Second Department: Inconsistent Findings in Defendant's Own Expert Testimony Did Not Raise Triable Issue Of Fact In "Serious Injury" Motion

In a "serious injury" CPLR 3212 motion, defendant's evidence from two different expert medical practitioners, who found that plaintiff had 25 degree range of movement and 45 degree range of movement respectively, but who both concluded that it was within "normal range", was sufficient to meet burden of showing that plaintiff did not have a serious injury, despite the defendant's expert evidence itself potentially raising an issue of fact about the exact degree of the plaintiff's condition: Layne v Drouillard 2009 NY Slip Op 06667.

Plaintiff NYPD officer commenced proceedings in Supreme Court, Kings County where defendant brought motion to dismiss alleging no serious injury within the Insurance Law 5102(d). In addition to this, issues surrounding the plaintiff's ostensible good health during retraining as an officer in another jurisdiction were relevant.

On appeal Second Department reversed:

"The defendants met their prima facie burden of showing that the 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, 956-957). The defendants' examining doctors set forth, in their affirmed medical reports, that the plaintiff had a full range of motion in his cervical and lumbar spine based on objective range of motion tests, wherein the numerical findings were compared to what is normal. In addition, the defendants submitted deposition testimony of the plaintiff showing that the plaintiff resumed his duties as a New York City police officer, passed medical and physical examinations, and attended the police academy to become a police officer in another jurisdiction. During this time, the plaintiff engaged in rigorous activities which included running, sit-ups, and push-ups (see Kasim v Defretias, 28 AD3d 611). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint."

In dissent, Angiolillo J. held that the defendant's own expert testimony, which showed inconsistent findings of fact of the range of movement of plaintiffs spine, raised a triable issue of fact sufficient to defeat defendant's motion.

"I disagree. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Where the submissions in support of the motion themselves raise a triable issue of fact, summary judgment must be denied (see Hwa Soon Um v Hoi Ku Yang, 63 AD3d 686; Robinson v Yeager, 62 AD3d 684; Locke v Buksh, 58 AD3d 698, 699). In my view, that is precisely the situation presented here. The defendants rely in support of their motion on the reports of two physicians who examined the plaintiff on their behalf. Each found that the plaintiff had a normal range of lateral motion in his lumbar spine. They did so, however, on the basis of different factual findings as to the extent of the plaintiff's range of motion and different expert opinions as to what is normal. Dr. Rafiy found that the plaintiff had a lateral range of motion in his lumbar spine of 45 degrees and that 45 degrees was normal. Dr. Zhou found that the plaintiff had a range of motion of 25 degrees in his lumbar spine and that 25 degrees was normal. Contrary to the majority's conclusion, these reports do not demonstrate the absence of issues of fact. If Dr. Rafiy is correct that the plaintiff's range of motion is 45 degrees and Dr. Zhou is correct that 25 degrees is normal, the defendant has failed to establish that the plaintiff does not have a serious injury. In fact, the defendant's experts agreed only on the conclusion that the plaintiff's range of motion was normal. A conclusory statement that a plaintiff did not sustain a serious injury, however, is insufficient to sustain summary judgment dismissing the complaint for lack of serious injury (see Landman v Sarcona, 63 AD3d 690; Powell v Prego, 59 AD3d 417, 419).

The evidence which the majority cites with respect to the plaintiff's employment and the ability to engage in physical activity which that employment involves may well defeat the plaintiff's claim at trial. On a motion for summary judgment, however, the moving party can prevail only upon establishing its entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In the absence of proof as to the results of the specific medical examinations to which the plaintiff was subjected and the specific activities in which he engages as a police officer, the defendant has not met that burden here."

