Lead Opinion
OPINION OF THE COURT
This personal injury lawsuit emerges from an automobile accident, and once again presents us with the sometimes frustrating task of deciding when evidence presented on a motion for summary judgment meets the “serious injury” threshold (Insurance Law § 5102 [d]), an elusive standard that all too frequently escapes facile and final resolution. In determining a motion for summary judgment where the issue is whether plaintiff has sustained a serious injury defined by Insurance Law § 5102 (d), the defendant bears the initial burden to present competent evidence that the plaintiff has no cause of action (see Rodriguez v Goldstein,
However, plaintiffs submissions in response to the respective motions, when viewed in their entirety, constitute objective evidence sufficient to raise a triable issue of fact as to serious injury. Plaintiff, in addition to the MRI report, relies on the results of an EMG/NCV (electromyogram and nerve conduction velocity) study, initially submitted in support of defendants’ motions, with abnormal findings at C5-6 and L5-S1. The results of the NCV test, conducted within six months of the accident, were included in a report prepared by plaintiff’s neurologist dated June 11, 1998, together with his observations that plaintiff suffered from decreased range of motion in her head, neck and lower back. In addition, plaintiffs doctor submitted
Evidence of range of motion limitations is sufficient to defeat summary judgment (see Toure v Avis Rent A Car Sys.,
Since plaintiff has submitted competent objective evidence to confirm the findings of both the MRI and EMG/NCV studies, she has raised a triable issue of fact whether she sustained a serious injury as defined by the Insurance Law (see Aguilar, supra [nerve conduction velocity tests and MRI in conjunction with positive straight-leg raising test objective evidence of serious injury]; see also Puma v Player,
The dissent suggests that under Nitti v Clerrico (
We emphasize that our conclusion in this case is based not only on straight-leg raising tests, but on positive MRI and EMG/ NCV test results as well. Therefore, in this case, we need not determine whether our dissenting colleague’s interpretation of Nitti v Clerrico is correct, nor reach the issues of whether straight-leg raising tests alone would be sufficient under Toure, and whether our own past decisions (see e.g. Aguilar, supra; Adetunji, supra) are consistent with Toure’s reasoning.
As for the dissent’s admonition that the defense be permitted at trial to explore the subjective components of any tests used by experts to form their opinions on the subject of serious injury, that is fair and reasonable and we agree.
The more than two-year gap in treatment between plaintiffs visits to the chiropractor—the first visit within 10 days of the accident and regular visits for at least five months thereafter— and the recent examination conducted by her physician, the results of which were submitted in opposition to defendants’ respective motions, go to the weight, not the admissibility, of the evidence.
We respectfully disagree with our dissenting colleague’s position that plaintiff’s chiropractor’s opinion that plaintiff was treated until she reached her “maximal medical improvement” is insufficient as a matter of law to explain the plaintiffs gap in treatment, because, purportedly, it materially differs from the medical explanation the Court of Appeals found sufficient in Toure, i.e., that plaintiff could derive no “benefit in her continuing to seek medical treatment for this condition” (
Accordingly, we find that plaintiff has raised a triable issue of fact as to whether she sustained a serious injury under the Insurance Law, and, consequently, we need not address plaintiffs more specific claim that she sustained an injury which prevented her from performing substantially all of her daily activities for at least 90 out of the 180 days following the accident. Finally, we dismiss plaintiffs purported appeal from the decision, as no appeal lies therefrom (see Matter of Civil Serv. Empls. Assn. v Pilgrim Psychiatric Ctr.,
Notes
. While the dissent mentions plaintiffs overweight condition in his description of her, we can only conclude that he does so to imply that her injuries are causally related to her weight and therefore a factor which should deny her the opportunity to make her case on the merits before a jury. While he may be correct, plaintiffs weight is no more than one factor and raises nothing more than an additional issue for the trier of fact.
. Our dissenting colleague in footnote 1 disagrees that plaintiff’s November 9, 2000 and August 2, 2001 visits to Dr. Hausknecht were for treatment, rather than diagnosis. He seems to assert that these visits were purely made in defense of summary judgment motion practice rather than for medical reasons. However, defendants’ instant motion for summary judgment postdates both visits, which, at worst, presents an issue of fact as to plaintiffs motive for seeing Dr. Hausknecht on those two occasions. Moreover, Dr. Hausknecht concludes under oath, after specifying with numerical detail during the latter exam that the tests he administered confirmed serious injury, that plaintiff “will continue care under my supervision.” While Dr.
