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Irizarry v. Lindor

Supreme Court of New York, Second Department

October 16, 2013

David Irizarry, respondent,
v.
Tamara Lindor, et al., appellants, et al., defendant. Index No. 18595/10

Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E. Ferrucci of counsel), for appellants.

Irwin & Poznanski, LLP, New York, N.Y. (Joshua Brian Irwin of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, THOMAS A. DICKERSON, LEONARD B. AUSTIN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Tamara Lindor and Daniella Blanchard appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated May 10, 2012, as granted the plaintiff's motion for leave to reargue his opposition to their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, which had been granted in an order of the same court dated September 8, 2011, and, upon reargument, vacated the determination in the order dated September 8, 2011, granting those branches of their motion which were for summary judgment dismissing, insofar as asserted against them, so much of the complaint as alleged that the plaintiff sustained a permanent loss of use of a body organ, member, function, or system, a permanent consequential limitation of use of a body organ or member, and a significant limitation of use of a body function or system, and thereupon denied those branches of their motion.

ORDERED that the order dated May 10, 2012, is modified, on the law, by deleting the provision thereof, upon reargument, vacating the determination in the order dated September 8, 2011, granting those branches of the motion of the defendants Tamara Lindor and Daniella Blanchard which were for summary judgment dismissing, insofar as asserted against them, so much of the complaint as alleged that the plaintiff sustained a permanent loss of use of a body organ, member, function, or system, a permanent consequential limitation of use of a body organ or member, and a significant limitation of use of a body function or system and thereupon denying those branches of their motion, and substituting therefor a provision, upon reargument, adhering to the determination in the order dated September 8, 2011, granting those branches of their motion which were for summary judgment dismissing, insofar as asserted against them, so much of the complaint as alleged that the plaintiff sustained a permanent loss of use of a body organ, member, function, or system, a permanent consequential limitation of use of a body organ or member, and a significant limitation of use of a body function or system; as so modified, the order dated May 10, 2012, is affirmed insofar as appealed from, with costs to the appellants.

Contrary to the appellants' contention, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue, inasmuch as the court reasonably concluded that it had overlooked the certification appended to the plaintiff's medical records and reports (see Shields v. Kleiner, 93 A.D.3d 710, 711-712; Rivera v. Benaroti, 29 A.D.3d 340, 341).

Nevertheless, upon reargument, the plaintiff failed to raise a triable issue of fact in opposition to the appellants' prima facie showing that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. Contrary to the plaintiff's contention, the certification of the medical records and reports by the records custodian of the subject medical facility was not sufficient to properly place the medical conclusions and opinions contained in those records and reports before the court, since those opinions must be sworn to or affirmed under the penalties for perjury (see McLoud v. Reyes, 82 A.D.3d 848; Buntin v. Rene, 71 A.D.3d 938; Pagano v. Kingsbury, 182 A.D.2d 268, 270). Consequently, the various unaffirmed conclusions and opinions of the plaintiff's treating physicians were not submitted in a form necessary to oppose the motion (see Grasso v. Angerami, 79 N.Y.2d 813; Balducci v. Velasquez, 92 A.D.3d 626, 627-628; Scheker v. Brown, 91 A.D.3d 751, 751-752). The plaintiff's claim that these documents should nevertheless be considered is without merit, since the plaintiff demonstrated no excuse whatsoever for failing to meet the "strict requirement of tender in admissible form" (Zuckerman v. City of New York, 49 N.Y.2d 557, 562; see Merriman v. Integrated Bldg. Controls, Inc., 84 A.D.3d 897, 899).

On the other hand, the plaintiff and his treating physician, Dr. Ahmed A. Elsoury, properly relied on the reports interpreting the films of the magnetic resonance imaging scans of the cervical and lumbar regions of the plaintiff's spine performed on November 23, 2009, and December 16, 2009, even though they were unsworn, since the appellants presented the results of those scans through their expert radiologist's affirmation in support of their motion for summary judgment (see Akm Shafiqul Azam v. New York City Health & Hosps. Corp., 98 A.D.3d 595, 596; Zarate v. McDonald, 31 A.D.3d 632, 633; Thompson v. Abbasi, 15 A.D.3d 95, 97). However, the plaintiff's submissions failed to address the nonconclusory finding of the appellants' radiologist that the disc bulges and herniations observable in those scans were degenerative in nature. This rendered Dr. Elsoury's conclusion as to the cause of the bulges and herniations speculative and, thus, insufficient to raise a triable issue of fact (see II Chung Lim v. Chrabaszcz, 95 A.D.3d 950, 951; Mensah v. Badu, 68 A.D.3d 945, 945-946; Zarate v. McDonald, 31 A.D.3d at 633).

Furthermore, the limitations that Dr. Elsoury found in the range of motion of the cervical and lumbar regions of the plaintiff's spine during his most recent examination were not significant within the meaning of Insurance Law § 5102(d) (see Lively v. Fernandez, 85 A.D.3d 981, 981-982; Casco v. Cocchiola, 62 A.D.3d 640, 641; Trotter v. Hart, 285 A.D.2d 772, 773; Waldman v. Dong Kook Chang, 175 A.D.2d 204; cf. Mazo v. Wolofsky, 9 A.D.3d 452, 453; Espinoza v. Dinicola, 8 A.D.3d 225).

In light of the foregoing, upon reargument, the Supreme Court should have adhered to its determination in the order dated September 8, 2011, granting those branches of the appellants' motion which were for summary judgment dismissing, insofar as asserted against them, so much of the complaint as alleged that the plaintiff sustained a permanent loss of use of a body organ, member, function, or system, a permanent consequential limitation of use of a body organ or member, and a significant limitation of use of a body function or system.

The appellants' remaining contention is without merit.

MASTRO, J.P., DILLON, DICKERSON and AUSTIN, JJ., concur.


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