purposes of opposing a motion for summary judgment. InRivera, plaintiff's expert incorporated into his affirmation in support of his conclusionthat plaintiff sustained a serious injury several unsworn reports of other doctors who examinedplaintiff closer in time to the accident. We found that "these unsworn reports were not the onlyevidence submitted by plaintiff in opposition to the motion, and may be considered to deny amotion for summary judgment" (id., citing Largotta v Recife Realty Co., 254AD2d at 225).
Although the dissent contends that the facts of Rivera are "essentiallyindistinguishable from the present case," the facts here compel a different result. As here, theMRI reports submitted by plaintiff in Rivera were unsworn; unlike here, those MRIreports were referred to by both defendants' and plaintiff's experts in their affirmations andhence, were properly before the court (see Thompson v Abbasi, 15 AD3d 95, 97 [2005]; Brown v Achy, 9 AD3d 30, 32[2004]). Moreover, the Rivera MRI of the plaintiff's spine was sufficient to establish theexistence of disc bulges and herniations as both defendants' and plaintiff's physiciansacknowledged those conditions, differing only as to the cause (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]).
In this case, defendants did not rely on or make reference to plaintiff's MRI reports but rathersubmitted their own sworn MRI report which found no herniations or disc bulges. Nor diddefendants' physicians refer to plaintiff's physician's unsworn report. While it is true thatplaintiff's expert in Rivera relied on several unsworn reports of other doctors whoexamined plaintiff, unlike here, the MRI report provided other contemporaneous evidence inadmissible form, bringing it within the requirements of Largotta.
The dissent argues that plaintiff's doctor's review of plaintiff's MRI films constitutes theadditional evidence needed to bring this case within the parameters of Rivera. However,he simply states he is "in agreement" with the results of Dr. Schepp's unsworn and thereforeinadmissible report containing Dr. Schepp's interpretation of the films. This bootstrappingprocess should not be used to bring inadmissible evidence before the motion court. Significantly,Dr. Qureshi makes no reference to defendants' sworn MRI report interpreting those films, whichfound no evidence of disc bulge, protrusion or herniation.
Moreover, we note that Dr. Qureshi's examination was conducted only after defendantsmoved to dismiss the complaint. His report merely states that "if the history is correct, there is acausal relationship between the injuries and the accident." The only way he could arrive at thatconclusion would be to rely on the unsworn report of Dr. Trager. In the absence of any objectivemedical basis for the conclusion causally relating plaintiff's injuries to the accident, such"conclusory assertions tailored to meet statutory requirements" are insufficient to defeatdefendant's motion (Shaw v LookingGlass Assoc., LP, 8 AD3d 100, 103 [2004]; see also Navedo v Jaime, 32 AD3d 788 [2006]).
Thus, plaintiff failed to submit admissible contemporaneous evidence of the extent andduration of the alleged limitations in his spine (see Lopez v Abdul-Wahab, 67 AD3d 598, 599 [2009]). Plaintiff'sexamining physician's quantitative range of motion assessment more than two years after theaccident is too remote in time to warrant the inference that the limitations were caused by theaccident (see Guadalupe v BlondieLimo, Inc., 43 AD3d 669 [2007]).
Defendants met their initial burden of showing prima facie that plaintiff did not sustain a90/180-day injury by submitting plaintiff's affidavit in which he said he returned to work2½ [*3]months—i.e., less than 90 days—afterthe accident. In opposition, plaintiff submitted no competent objective medical proof or otherevidence to raise an issue of fact (seeBeaubrun v New York City Tr. Auth., 9 AD3d 258, 259 [2004]). Concur—Tom,J.P., Andrias, Sweeny and Nardelli, JJ.
Renwick, J., dissents in a memorandum as follows: I disagree with the majority's conclusionthat the order granting defendants' motion for summary judgment dismissing the complaintshould be affirmed. Specifically, in finding that plaintiff failed to meet his burden of raising atriable issue on serious injury, the majority incorrectly distinguishes our precedent in Rivera v Super Star Leasing, Inc. (57AD3d 288 [2008]), which stands for the proposition that a plaintiff can rely upon unswornreports of a treating physician to raise an issue of fact on serious injury as long as such evidenceis not the only evidence submitted in opposition to the motion for summary judgment.Accordingly, I respectfully dissent.
On May 29, 2005, plaintiff was the passenger of a vehicle involved in a motor vehicleaccident with a vehicle owned and operated by defendants. Plaintiff commenced this actionagainst defendants seeking to recover damages; plaintiff alleged that he sustained injuries to thecervical and lumbar portions of his spine. Defendants moved for summary judgment dismissingthe complaint in its entirety, arguing that plaintiff did not sustain a "serious injury" underInsurance Law § 5102 (d). Supreme Court granted the motion and dismissed the action.
