Uddin v. Cooper

32 A.D.3d 270, 820 N.Y.S.2d 44

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 10, 2006
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Barry Salman, J.), entered May 27, 2005, which granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiffs’ cross motion for partial summary judgment on the issue of liability, affirmed, without costs.

The medical affirmations of doctors Singh and Lewis, submitted by defendants Cooper and U-Haul, satisfied these movants’ initial burden of showing the alleged soft tissue injuries suffered by plaintiff Uddin did not constitute a “serious injury” as defined by Insurance Law § 5102 (d). The findings of those physicians were based on their personal examinations of Uddin and the unremarkable findings from relevant range-of-motion, sensory and other tests they conducted. Both physicians concluded in their reports that there was no objective evidence of a disability or need for further medical treatment and/or testing. To the extent Dr. Singh’s range-of-motion findings indicated deficiencies secondary to complaints of pain, such findings were insufficient to raise a triable issue of fact (see Shaw v Looking Glass Assoc., LP, 8 AD3d 100 [2004]). To the extent Dr. Singh found the leg-raising test was restricted, this did not create an issue as to serious injury, particularly since Uddin demonstrated a lack of cooperation with Singh’s testing efforts, and plaintiffs’ own physicians earlier reported either a “negative” or a mere “trace” positive result on the straight-leg test (see e.g. Thompson v Abbasi, 15 AD3d 95, 98 [2005]).

The MRIs, which indicated herniated discs, inter alia, were unsupported by other competent medical evidence that the herniation caused a significant limitation or a permanent consequential limitation of a body function or part (see Nagbe v Minigreen Hacking Group, 22 AD3d 326 [2005]; Thompson, 15 AD3d at 97). Plaintiffs’ range-of-motion findings via tests performed by Dr. DiGiancinto and Dr. Singh, viewed in conjunction with the MRI findings, were insufficient to raise a triable issue of fact since they were based on subjective complaints of pain.

Even though Drs. Singh and Lewis examined Uddin four years after the accident, plaintiffs’ argument that their reports failed to address the allegation of a nonpermanent injury or impairment substantially curtailing his daily activities for 90 of the first 180 days following the accident is unavailing and is insufficient to raise a triable issue of fact. Section 5102 (d) of the Insurance Law requires “a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” While it is uncontested that Uddin missed three months of work within the first 180 days, his allegations do not mention any other daily activities that were substantially hindered due to the injury.

To the extent the affirmation in opposition by Dr. DiGiancinto, Uddin’s treating neurosurgeon, noted deficiencies in the range of motion of his lumbar spine, such findings were secondary to complaints of pain and were thus insufficient to raise a triable issue of fact. Moreover, plaintiffs offered no competent medical proof that directly substantiated the claim that Uddin could not perform substantially all his daily tasks for 90 of the first 180 days due to an injury or impairment caused by the accident (Eisen v Walter & Samuels, 215 AD2d 149, 150 [1995]). Although Dr. DiGiancinto’s affirmation attempted to substantiate this claim medically, he had no personal knowledge of Uddin’s medical condition in early 2001. Inasmuch as he relied on unsworn medical reports from such period, they were hearsay and thus not probative of the issue.

We have considered plaintiffs’ remaining arguments and find them without merit. Concur — Nardelli, J.E, Williams, Catterson and Malone, JJ.