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Carter v. Rivera

May 26, 2009

UHURA CARTER AND MICHAEL E. ANTOINE, PLAINTIFFS,
v.
JUANITA RIVERA, DEFENDANT.



The opinion of the court was delivered by: Jack M. Battaglia, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

It is perhaps surprising that there is yet any stone unturned at the serious injury threshold, but this motion presents a question that does not appear to have been answered: May the plaintiff raise a triable issue in opposition to a threshold motion with medical records or reports that are uncertified, unsworn, and unaffirmed, but are rendered admissible as evidence pursuant to the "business records" exception to the hearsay rule? The Court answers the question "yes."

In this Complaint, plaintiffs Uhura Carter and Michael E. Antoine each allege "serious injury" within the meaning of Insurance Law § 5102 (d) as a result of a motor vehicle collision on July 6, 2007 with defendant Juanita Rivera. In the Verified Bill of Particulars, plaintiff Carter alleges injury to her cervical spine, lumbar spine, and left shoulder, including disc bulges at C4-C5 and L4-L5; plaintiff Antoine alleges injury to his cervical spine and lumbar spine, including bulges at C4-C5, L3-L4, and L5-S1. Neither the Verified Bill of Particulars nor the deposition testimony of the respective Plaintiffs presents facts that would support a finding of "serious injury" under the 90/180 days disability category, and Defendant, therefore, is not expected on this motion to establish prima facie that neither Plaintiff suffered an injury under that category. (See, for example, Miller v Bah, 58 AD3d 815, 815-16 [2d Dept 2009]; Carr v KMO Transp., Inc., 58 AD3d 783, 784 [2d Dept 2009].)

In support of the motion, Defendant submits the affirmed medical reports of orthopedist Robert Israel, M.D., who examined each Plaintiff on July 28, 2008. As to plaintiff Carter, Dr. Israel reports full range of motion in her cervical spine, lumbar spine, and left shoulder, and concludes that, "from an orthopedic point of view, the claimant has no disability as a result of the accident of record." As to plaintiff Antoine, Dr. Israel reports full range of motion in his cervical spine and lumbar spine, and concludes that, "from an orthopedic point of view, the claimant has no disability as a result of the accident of record."

Defendant also submits as to plaintiff Carter the affirmed reports of radiologist Melissa Sapan Cohn, M.D., who reviewed MRI studies of Plaintiff's cervical spine and lumbar spine made, respectively, on July 25, 2007 and August 6, 2007. Dr. Cohn states as to the study of Plaintiff's cervical spine that it is "an extremely poor quality study," "essentially a nondiagnostic study, of limited clinical usefulness." As to the study of Plaintiff's lumbar spine, Dr. Cohn states that it is "a poor quality examination but it does appear to be diagnostic," and finds "essentially a normal lumbosacral spine MRI."

Defendant submits no similar radiological studies with respect to plaintiff Antoine, although he too underwent MRI studies to his cervical spine and lumbar spine, respectively, on July 25 and August 6, 2007, and reports of those studies are referred to in Dr. Israel's report of his examination of Plaintiff.

"A defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), despite the existence of an MRI which shows herniated or bulging discs." (Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50 [2d Dept 2005]; see also Servones v Toribio, 20 AD3d 330, 330 [1st Dept 2005]; Meely v 4 G's Truck Renting Co., Inc., 16 AD3d 26, 30 [2d Dept 2005].) Although there are few appellate decisions that affirmatively explicate the nature of the "admissible proof" that will suffice, as opposed to pointing out deficiencies where they occur, it seems clear that the report of one doctor, based upon one examination of the plaintiff, of a type similar to the reports of Dr. Israel submitted here, will suffice. (See Young Hwan Park v Orellana, 49 AD3d 721, 722 [2d Dept 2008]; Moore v Edison, 25 AD3d 672, 672 [2d Dept 2006]; see also Faso v Fallato, 39 AD3d 1234, 1234 [4th Dept 2007]; McNamara v Wood, 19 AD3d 921, 922 [3d Dept 2005].)

The Court concludes here, therefore, that Defendant has established prima facie that neither Plaintiff sustained a "serious injury" within the meaning of Insurance Law § 5102 (d) as a result of the July 6, 2007 accident.

In opposition each Plaintiff submits numerous medical records and reports; Defendant counts 80 pages for each Plaintiff. The records and reports are accompanied for each Plaintiff by an Affidavit of Alla Tsirlin, "an employee and office manager of Benjamin Medical Care, P.C., now known as Roosevelt Medical Care, P.C.," and the Physician Affirmation of Roosevelt Cherubin, M.D., presumably the principal in Roosevelt Medical Care, P.C., which he describes, with Benjamin Medical Care, P.C., as "our office." The records and reports are further described below; they include records and reports of Benjamin/Roosevelt, and the records and reports of other health care providers. They are offered in substantial measure as "business records" pursuant to that exception to the hearsay rule.

Suffice it to say at this point that, if the records and reports, including Dr. Cherubin's affirmations (see CPLR 2106), are accepted as evidence, they raise triable issues as to each Plaintiff, in that the submissions show for each Plaintiff positive objective findings, including restricted range of motion in the cervical spine and lumbar spine, both contemporaneous with the accident and on recent examination, supported by diagnostic studies revealing disc pathology. (See Bonilla v Tortoriello, 2009 NY Slip Op 3683, * 2 [2d Dept May 5, 2009]; Gutierrez v Yonkers Contracting Co., 2009 NY Slip Op 3135, * 1- * 2 [2d Dept April 21, 2009]; Hudkins v 81st St. Parking, LLC, 2009 NY Slip Op 2972, * 1- * 2 [2d Dept April 14, 2009]; Lee v McQueens, 60 AD3d 914, 915 [2d Dept 2009]; Desir v Castillo, 59 AD3d 659, 600 [2d Dept 2009].)

Defendant contends, however, that none of the medical records or reports submitted by Plaintiffs has any probative value, citing the Second Department's recent decision in Washington v Mendoza (57 AD3d 972 [2d Dept 2008]) and the First Department's decision in Komar v Showers (227 AD2d 135 [1st Dept 1996].) These decisions, and others that address the admissibility as evidence of medical records or reports, raise a host of issues and questions that, to this Court's understanding, are not satisfactorily resolved.

In Washington v Mendoza (57 AD3d 972), the Second Department held that the plaintiff failed to raise a triable issue of fact with the "reports or records" of the treating physician or the annexed "reports or records" of other doctors:

"The so-called Certification' from the plaintiff's treating physician . . . was insufficient to affirm the contents of any of the reports or records that were annexed thereto, including his own reports. Thus, the reports or records of [other doctors] were without any ...


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