Supreme Court, New York County: How CPLR 2106 Revived Otherwise Inadmissible Expert Evidence And Saved The Plaintiff's Claim In A "Serious Injury" CPLR 3212 Motion

In Uribe v Amboy Bus Co., Inc (24 Misc 3d 1217(A) 2009 NYSlipOp 51481(U)) the plaintiff, a taxi operator who was injured in an auto accident, commenced an action against defendant driver and bus operator who after discovery, moved for summary judgment against plaintiff under CPLR 3212 for plaintiff's failure to establish a "serious injury" as required under the statutory threshold provision in the Comprehensive Motor Vehicle Insurance Reparation Act of 1974 & Insurance Law 5102(d).

In addition to being an example of how CPLR 2106 is applied to allow otherwise inadmissible expert evidence, this decision is instructive with respect to the use of police accident reports and photographs in such cases.

On the plaintiff's standard of proof:

In order to satisfy the statutory threshold, the plaintiff must submit competent objective medical evidence of his or her injuries, based on the performance of objective tests (Grossman v Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept 2000]; Lopez v Senatore, 65 NY2d 1017, 1019 [1985]). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Scheer v Koubek, 70 NY2d 678, 679 [1987]).

On onus:

The defendants bear the initial burden of establishing the absence of a serious injury by tendering evidentiary proof in admissible form eliminating any material issues of fact from the case (Toure v Avis Rent A Car Sys., supra; see also Gaddy v Eyler, supra; Pirrelli v Long Is. R.R., 226 AD2d 166, 641 NYS2d 240 [1st Dept 1996]). Defendant may rely either on the sworn or affirmed statements of their examining physician, plaintiff's deposition testimony and plaintiff's unsworn physician's records (Newton v Drayton, 305 AD2d 303, 760 NYS2d 38 [1st Dept 2003]; Fragale v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 56 [2d Dept 1992]).

But, the Courts have unanimously held that a party may not use an unsworn medical report prepared by the party's own physician on a motion for summary judgment (see Grasso v Angerami, 79 NY2d 813 [1991]; Offman v Singh, 27 AD3d 284, 813 NYS2d 56 [1st Dept 2006]). Moreover, CPLR § 2106 requires a physician's statement be affirmed (or sworn) to be [*4]true under the penalties of perjury. An affirmed physician's report demonstrating that plaintiff was not suffering from any disability or consequential injury resulting from the accident is sufficient to satisfy a defendant's burden of proof (see Gaddy v Eyler, supra).

The court found that the defendants had met their burden and proved that the plaintiff had not suffered a "serious injury":

Once a defendant has made such a showing, the burden shifts to the plaintiff to come forward with prima facie evidence, in admissible form, to rebut the presumption that there is no issue of fact as to the threshold question (see Pommells v Perez, 4 NY3d 566 [2005]; Gaddy v Eyler, supra; Perez v Rodriguez, supra). A medical affirmation or affidavit based on a physician's own examination, tests, and review of the record, can support the existence and extent of a plaintiff's serious injury (O'Sullivan v Atrium Bus Co., 246 AD2d 418, 688 NYS2d 167 [1st Dept 1998]).

Despite the critical evidence in the MRI reports being neither sworn nor affirmed, it was held admissible under CPLR 2106, eventually leading the plaintiff to successfully resist the CPLR 3212 motion:

CPLR 2106
Affirmation of truth of statement by attorney, physician, osteopath or dentist
The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit

Dr. Waxman's December 8, 2006 MRI lumbar and cervical spine medical reports are unaffirmed and unsworn and would usually be inadmissible in this motion (see Grasso v Angerami, supra; Offman v Singh, supra; CPLR § 2106.) However, they are admissible evidence here, because Dr. Waxman's MRI medical records were properly referenced and reviewed by defendants' medical expert (Dr. Feuer[FN2]) in his medical affirmation (see Pommells v Perez, 4 NY3d 566, 577, n 5 [2005]; Navedo v Jaime, 32 AD3d 788, 822 NYS2d 43, [1st Dept 2004]; Brown v Achy, 9 AD3d 30, 776 NYS2d 56 [1st Dept 2004]; Gonzalez v Vasquez, 301 AD2d 438, 754 NYS2d 7 [1st Dept 2003]; Ayzen v Melendez, 299 AD2d 381, 749 NYS2d 443 [1st Dept 2002]). Angel's physician, Dr. Boppana, stated in his medical affirmation that he reviewed the [*6]plaintiff's MRI films[FN3] and incorporated their results in his conclusions.