Dissenting Opinion
Plaintiff walked away from the scene of the subject automobile accident and thereafter traveled by subway and train from the Bronx to Long Island. Ultimately, she went for three years (from September 1998 to September 2001) without seeking medical care for her alleged serious injuries. Nonetheless, plaintiff alleges that she suffered a “serious injury” within the meaning of Insurance Law § 5102 (d). The majority, relying on “objective” evidence supplied only by unsworn and unaffirmed reports that defendants submitted for purposes of refutation, now holds that plaintiff is entitled to a trial on this issue. In my view, because plaintiff has not given us any substantive explanation for her protracted period without treatment, Supreme Court’s order dismissing her action should be affirmed. Accordingly, I respectfully dissent.
On December 25, 1997, plaintiff, who then resided at a rehabilitation center on Long Island, visited her sister in the Bronx. After the visit, while defendant Achy was driving plaintiff to a subway station, a car operated by defendant Reynoso collided with the driver’s side of the Achy vehicle. When the police arrived, plaintiff—who had been sitting in the front passenger’s seat of Achy’s car—declined their offer of ambulance transportation to a hospital, explaining that she wished to comply with her rehabilitation center’s curfew policy. Accordingly, instead of going directly from the scene of the accident to a hospital, plaintiff walked to the subway station, and thereafter made the long trip from the Bronx to Long Island by public transportation.
After arriving at the rehabilitation center, plaintiff went to the emergency room of a hospital in Bay Shore, Long Island, where she was examined, x-rayed, given Motrin and discharged, all during the evening of the day of the accident. Plaintiff alleges that she was bedridden for two weeks after the accident.
It appears that the first professional plaintiff consulted about her alleged injuries (after her brief emergency room visit) was her lawyer. According to plaintiffs deposition testimony, it was her lawyer who referred her to Dr. Jacqueline Dimalante, a chiropractor, whom plaintiff first visited 10 days after the accident. Plaintiff visited Dr. Dimalante periodically from January to July of 1998, and then once more the following September, to receive treatment for neck and back pain. During the three years from her last visit to fir. Dimalante in September 1998 until her papers opposing defendants’ summary judgment motion were submitted in September 2001, plaintiff apparently did not receive any treatment for physical complaints allegedly connected to the subject accident.
Dr. Dimalante referred plaintiff to Dr. Isaac Sultan, a neurologist, to whom plaintiff made only one visit, on June 11, 1998. In an unsworn, unaffirmed report, Dr. Sultan recommended various forms of follow-up care. Aside from seeing Dr. Dimalante several more times through September 1998, plaintiff did not avail herself of any of the follow-up care Dr. Sultan recommended. Dr. Dimalante also referred plaintiff to Dr. Howard M. Rombom, a psychologist, for treatment of an “adjustment disorder w[ith] mixed anxiety [and] depressed mood” that was alleg
An MRI of plaintiffs cervical spine was made in April 1998, apparently also upon Dr. Dimalante’s reference. According to the unsworn and unaffirmed MRI report of Dr. Michael Carlin, dated April 17, 1998, the only abnormality the MRI revealed was “[c]entral disc herniation at C3-C4.” “No other focal disc herniation is seen,” Dr. Carlin reported. The report of another physician based on an examination of the same MRI, that of Dr. Frank M. Hudak, dated September 14, 1999, reached a different conclusion. Dr. Hudak—who affirmed his report—made the following findings:
“Review of actual MRI of the claimant’s cervical spine failed to reveal an acute herniated disc at any level and no herniated disc at the particular C3-4 level as mentioned in the radiology report [of Dr. Carlin].”
In moving for summary judgment in this action, defendants submitted Dr. Hudak’s MRI report, as well as his affirmed report based on an examination of plaintiff conducted in May 1999. Dr. Hudak’s examination report noted that plaintiff’s stated height was 5 feet, 3 inches, and her weight was then 290 pounds. From the examination, Dr. Hudak concluded:
“[Plaintiff] is not disabled as a result of that accident [of December 25, 1997] and requires no further orthopedic care or physical therapy. There are no objective findings at this time to confirm the presence of an acute herniated disc in the area of the cervical spine related to the accident of 12/25/ 97.”
Among other things, Dr. Hudak took range of motion measurements for both the cervical and lumbar spine. Dr. Hudak noted that “[e]xamination of both upper extremities reveals full range of motion of shoulders, elbows, wrist, and hands with no pain noted.” He further noted that, with regard to her lower extremities, plaintiff had “bilaterally negative straight-leg raising tests.” While acknowledging that Dr. Sultan’s unaffirmed 1998 report referred to “electrophysical evidence of acute left sided L5-S1 radiculopathy,” Dr. Hudak noted that plaintiff “had no complaints of such a condition” at the time he examined her.
