Bent v. Jackson , 788 N.Y.S.2d 56 ( 2005 )

OPINION OF THE COURT

Marlow, J.

In the context of this appeal, we engage in the perennial debate over the issue of whether a plaintiff’s evidence of personal injury meets the statutory threshold set by Insurance Law § 5102 (d), “an elusive standard that all too frequently escapes facile and final resolution” (Brown v Achy, 9 AD3d 30, 31 [2004]).

Defendants established a prima facie entitlement to summary judgment by submitting evidence demonstrating that plaintiff did not sustain a serious injury (see Insurance Law § 5102 [d]). Defendants submitted affidavits of two medical doctors who, upon examining the injured plaintiff, concluded that, although there were positive MRI findings, plaintiff had normal range of motion in his cervical spine, lumbosacral spine, right shoulder and right knee (see Noble v Ackerman, 252 AD2d 392 [1998] [existence of herniated disc does not per se constitute serious injury]). The burden then shifted to plaintiffs to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law (see Gaddy v Eyler, 79 NY2d 955 [1992]), in this case a “significant limitation of use of a body function or system” (Insurance Law § 5102 [d]). Failure to raise a triable issue of fact requires a court to grant summary judgment and to dismiss the complaint (see Licari v Elliott, 57 NY2d 230 [1982]). Plaintiffs have failed to do so, and we therefore affirm the motion court’s order dismissing the complaint.

Initially, we agree with the dissent that the motion court erroneously rejected the positive results of the injured plaintiffs MRI examinations. Indeed, defendants initially presented these results on their motion for summary judgment. Thus, they were properly before the motion court (see Brown, 9 AD3d 30 [2004], supra; Gonzalez v Vasquez, 301 AD2d 438 [2003]; see also Ayzen v Melendez, 299 AD2d 381 [2002]; Pietrocola v Battibulli, 238 AD2d 864 [1997]). However, we respectfully disagree with the dissent’s position that plaintiffs’ other evidence, coupled with these positive findings, raises a triable issue of fact about serious injury.

Other than an initial evaluation of the patient on April 26, 2000, nine days after the accident, a follow-up visit two months later, on June 26, and a series of tests conducted in July, August and October of that year, the record is devoid of any competent evidence of this plaintiffs treatment.¹ In order to raise a triable issue of fact, plaintiffs’ claim that range of motion is limited must be sustained by objective medical findings that are “based on a recent examination of the plaintiff’ (Grossman v Wright, 268 AD2d 79, 84 [2000]; cf. Verderosa v Simonelli, 260 AD2d 293 [1999] [doctor’s opinion of significant limitations based upon recent personal examination of plaintiff]).

In addition to the lack of a recent medical examination, the record offers no competent evidence of any examination of the injured plaintiff after June 26, 2000 (see n 1). Indeed, in his April 23, 2001 report, Dr. Marini neither indicates he examined this plaintiff that day, nor describes any current objective testing or significant range-of-motion restriction. As for Dr. Yaffe’s report of July 7, 2000, it adds no substantive medical information to support plaintiffs’ claim.²

Although we have held that a gap in treatment goes to the weight of the evidence, not its admissibility (see Brown v Achy, supra), here there is not merely a gap in treatment. Rather, the record presents an utterly unexplained cessation of treatment. While plaintiffs’ doctor’s reports refer to a course of physical therapy, we find no competent evidence in the record detailing the course of this therapy or its frequency. Thus, based on this record, there was an initial examination, a follow-up examination, and several medical tests. There is no proof of any course of treatment or any explanation for its termination (compare Toure v Avis Rent A Car Sys., 98 NY2d 345, 355 [2002] [Court of Appeals rejected defendant’s contention that plaintiff failed to establish serious injury based on doctor’s trial testimony which relied on four-year-old exam where plaintiff’s doctor concluded that plaintiffs injuries were permanent and there was no benefit to continued treatment]; see also Brown, 9 AD3d at 34 [plaintiffs chiropractic opinion that plaintiff was treated until she reached maximal medical improvement minimally sufficient to explain gap in treatment]).

We need not reach the question of whether an unexplained gap in treatment, alone, can defeat a claim of serious injury because in the case at bar the medical proof itself is either incompetent or insufficient to raise a triable issue of fact of serious injury.

Furthermore, although the injured plaintiffs MRIs revealed several positive findings, in order to raise a triable issue of fact, these positive findings must be accompanied by objective findings of either a specific percentage of the loss of range of motion or a sufficient description of “the ‘qualitative nature’ of plaintiffs limitations ‘based on the normal function, purpose and use of the body part’ ” (Toure, 98 NY2d at 353). Plaintiffs’ submissions have done neither. While plaintiff’s doctor does ascribe the degree of range of motion in certain areas to some objective testing, he does not compare his patient’s degrees of range of motion with a normal range of motion. Indeed, in Dr. Marini’s last report dated April 23, 2001, he gives no contemporaneous range of motion restrictions at all. Accordingly, plaintiffs failed to establish the extent of physical limitation by designating a numeric percentage to range-of-motion loss or by providing normal range-of-motion degrees in order to ascertain the percentage of this patient’s restriction of movement (see Shinn v Catanzaro, 1 AD3d 195 [2003]). We therefore disagree with the dissent’s statement that plaintiffs doctor’s reports contained “measurable diminution” of “range of motion.” Had the doctor provided the degrees of normal range of motion, then this plaintiff’s range of motion limitations would have been “measurable.” In any event, “measurable diminution” is not the Insurance Law standard. Rather, plaintiffs are required to present proof of a “significant limitation of use of a body function or system” (Insurance Law § 5102 [d]).

This failure of proof is not fatal, as plaintiffs may also establish a significant limitation of range of motion if the doctor describes the qualitative nature of the patient’s limitations based on normal function, purpose and use. Here, the doctor offers no such evidence. Rather, the doctor’s opinion, that the injured plaintiffs limitation of range of motion and permanency affect “his daily living as well as his employment” and will cause “ensuing functional disabilities [a]ffecting [plaintiff] for the rest of his life,” is conclusory and is clearly tailored simply to meet statutory requirements. Accordingly, plaintiffs failed to raise genuine issues of fact, and the motion court properly granted defendants’ respective motions to dismiss the complaint (see Lopez v Senatore, 65 NY2d 1017 [1985]).

Accordingly, the order of the Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered April 17, 2003, which granted defendants’ respective motion and cross motion for summary judgment dismissing the complaint on the ground that plaintiff Audley Bent did not sustain a serious injury pursuant to Insurance Law § 5102 (d), should be affirmed, without costs.

1 . While defendants pinpoint the last examination on April 23, 2001, there is no indication in the treating doctor’s report of same that a physical exam was actually conducted that day. Rather, the report merely describes the results of previous examinations conducted a year earlier on April 26 and June 26, 2000 and test results. In any event, even assuming an exam was conducted on April 23, 2001, there is still an unexplained gap in treatment.

2 . We consider Dr. Yaffe’s report not because it was incorporated by reference by Dr. Marini in his affirmation in opposition, but rather because defendants initially relied on it in support of their motion.