Dr. Waxman's MRI reports indicated that plaintiff suffered a broad based disc herniation at L4-L5 with left foraminal stenosis and a disc bulge at L3-L4 with anterior thecal sac effacement, and multilevel disc bulging from C3-C4 through C6-C7 with ventral epidural space effacement.
...
Here, though the evidence presented by Angel does not rebut defendants' proof that he did not suffer serious injury under the Insurance Law § 5102 (d) categorizations of a permanent loss of use of a body organ, member, function, or system; a permanent consequential limitation of use of a body function or system; or the 90/180-day category, the objective criteria and their norms as presented in Dr. Boppana's medical affirmation has raised material issues of fact as to whether or not Angel sustained injuries under the Insurance Law § 5102 (d) category of a significant limitation of use of a body function or system category (see Pommells v Perez at 577).

The defendants also moved for summary judgment on liability, and sought to lead photographs alleged to have been taken by another of the defendant bus company's employees. That attempt was not successful, despite attempts by counsel to affirm the photographs:

The defendants also offer prime facie photographs allegedly taken after the accident by another bus driver employed by the defendant Amboy Bus Company who was just passing by the accident (see Notice of Motion, Exhibit I, Affirmation in Opposition, Exhibit 4). This unidentified bus driver allegedly named "Carmen" is never properly identified, deposed nor submitted an affidavit to authenticate the photographs. Moreover, the defendant Davis when asked about the photographs he replied that he never saw the photos and was unaware how were taken (id., Exhibit G, at 35-36):

The Court holds these photographs are inadmissible on this motion. We rely upon the Appellate Division, First Department's recent holding in Coleman v Maclas, 61 AD3d 569, 2009 NY Slip Op. 03100 [ 1st Dept. April 23, 2009]. The Court affirmed that "the [trial] court properly disregarded the uncertified police reports and unauthenticated photographs as they were inadmissible hearsay (see Figueroa v Luna, 281 AD2d 204, 206, 721 NYS2d 635 [2001] )." The Court held "Further, the affirmation by plaintiff's counsel, who had no personal knowledge of the accident, was not admissible evidence... (see Johnson v Phillips, 261 AD2d 269, 270-271, 690 NYS2d 545 [1999] )." [*8]

The defendants further sought to lead a police accident report, without calling either the police officer who had authored that report, or who had witnessed the immediate aftermath of the accident and witnessed spontaneous statements or declarations against interest made by persons who witness or who were involved in the accident. That attempt by the defendants to introduce the contents of the police accident report failed:

In addition, defendants (uncertified) copy of the New York State Department of Motor Vehicles Police Accident Report (MV-104AN (7/01)) is also inadmissible to prove liability. Uncertified police accident reports are inadmissible to indicate a parties liability because the police officer who prepared the report was not an eyewitness to the accident as it constitutes inadmissible hearsay, (see Coleman v Maclas, 61 AD3d 569, 877 NYS2d 297, 2009 NY Slip Op. 03100 [ 1st Dept. April 23, 2009]; Figueroa v Luna, 281 AD2d 204,721 NYS2d 635 [1st Dept 2001]; Ann Connors v. Duck's Cesspoool Services, Ltd., 144 AD2d 329, 533 NYS2d 942 [1st Dept 1988]; Murray v Donlan, 77 AD2d 337, 433 NYS2d 184 [1st Dept 1980]).