I agree with the majority to the extent it finds that defendants met their burden ofestablishing prima facie that plaintiff did not sustain permanent consequential or significantlimitations of his spine by submitting the affirmations of several doctors who, upon examiningplaintiff and performing objective tests, similarly concluded that plaintiff's injuries were resolved(see e.g. Charley v Goss, 54 AD3d569, 570-571 [2008], affd 12 NY3d 750 [2009]; Figueroa v Castillo, 34 AD3d 353 [2006]). Likewise, I agree thatdefendants also established that plaintiffs had no 90/180-day injury by submitting plaintiff'saffidavit in which he said he returned to work 2½ months—i.e. less than 90days—after the accident (seeLloyd v Green, 45 AD3d 373 [2007]; Guadalupe v Blondie Limo, Inc., 43 AD3d 669 [2007]).
The burden then shifted to plaintiff to raise a triable issue of fact that he sustained a seriousinjury (see Licari v Elliott, 57 NY2d 230, 235 [1982]; accord Gaddy v Eyler, 79NY2d 955, 957 [1992]). In opposition to the motion, plaintiff submitted an affidavit from Dr.Pervaiz Qureshi, who examined him on March 6, 2008, almost three years after the accident. Thephysical examination revealed significant limitations of use of plaintiff's spine. Dr. Qureshireviewed the medical report prepared by plaintiff's treating chiropractor, Dr. Donald Trager, whohad examined plaintiff on June 5, 2005, within a week of the accident, and found significantlimitations of use of his spine. Dr. Qureshi also reviewed the MRIs taken of plaintiff on August 9and August 15, 2005, and agreed with the MRI reports indicating, respectively, herniations andbulges of the cervical spine, as well as bulges of the lumbar spine. Based upon his recentphysical examination and review of the medical reports and MRIs, Dr. Qureshi concluded thatplaintiff sustained permanent consequential and significant limitations of use of his spine andthat such serious injury was causally related to the automobile accident.
Supreme Court found that plaintiff's evidence was insufficient to raise a triable issue of factthat he had suffered permanent consequential or significant limitations of use of his spine. [*4]Initially, the court determined that the MRI reports submitted byplaintiff "though unsworn, were of the diagnostic studies relied upon by defendants' expert forhis radiologic[al] assessment, and, as such, are properly before the court." The court, however,determined that "[t]he [unsworn] report of the chiropractor is not properly before the court andcannot be considered." Disregarding such unsworn report, the court found the record devoid ofany admissible contemporaneous evidence of the extent of plaintiff's limitations of use of hisspine. As a result, the court found that "[t]he examining physician's quantification of spinallimitations, more than two and one half years after the accident, is too remote in time to raise anissue of fact as to whether the limitations were caused by the accident."
Based on existing case law in this Department, I conclude that Supreme Court erred infinding, in effect, that the examining physician's sworn opinion that plaintiff suffered a seriousinjury was deficient because of the expert's reliance upon the unsworn report of plaintiff'schiropractor to establish the contemporaneous limitations of use of his spine. It is wellestablished that " 'evidence, otherwise excludable at trial, may be considered to deny a motionfor summary judgment provided that this evidence does not form the sole basis for the court'sdetermination' " (Largotta v Recife Realty Co., 254 AD2d 225, 225 [1998], quotingWertheimer v New York Prop. Ins. Underwriting Assn., 85 AD2d 540, 541 [1981]). Thisprinciple applies with equal force to unsworn medical reports submitted to rebut a defendant'sshowing of lack of serious injury (seee.g. Hammett v Diaz-Frias, 49 AD3d 285 [2008]; cf. Henkin v Fast Times Taxi,307 AD2d 814 [2003] [unsworn reports are insufficient if they are the only evidence inopposition]).
This Court's holding in Rivera vSuper Star Leasing, Inc. (57 AD3d 288 [2008]), illustrates the point. In Rivera,this Court found that the plaintiff raised a triable issue of fact on serious injury based upon thesworn report of a physician who conducted a recent examination of the plaintiff and foundsignificant limitations of use of his spine. In rendering his sworn opinion that the plaintiff hadsuffered a serious injury (i.e., permanent consequential and significant limitations of use of hisspine), the examining physician relied upon several unsworn reports including that of the treatingphysician who conducted a contemporaneous examination of the plaintiff and found significantlimitations of use of his spine. This Court found that these unsworn reports were properlyconsidered to deny a motion for summary judgment because they "were not the only evidencesubmitted by plaintiff in opposition to the motion" (id. at 288).