Defendants also submitted the affirmed report of Dr. Jay A. Rosenblum, dated March 1, 2001, which was based on a
This Court has held that, under Toure v Avis Rent A Car Sys. (
I cannot agree with the majority’s view that plaintiff has proffered a sufficient explanation for the lengthy period during which she received no treatment. Dr. Hausknecht and Dr. Dimalante opined only that plaintiff had reached the point of “maximal medical improvement.” This altogether vague and conclusory assertion, without any substantive elaboration, simply does not explain the gap in treatment. Moreover, neither physician stated that plaintiff could not derive any benefit from
Even more significantly, the majority disregards the statements of plaintiffs own experts that actually support the view that plaintiff would benefit from continuing treatment. Dr. Hausknecht, for one, concluded his affirmation with the statement that plaintiff “will continue care under my supervision” (although he failed to describe any prior care that had been provided under his supervision). In addition, an earlier report by another of plaintiffs physicians (Dr. Isaac Sultan), based on his neurological examination of plaintiff on June 11, 1998, recommended “[c]ontinu[ing] the present pain management and follow-up care,” and a “[f]ollow-up evaluation [with Dr. Sultan] in 3-4 weeks or sooner.” Again, it is uncontroverted that plaintiff never followed up as recommended by Dr. Sultan, and the majority can point to no explanation for her failure to do so.
I would further note that, even under the majority’s holding that summary judgment should be denied, defendants should have an opportunity at trial to establish that any test results submitted by plaintiff do not constitute objective evidence of serious injury because they are based on plaintiffs subjective reactions. In Nitti v Clerrico (one of the cases addressed by the Court of Appeals in the Toure decision), the Court of Appeals held that a chiropractor’s opinions concerning the plaintiffs limitation of motion did not constitute objective medical proof of serious injury because the chiropractor “testified on cross-examination that the tests he administered to reach his conclusion regarding plaintiffs limitation of motion were subjective in nature as they relied on plaintiffs complaints of pain” (
Finally, I observe that there is a troubling aspect to plaintiffs opposition to the motions for summary judgment, in that it depends, in the final analysis, on unsworn and unaffirmed reports. Specifically, Dr. Carlin’s unsworn and unaffirmed MRI report, and Dr. Sultan’s unsworn and unaffirmed report referring to certain electrodiagnostic tests, comprise the sole “objective medical evidence” (Toure,
Mazzarelli, J.P., and Gonzalez, J., concur with Marlow, J.; Andrias and Friedman, JJ., dissent in a separate opinion by Friedman, J.
Order, Supreme Court, Bronx County, entered May 6, 2002, reversed, on the law, without costs, defendants’ motions for summary judgment denied and the complaint reinstated. Appeal from decision, same court, entered on or about March 18, 2002, dismissed, without costs, as taken from a nonappealable paper.
. Contrary to the majority’s assertion, the record contains no evidence that plaintiff received any medical treatment (as opposed to diagnostic examination) after September 1998. The majority, while conceding that there was a gap in treatment of more than two yéars, miscalculates the extent of that gap, a miscalculation that appears to arise from the majority’s assumption that the period without treatment ended with the November 9, 2000 examination conducted by Dr. Hausknecht. While the November 9, 2000 examination provided part of the basis for Dr. Hausknecht’s August 2001 affirmation opposing defendants’ motion for summary judgment, the Hausknecht affirmation does not describe any treatment that Dr. Hausknecht rendered to plaintiff on November 9, 2000, on August 2, 2001 (when he again examined her), or on any other date. Rather, Dr. Hausknecht specifies, in conclusory fashion, only the diagnostic procedures he conducted. Surely, a medical examination conducted for the sole purpose of providing a basis for an expert affirmation to be used in litigation cannot be considered “treatment.” The fact that plaintiff made her two visits to Dr. Hausknecht before defendants moved for summary judgment, provides no indication that the visits had any purpose other than furthering this litigation. Both visits occurred while this action was pending, and, to reiterate, plaintiff has not identified any treatment Dr. Hausknecht provided during either visit. Surely, plaintiffs counsel anticipated that defendants would move for summary judgment. In fact, defendant Reynoso’s motion for summary judgment came just days after plaintiffs second visit to Dr. Hausknecht.
. It is noteworthy that this portion of Toure relates to the Manzano case, which was an appeal after a trial at which the plaintiffs offered the only expert testimony.