Puentes v. Martinez

Appellate Division of the Supreme Court of New York

Puentes v. Martinez

309 A.D.2d 675, 765 N.Y.S.2d 864, 2003 N.Y. App. Div. LEXIS 11151

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 28, 2003

StatusPublished

This text of 309 A.D.2d 675 (Puentes v. Martinez) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Puentes v. Martinez, 309 A.D.2d 675, 765 N.Y.S.2d 864, 2003 N.Y. App. Div. LEXIS 11151 (N.Y. Ct. App. 2003).

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Opinion

—Order, Supreme Court, New York County (Milton Tingling, J.), entered May 31, 2002, which granted defendants’ motion and cross motion for summary judgment and denied, as academic, plaintiffs’ cross motion to strike defendant Martinez’s answer, unanimously affirmed, with costs.

Plaintiffs submitted unsworn medical reports from a chiropractor on the issue of serious injury, a flaw which rendered them insufficient to defeat summary judgment (see Sanchez v Romano, 292 AD2d 202 [2002]; Graham v Shuttle Bay, 281 AD2d 372 [2001]); and plaintiffs’ proffered excuse for failing to obtain an affidavit from the chiropractor was unacceptable. Even if tendered in admissible form, the reports were deficient and failed to raise a triable issue of fact as to whether any of the plaintiffs sustained a “serious injury” under Insurance Law § 5102 (d). Notably, the reports, all from the same chiropractor, do not indicate the dates of examination or treatment and do not suggest that there is any permanency with regard to any of the injuries allegedly sustained. Additionally, these reports did not properly assess plaintiffs’ limitations and are wholly speculative.

Plaintiffs’ testimony failed to rectify the deficiency. Their testimony established only that each of them had attended an unspecified number of physical therapy sessions that concluded at an unspecified date, and that none of them were currently receiving medical treatment. Plaintiffs’ subjective claims of pain, unsupported by competent medical evidence, are insufficient to withstand summary judgment (Graham v Shuttle Bay, supra). Concur — Sullivan, J.P., Rosenberger, Lerner, Friedman and Marlow, JJ.

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—Order, Supreme Court, New York County (Milton Tingling, J.), entered May 31, 2002, which granted defendants’ motion and cross motion for summary judgment and denied, as academic, plaintiffs’ cross motion to strike defendant Martinez’s answer, unanimously affirmed, with costs.

Plaintiffs submitted unsworn medical reports from a chiropractor on the issue of serious injury, a flaw which rendered them insufficient to defeat summary judgment (see Sanchez v Romano, 292 AD2d 202 [2002]; Graham v Shuttle Bay, 281 AD2d 372 [2001]); and plaintiffs’ proffered excuse for failing to obtain an affidavit from the chiropractor was unacceptable. Even if tendered in admissible form, the reports were deficient and failed to raise a triable issue of fact as to whether any of the plaintiffs sustained a “serious injury” under Insurance Law § 5102 (d). Notably, the reports, all from the same chiropractor, do not indicate the dates of examination or treatment and do not suggest that there is any permanency with regard to any of the injuries allegedly sustained. Additionally, these reports did not properly assess plaintiffs’ limitations and are wholly speculative.

Plaintiffs’ testimony failed to rectify the deficiency. Their testimony established only that each of them had attended an unspecified number of physical therapy sessions that concluded at an unspecified date, and that none of them were currently receiving medical treatment. Plaintiffs’ subjective claims of pain, unsupported by competent medical evidence, are insufficient to withstand summary judgment (Graham v Shuttle Bay, supra). Concur — Sullivan, J.P., Rosenberger, Lerner, Friedman and Marlow, JJ.

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Bluebook (online)

309 A.D.2d 675, 765 N.Y.S.2d 864, 2003 N.Y. App. Div. LEXIS 11151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/puentes-v-martinez-nyappdiv-2003.

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