The facts of Rivera are essentially indistinguishable from the present case. Here, asin Rivera, the examining physician, who conducted the recent examination and rendereda sworn opinion that plaintiff suffered a serious injury, relied upon the unsworn report of thetreating physician, whose contemporaneous examination of plaintiff also revealed significantlimitations of use of plaintiff's spine. Since, as in Rivera, the unsworn contemporaneousreport was not the only evidence submitted by plaintiff in opposition to the motion, this evidenceshould have been considered by the court below in determining whether plaintiff had raised atriable issue of fact on serious injury, i.e., a permanent consequential or significant limitation ofuse of his spine.
The majority's attempt to distinguish Rivera is not persuasive. The majority assertsthat Rivera is distinguishable because there the unsworn MRI reports relied upon by theexamining physician, who rendered an opinion of serious injury, were properly before the courtsince the defendants' medical experts also made reference to them. In contrast, in this case,defendants' medical experts did not rely upon plaintiff's MRI reports. The majority finds thisfactual distinction to be dispositive because they contend that defendants' reliance on plaintiff'sMRI [*5]reports in Rivera provided "the other"contemporaneous medical evidence in admissible form, albeit concededly only insofar asestablishing the existence of disc bulges and herniations in plaintiff's spine.
The factual distinction the majority draws between Rivera and this case isanalytically insignificant. The majority overlooks the crucial fact that, in this case, the examiningphysician himself reviewed the actual MRI films. He did not rely on any unsworn MRI reports.Rather, after his own review of the MRI films, he concluded that they established disc bulgesand herniations in plaintiff's spine. Thus, it was based upon his own MRI findings, his physicalexamination of plaintiff, and his review of the treating physician's report that the examiningphysician concluded that plaintiff sustained a serious injury (cf. Byong Yol Yi v Canela, 70 AD3d584, 585 [2010] ["The affirmed report of plaintiff's doctor was admissible, even though itrelied in part on the unsworn reports of another doctor who read plaintiff's MRIs" (citingRivera, 57 AD3d 288)]; see alsoPommells v Perez, 4 NY3d 566, 577 n 5 [2005] ["Though the MRI reports wereunsworn, the various medical opinions relying on those MRI reports are sworn and thuscompetent evidence" (citation omitted)]).
Contrary to the majority's contention, it remains that Rivera and this case areindistinguishable with respect to the central fact that in both cases the plaintiff relied upon theunsworn report of the treating physician to establish contemporaneous spine limitations.Nevertheless, as this Court explicitly held in Rivera, "[t]o the extent the expertincorporated into his affirmation several unsworn reports of other doctors who examinedplaintiff, these unsworn reports were not the only evidence submitted by plaintiff in oppositionto the motion, and may be considered to deny a motion for summary judgment" (Riveraat 288).
The majority makes no attempt to address the significance of the fact that plaintiff's expert(Dr. Qureshi) actually reviewed the MRI films and thus made an independent determination thatthey revealed bulges and herniations in plaintiff's spine. Instead, the majority completelymischaracterizes Dr. Qureshi's statements by alleging that plaintiff's expert did not conduct hisown independent review of the MRIs but rather simply stated that " 'he [was] in agreement' withthe results of Dr. Schepp's [treating physician] unsworn . . . report." This"bootstrapping" allegation, however, is unsupported by the evidence. In actuality, in hisaffidavit, Dr. Qureshi states, "[A]fter a review of Mr. Clemmer's MRI films, I amin agreement with the above noted results [indicating disk bulges and herniations of plaintiff'sspine]" (emphasis added). Thus, there is no basis to dispute the fact that plaintiff's expertrendered an opinion of serious injury based upon his own MRI findings, his physicalexamination of plaintiff and his review of the treating physician's reports.
In short, by submitting evidence that demonstrated recent and contemporaneous limitationsin his spine (see Valentin vPomilla, 59 AD3d 184, 184-185 [2009]; Thompson v Abbasi, 15 AD3d 95, 98 [2005]), plaintiff raised atriable issue of fact as to serious injury, and defendants' motion for summary judgment shouldhave been denied with regard to the claims of "permanent consequential limitation of use of abody organ or member" and "significant limitation of use of a body function or system." I agree,however, with Supreme Court to the extent it dismissed the 90/180-day claim, since plaintiffsubmitted no medical evidence to substantiate his claim that his injuries precluded him fromengaging in substantially all his customary daily activities for 90 of the first 180 days after theaccident (see Dembele vCambisaca, 59 AD3d 352, 353 [2009]).
For the foregoing reasons, I would modify the order of Supreme Court to the extent it [*6]granted defendants' motion for summary judgment dismissing thecomplaint on the ground that plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d). I would reinstate the complaint only as to the claims of"permanent consequential limitation of use of a body organ or member" and "significantlimitation of use of a body function or system."