FLORES v. STANKIEWICZ

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Docket Number

No. 2006-00543.

Attorney(S)

Harmon, Linder Rogowsky, Mineola, N.Y. (Mitchell Dranow of counsel), for respondent.

Judges

Robert J. Miller
Mark C. Dillon

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Smart Summary

Factual and Procedural Background

This case arises from an action to recover damages for personal injuries sustained by the plaintiff, Oscar Flores. The defendants, Viola Stankiewicz and others, moved for summary judgment seeking dismissal of the complaint against them on the ground that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d). The Supreme Court, Kings County, denied these motions. The defendants appealed from that order.

Legal Issues Presented

Whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d), sufficient to withstand the defendants' motions for summary judgment dismissing the complaint.
Whether the plaintiff's medical evidence and affidavits raised a triable issue of fact concerning the existence of a serious injury.
Whether the Supreme Court properly considered the plaintiff's supplemental documentary evidence submitted in opposition to the defendants' motions.

Arguments of the Parties

Defendants' Arguments

The defendants argued that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), supporting their motions for summary judgment with medical submissions.
They relied on established case law to demonstrate that the plaintiff's injuries did not meet the statutory threshold.

Plaintiff's Arguments

The plaintiff relied on the opinions of his treating neurologist and submitted reports from other physicians, although these were unsworn and unaffirmed.
The plaintiff asserted that a bulging or herniated disc, as shown on MRI, constituted evidence of serious injury.
The plaintiff submitted a "Supplemental Affirmation in Opposition" attempting to provide additional documentary proof.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Toure v Avis Rent A Car Sys., 98 NY2d 345	Definition and threshold of serious injury under Insurance Law § 5102(d).	Used to establish the standard for serious injury and to evaluate the defendants' prima facie showing.
Gaddy v Eyler, 79 NY2d 955	Clarification of serious injury criteria.	Supported the defendants' burden in summary judgment by defining serious injury.
Kearse v New York City Tr. Auth., 16 AD3d 45	Requirements for objective evidence of serious injury.	Applied to assess the sufficiency of plaintiff's evidence regarding disc injury and physical limitations.
Vallejo v Builders for Family Youth, Diocese of Brooklyn, Inc., 18 AD3d 741	Evidence admissibility standards regarding unsworn reports.	Supported exclusion of unsworn and unaffirmed medical reports submitted by plaintiff.
Mahoney v Zerillo, 6 AD3d 403	Limits on consideration of unsworn medical evidence.	Reinforced the court's refusal to consider certain medical opinions.
Friedman v U-Haul Truck Rental, 216 AD2d 266	Admissibility of medical evidence in opposition to summary judgment.	Used to exclude improperly supported medical opinions.
Zarate v McDonald, 31 AD3d 632	Consideration of uncertified medical reports relied upon by defendants.	Allowed the court to consider plaintiff's MRI report despite lack of certification.
Ayzen v Melendez, 299 AD2d 381	Use of medical evidence in summary judgment context.	Supported consideration of MRI evidence submitted by plaintiff.
Yakubov v CG Trans Corp., 30 AD3d 509	Requirement of objective evidence of physical limitations and duration for disc injuries.	Applied to determine that plaintiff's evidence was insufficient to show serious injury.
Diaz v Turner, 306 AD2d 241	Standards for proving serious injury from disc conditions.	Used to reinforce insufficiency of plaintiff's affidavit and evidence.
Bravo v Rehman, 28 AD3d 694	Proof of inability to perform daily activities for statutory period.	Applied in assessing plaintiff's failure to show such incapacity.
Sainte-Aime v Ho, 274 AD2d 569	Evidence required to prove serious injury under Insurance Law § 5102(d).	Supported the court's conclusion that plaintiff did not meet the statutory threshold.
Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416	Procedural rules regarding sur-replies and supplemental affirmations.	Justified the court's refusal to consider plaintiff's supplemental affirmation as improper sur-reply.
Voytek Tech. v Rapid Access Consulting, 279 AD2d 470	Procedural limits on pleadings and supplemental submissions.	Supported exclusion of plaintiff's supplemental documentary proof.

Court's Reasoning and Analysis

The court reversed the Supreme Court's order denying summary judgment, finding that the defendants met their prima facie burden by submitting evidence that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d). The court carefully examined the plaintiff's medical evidence and found that the opinions based on unsworn and unaffirmed reports were not properly considered. Although the plaintiff submitted a magnetic resonance imaging (MRI) report, it was uncertified but properly considered because it was relied upon by the defendants. The court determined that the MRI evidence and the neurologist’s own observations were insufficient to establish a triable issue of fact regarding serious injury. Specifically, the presence of a bulging or herniated disc alone did not constitute serious injury without objective evidence of the physical limitations and their duration. The plaintiff's affidavit failed to provide such evidence. Additionally, the plaintiff did not present competent medical proof that he was unable to perform substantially all daily activities for at least 90 of the first 180 days after the accident, as required by statute. The court also held that the plaintiff's attempt to introduce additional documentary evidence through a "Supplemental Affirmation in Opposition" was procedurally improper and thus not considered.

Holding and Implications

The court's decision was to REVERSE the Supreme Court's order and GRANT the defendants' motions for summary judgment dismissing the complaint insofar as asserted against them. The direct effect is that the plaintiff's complaint was dismissed for failure to show a serious injury under Insurance Law § 5102(d). No new precedent was created; the ruling applied established legal principles to the facts of this case.

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OSCAR FLORES, Respondent, v. VIOLA STANKIEWICZ et al., Appellants.

Ordered that the order is reversed, on the law, with one bill of costs to the defendants, and the respective motions for summary judgment dismissing the complaint insofar as asserted against the defendants are granted.

The defendants satisfied their respective burdens on this motion for summary judgment dismissing the complaint by establishing, prima facie, on the basis of the same submissions, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) ( see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; Kearse v New York City Tr. Auth., 16 AD3d 45).

In opposition, the plaintiff failed to raise a triable issue of fact. The opinions expressed by the plaintiffs treating neurologist asserted on the basis of the unsworn and unaffirmed reports of other physicians were not properly considered by the court ( see Vallejo v Builders for Family Youth, Diocese of Brooklyn, Inc., 18 AD3d 741; Mahoney v Zerillo, 6 AD3d 403; Friedman v U-Haul Truck Rental, 216 AD2d 266). The conclusions reached by the neurologist on the basis of his own observations and the magnetic resonance imaging report submitted by the plaintiff, which, although uncertified, was properly considered because it was relied upon by the defendants ( see Zarate v McDonald, 31 AD3d 632; Ayzen v Melendez, 299 AD2d 381), were insufficient to raise a triable issue of fact as to the existence of a serious injury within the meaning of the statute. A bulging or herniated disc is not evidence of serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration ( see Yakubov v CG Trans Corp., 30 AD3d 509; Kearse v New York City Tr. Auth., supra; Diaz v Turner, 306 AD2d 241). The plaintiffs affidavit was insufficient to satisfy that requirement ( see Yakubov v CG Trans Corp., supra). The plaintiff also failed to proffer competent medical evidence that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the accident ( see Bravo v Rehman, 28 AD3d 694; Sainte-Aime v Ho, 274 AD2d 569).

The Supreme Court should not have considered the plaintiffs alleged documentary proof as it was submitted in counsel's self-entitled "Supplemental Affirmation in Opposition," which was, in effect, an improper sur-reply ( see CPLR 2214; Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416; Voytek Tech. v Rapid Access Consulting, 279 AD2d 470).