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, 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.