In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Martin, J.), dated April 15, 2009, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Joseph Perl did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
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 Official Reports.
MARK C. DILLON, J.P., HOWARD MILLER, RUTH C. BALKIN, JOHN M. LEVENTHAL and LEONARD B. AUSTIN, JJ.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff, Joseph Perl (hereinafter the injured plaintiff), did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The defendants' orthopedist, Dr. S. Farkas, provided a detailed explanation, including specific observations, for his conclusion that any restrictions in motion were self-imposed by the injured plaintiff and that there were no objective orthopedic findings which would indicate any disability, impairment, or limitation resulting from the accident (see Gonzales v Fiallo, 47 AD3d 760).
It is well established that in threshold serious injury cases, restrictions in range of motion typically are numerically quantified (see Friscia v Mak Auto, Inc., 59 AD3d 492, 493; Fiorillo v Arriaza, 52 AD3d 465, 466; Duke v Saurelis, 41 AD3d 770, 771; Desamour v New York City Tr. Auth., 8 AD3d 326, 327), compared to the norms (see Fiorillo v Arriaza, 52 AD3d at 466; Malave v Basikov, 45 AD3d 539; Nociforo v Penna, 42 AD3d 514, 515; McNulty v Buglino, 40 AD3d 591), and based upon identified objective tests (see Sapienza v Ruggiero, 57 AD3d 643, 644; Gastaldi v Chen, 56 AD3d 420, 421; Young Hwan Park v Orellana, 49 AD3d 721; Murray v Hartford, 23 AD3d 629; Nozine v Sav-On Car Rentals, 15 AD3d 555, 556). These requirements are applied to defendants seeking summary judgment, as well as to plaintiffs opposing summary judgment. The plaintiffs are also required to demonstrate restricted range of motion based on findings both contemporaneous to the accident (see Stevens v Sampson, 72 AD3d 793; Jack v Acapulco Car Serv., Inc., 72 AD3d 646; Sierra v Gonzalez First Limo, 71 AD3d 864; Little v Locoh, 71 AD3d 837) and upon recent findings (see Sham v B & P Chimney Cleaning & Repair Co. Inc., 71 AD3d 978; Carillo v DiPaola, 56 AD3d 712; Krauer v Hines, 55 AD3d 881, 882).
Here, Dr. Leonard Bleicher examined the injured plaintiff on May 2, 2005, shortly after the accident, as Dr. Bleicher was his treating physician. The affirmation of Dr. Bleicher, submitted in opposition to the defendants' motion for summary judgment, failed to identify the range of motion tests utilized by him, the numerical results of those tests, or the norms against which results are measured. The affirmation, therefore, failed to meet the requirements set forth in this Court's sound and well-established precedents.
We disagree with the suggestion of our dissenting colleagues that Dr. Bleicher's arguably adequate findings from the examination of the injured plaintiff on June 25, 2007, some two years after 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 were made only days after the accident. While a physician's description of "norms" may be capable of transfer from one examination to another by that physician, the same cannot be said for the quantification of an examinee's restricted motion and of the objective tests utilized to measure restrictions, since such information may differ from one examination to the next.
Where, as here, the defendants established their prima facie entitlement to judgment as a matter of law, the burden shifted to the plaintiffs opposing summary judgment to raise in admissible form triable issues of fact (see Gaddy v Eyler, 79 NY2d at 956-957; Franco v Akram, 26 AD3d 461; D'Amato v Mandello, 2 AD3d 482). With respect to Dr. Bleicher's May 2, 2005, examination of the injured plaintiff, 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 2005 findings, is not supported by the applicable law and can only be reached by disregarding this Court's precedent which we are not prepared here to sanction.
We also disagree with our dissenting colleagues' conclusion that Dr. Bleicher's affirmation was sufficient to raise a triable issue of fact based upon a qualitative assessment of the injured plaintiff's condition, both contemporaneous to the accident and recently (see Toure v Avis Rent A Car Sys., 98 NY2d at 350-351). For a qualitative evaluation to suffice, the Court of Appeals has held that it must have "an objective basis and compares the plaintiff's limitations to the 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). Here, the plaintiffs did 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 2005 examination of the injured plaintiff deprives the plaintiffs of admissible qualitative assessment opinion.
The plaintiffs' remaining contentions are ...