Moreover, the Appellate Division, First Department also recently decided Soto-Maroquin v Mellet __AD3d__, 2009 NY Slip Op 04357, *1 [1st Dept, June 4 2009], (10 days after its decision on April 23, 2009 in Coleman v Maclas, supra) that uncertified police accident reports that contain the statements made by the parties to the police officer preparing the accident report and falls into a hearsay exception under "spontaneous statements" or "declaration against interests" are also inadmissible. (cf. Soto-Maroquin v Mellet, Sup Ct, NY County, October 14, 2008, Wooten J. Index No. 108798/07 [uncertified police report contained admission from defendant], affd __AD3d__, 2009 NY Slip Op 04357, *1 [1st Dept 2009] ["consideration of uncertified police report was harmless in view of defendant's passenger's affidavit attesting to what defendants object to in the police report, namely, that defendants' vehicle struck plaintiff's vehicle in the rear"]; compare Voskin v Lemel, 52 AD3d 503, 503, 859 NYS2d 489 [2d Dept 2008] ["plaintiff's case buttressed by the certified copy of the police accident report containing the defendant's admission that he did not see the plaintiff and struck him"]; 2 McCormick on Evidence 2d §§ 271 and 272).

The defendants' motion was denied.

Supreme Court, Kings County: Res Ipsa Loquitur Doctrine: "Rarely, Not Never" Appropriate to Sustain a Summary Judgment Motion

In Gleason v The City of New York the Supreme Court provided an example of the application of the evidentiary doctrine of res ipsa loquitur and applied the Court of Appeal's reasoning that the doctrine, even when established, and the inference of negligence was accepted, was rarely sufficient to sustain summary judgment.

The plaintiff's complaint arose out of an incident that occurred when, as a serving NYPD officer, he was injured while attempting to open a faulty window that dislodged and fell on him in the men's locker room located at the 78th Precinct.

The plaintiff alleged that the defendants' liabilities were founded in common-law negligence or alternatively, under the doctrine of res ipsa loquitur, as it was a type of accident that would not have ordinarily occurred in the absence of negligence.

The City of New York filed a motion to dismiss under CPLR 3211 and under CPLR 3212 for summary judgment on the grounds that the plaintiff was unable to prove a prima facie case of negligence against it. The plaintiff filed a cross motion against the City on the basis that the res doctrine applied and the complaint was not one that ought to have been dismissed. Experienced counsel will know that summary judgment is appropriate only when no issues of fact exist. The difficulty is recognizing when this can occur in the context of the evidentiary doctrine of res ipsa loquitur.

Supreme Court, Kings County held:

To prevail on the theory of res ipsa loquitur, a plaintiff must show that (1) the event would not usually occur absent negligence, (2) the instrumentality of the injury was within the defendant's exclusive control, and (3) the plaintiff did not contribute to the cause of the accident (see Dermatossian, id.; Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]). In order to rely upon the doctrine, a plaintiff need not conclusively eliminate all other possible explanations for the incident at issue, since it is enough to present evidence from which a reasonable jury could conclude that it is more likely than not that defendant's negligence caused the injury (see Pavon v Rudin, 254 AD2d 143, 145 [1998], citing Kambat, 89 NY2d at 494).

The court, in finding that the plaintiff had failed to establish that the City of New York had exclusive control, made further observations about the doctrine:

In order to overcome the rule that res ipsa loquitur will not apply where an instrumentality is generally under the control of persons other than the defendant, a plaintiff must demonstrate that the defendant had control of sufficient exclusivity to fairly rule out the chance that the alleged defect was caused by some agency other than the defendant's negligence (see Dermatossian v New York City Tr. Auth., 67 NY2d at 228). Indeed, in the absence of any admissible proof, where the plaintiff's injury occurred in a facility which was open to, and used extensively by, over 200 police officers and numerous other employees, plaintiff fails to adequately refute the possibility that the subject window had been damaged by one of the many individuals that had access to the window each day. The traffic inside the locker room in the instant case is analogous to those situations where the allegedly defective instrumentality is open to the public, thereby obviating the element of "exclusive" control (see Ebanks v New York City Transit Authority, 70 NY2d 621, 623 [1987]; see also Dermatossian, 67 NY2d at 228). Plaintiff himself admitted to opening the subject window up to 50 times prior to the date of the accident, and he also testified that it was common for other police officers to open the subject window for ventilation because the temperature inside the locker room was often very warm. Plaintiff's testimony makes clear the fact that, subsequent to the installation of the subject window and prior to plaintiff's accident, numerous individuals had access to and operated the subject window. Under these circumstances, plaintiff cannot establish that City had the exclusive control necessary for the application of res ipsa loquitur. Similarly, plaintiff also cannot establish that the subject window was in the exclusive control of City at the time of the installation, since employees of both ECC and Arrow had access to the window at that time. Accordingly, plaintiff is not entitled to rely on res ipsa loquitur as a theory of liability against City

