Plaintiffs commenced the instant action for personal injuries after the car in which they were riding on February 5, 1997 was struck from behind by a car driven by defendant. In their complaint, both plaintiffs allege that they sustained serious injury as defined by Insurance Law § 5102 (d).
In June 2002, defendant moved for summary judgment on the ground that neither plaintiff had met the serious injury threshold. In support of the motion, defendant attached the sworn affirmation of a chiropractor, Dr. Gary Cohen, who examined both plaintiffs in May 2002 at defendant’s request. Based on his examinations and a review of prior reports, Dr. Cohen diagnosed both plaintiffs with “cervical, thoracic and lumbar strain/sprain-resolved,’ ’ and concluded that both plaintiffs were presently capable of performing all daily activities without physical restriction or limitation.
Defendant also submitted the sworn affirmation of a radiologist, Dr. Audrey Eisenstadt, who reviewed a lumbar MRI of plaintiff James Shinn, performed on April 9, 1997, two months after the accident. Although Dr. Eisenstadt noted a “dessication or drying out” of disc material at the L4-5 level, and a disc herniation at the L3-4 level, she concluded that the disc abnormalities were not traumatically induced, but rather were the result of preexisting degenerative conditions.
In opposition to defendant’s motion, plaintiffs submitted an unsworn “Physician’s Affidavit” and narrative report of their examining chiropractor, Dr. Gary Palmieri, who examined plaintiffs for the first time in 2002, as well as unsworn MRI and chiropractors’ reports from 1997. Dr. Palmieri stated that the 2002 MRI films revealed that both plaintiffs had disc herniations at the C3-4 and C4-5 levels; that such findings were consistent with the patients’ 40% restricted range of motion, orthopedic testing and subjective complaints of pain; and that these injuries were directly caused by the February 1997 auto accident.
“[A] defendant can establish that [a] plaintiffs injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiffs claim” (Grossman v Wright,
We find that defendant met her initial burden by making a prima facie showing that plaintiffs did not sustain serious injury under Insurance Law § 5102 (d) (see Martin v Schwartz,
In contrast, the unsworn affirmation and medical reports submitted by plaintiffs in opposition were not in admissible form (see Grasso v Angerami,
However, as plaintiffs correctly note, defendant raised this argument concerning the form of Dr. Palmieri’s affirmation for the first time on this appeal, and therefore it is unpreserved for appellate review. Such failure to raise this issue before the motion court constitutes a waiver of any objection (see Scudera v Mahbubur,
In order to prove the extent or degree of physical limitation, an expert may designate a numeric percentage of a plaintiffs loss of range of motion or may make a qualitative assessment of plaintiffs condition, provided that the latter evaluation has an objective basis and compares the plaintiffs limitations to the normal use of the affected body system or function (see Toure v Avis Rent A Car Sys.,
What plaintiffs’ submissions fail to do, however, is demonstrate that the cervical disc herniations or any other serious injury suffered by plaintiffs are causally related to the February 1997 accident. The record shows that after the accident, plaintiffs did not miss any work except a few hours for medical appointments. They received chiropractic treatment for approximately nine months after the accident, and, according to the unsworn chiropractor’s reports from 1997, they both had some limitations of range of motion in the cervical and lumbar spine. However, neither of them was diagnosed with cervical disc herniations. Moreover, despite a 1997 MRI showing James Shinn as having herniated and bulging discs in his lumbar spine, plaintiffs failed to address defendant’s medical evidence attributing those injuries to preexisting degenerative conditions (see Lorthe v Adeyeye,
It was not until June 2002, after plaintiffs became aware of defendant’s intent to cross-move for summary judgment based on the lack of serious injury, that plaintiffs recommenced chiropractic treatment with Dr. Palmieri. Only then, after a 4V2-year
We also reject plaintiffs’ argument that the motion court’s finding in their favor on liability necessarily includes a finding that plaintiffs sustained serious injury. In the first instance, the argument is factually flawed, as the court never found for plaintiffs on liability. Although the court did find defendant at fault for purposes of dismissing her counterclaim against plaintiff James Shinn, it did not make any finding of fault with respect to plaintiffs’ direct claims.
In any event, even had a finding of fault been made against defendant on plaintiffs’ direct claims, the threshold question of serious injury is a separate one that would still have to be resolved before proceeding to damages (see Reid v Brown,
Notes
Although the affirmation of defendant’s chiropractor, Dr. Cohen, was also unauthorized under CPLR 2106, the document was admissible since it also met the requirements of an affidavit—it was sworn to before a notary public.