Even if the plaintiff had have established this element, he would have faced another problem:

...even if plaintiff had established that the theory of res ipsa loquitur was applicable, his reliance upon the doctrine in support of his cross motion for summary judgment is misplaced, since it has been held that:

"the doctrine is a rule of evidence which merely provides a permissible inference of negligence rather than a presumption... Therefore, application of the doctrine as a basis for awarding summary judgment is inappropriate..."

In Morejon v Rais Constr. Co., (7 NY3d 203 [2006]), the Court of Appeals declined to hold that summary judgment could never be appropriate in a res ipsa loquitur case, instead finding that it is justified "only in the rarest of res ipsa loquitur cases . . . when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable." In considering plaintiff's initial burden to make a prima facie showing of his entitlement to judgment as a matter of law, this court concludes that the instant case is not one of those "rare" cases where the plaintiff, relying on res ipsa loquitur, has shown not only the absence of any material issue of fact but also that the inference of negligence is "inescapable."

The Court consequently denied that part of the plaintiff's cross motion relating to a finding of liability based solely upon the res ipsa loquitur doctrine of evidence.

Supreme Court, Manhattan: Expert Testimony Reliant Upon Non Mandatory Guidelines & Fresh Particulars Not Sufficient To Defeat Summary Judgment Motion

In Alpert v Gymboree Play Programs, Inc. (2008 NY Slip Op 32988(U)) the Supreme Court in Manhattan examined the proper standard of expert testimony required to support a prima facie showing in the context of a CPLR 3212 motion.

The plaintiff was an infant injured when using playground equipment in a private supervised children playground in Manhattan. The plaintiff's complaint alleged that there was a lack of proper supervision and that the playground equipment lacked proper padding. The defendant moved for summary judgment under CPLR 3212.

The plaintiff led expert testimony from an expert witness who cited the American Society for Testing Materials Standard relating to consumer standards for home playground equipment and further to the US Consumer Product Safety Commission. The expert witness gave testimony through his report, that:

"...the proximate cause of the accident suffered by [plaintiff] was the absence of required handrails on the subject equipment and the failure of Gymboree, Inc., to require approved slip-resistant footwear. Further, it is my additional considered opinion, rendered to a reasonable degree of certainty in my areas of expertise enumerated below, that had either of the two items enumerated as the aggregate proximate cause of the accident been corrected and had there been either handrails or approved sneakers in use, the accident would not have occurred and the injuries not suffered..."

The court restated the principle that once the moving party had established a prima facie showing of entitlement to summary judgment, the burden shifted to the opposing party "to produce evidentiary proof sufficient to establish the existence of material issues of fact"

In examining the expert witness's report, the court found:

First, [the expert witness's] report alleges that the proximate cause of the accident was the lack of handrails on the A-frame apparent failure of Gymboree to require children to wear slip-resistant footwear. Neither negligence was alleged by plaintiff in the bill of particulars. “A plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory for negligence for the first time in opposition to the motion.... Second, [the expert witness] bases his conclusions on rules promulgated by the American Society for Testing and Materials and the United States Consumer Product Safety Commission. Absent evidence that a particular non-mandatory guideline or recommendation promulgated by government or professional entities have been adopted into actual practice, it will not be held to place a higher standard of‘ care on a defendant...Guidelines established by the American Society for Testing and Materials and the United States Consumer Product Safety Commission are not mandatory and are not considered in determining whether a playground apparatus was negligently designed or installed.