Lowe v. Bennett , 511 N.Y.S.2d 603 ( 1986 )

— Order, Supreme Court, Bronx County (Irma Santaella, J.), entered June 24, 1985, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint, affirmed, without costs or disbursements.

Plaintiffs Carlton and Marcia Lowe, en route to Canada for a vacation, were involved in an accident on August 13, 1982 when their automobile was struck in the rear by a vehicle driven by David Bennett and leased from Budget Rent-A-Car, in Grand Island, New York. As a result, Carlton Lowe claims that he suffered a significant limitation of a body function viz., a continuing inability to use or turn his neck as a result of a cervical sprain, and that he was unable to work for 93 days following the injury. He also claimed to have suffered a cerebral concussion, headaches and dizziness from postconcussion syndrome, lumbosacral sprain, and aggravation of discongenic disease of the cervical spine. Marcia Lowe claimed that she was totally incapacitated from her employment until October 16, 1982, and that she had sustained, inter alia, a cerebral concussion, postconcussion syndrome which also resulted in headaches and dizziness, and a sprain of her left shoulder.

After the action had been noticed for trial, defendants moved for summary judgment on the ground that plaintiffs’ injuries did not meet the threshold requirement of Insurance Law § 671 (recodified as Insurance Law § 5101 et seq., eff Sept. 1984). The relevant amended statute recites, in pertinent part, " 'Serious injury’ means a personal injury which results in * * * significant limitation of use of a body function or system; or 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.” (Insurance Law § 5102 [d].) Since, "[tjacit in this legislative enactment is that any injury not falling within the new definition of serious injury is minor * * * [the court must] pass on the threshold question of whether the plaintiff * * * has established a prima facie case that he sustained a serious injury within the meaning of the statute.” (Licari v Elliott, 57 NY2d 230, 235.)

At the outset, we are all in agreement that an attorney’s affidavit is sufficient to support a motion for summary judgment when it is accompanied by documentary evidence and exhibits establishing the movant’s right to relief. (See, e.g., Olan v Farrell Lines, 64 NY2d 1092; Zuckerman v City of New York, 49 NY2d 557; Bradt v Hancock Mut. Life Ins. Co., 98 AD2d 886.) In this case, defendants’ counsel offered an affidavit based wholly upon documentary evidence in his possession, consisting of uncontroverted facts or facts admitted by plaintiffs (e.g., the transcripts of plaintiffs’ depositions), hospital records and physicians’ reports provided by plaintiffs’ counsel. Contrary to plaintiffs’ assertions, defendants’ counsel did not purport to set himself up as a medical expert.

In opposition to the motion and as proof of their injuries, plaintiffs offered the affirmation of Dr. Parnés, a physician who treated the Lowes after they returned to New York. (Following observation and treatment in the emergency room of a local hospital and an overnight stay in a motel, Carlton Lowe drove from Grand Island to his home in The Bronx the day after the accident.) He prescribed a course of physiotherapy for Mrs. Lowe, and advised her to change her employment to a position which would involve less stress on her back. He also prescribed a course of physical therapy, as well as a neck brace and back support for Mr. Lowe, who, according to Dr. Parnés, was totally disabled for 93 days following the accident. Dr. Parnés was also of the opinion that Marcia was totally disabled from August 13th to November 16th. The report of Dr. Robert Mintzner, the physician at Kenmore Mercy Hospital who examined Carlton Lowe after the accident, found mild degenerative changes in the cervical spine and degenerative changes in the thoracic spine, but stated that both were otherwise normal. The medical report regarding Marcia, also made from X rays taken at the time of the accident, revealed only degenerative changes in the thoracic spine, but no fractures, concussion, dislocations or other abnormalities. In addition, she returned to work less than 60 days after the accident. Thus, except for preexisting degenerative changes, none of the injuries claimed by either plaintiff appears on the report made after the original examination.

The affirmation of Dr. Parnés is not only contradicted by the initial report, but inasmuch as it is not affirmed by him to be true under the penalties of perjury, is also not evidence competent to defeat a motion for summary judgment (see, CPLR 2106; Zoldas v Louise Cab Corp., 108 AD2d 378). As a result, plaintiffs have not met their burden. Even if the affirmation were competent, however, its contents would not be sufficient to defeat the motion since they are speculative and do not have support in the medical records. As was noted by the Court of Appeals in Lopez v Senatore (65 NY2d 1017, 1020): "[T]he insufficiency of conclusory assertions of 'serious injury’ is underscored in cases under the No-Fault Law, where 'the purpose of enacting an objective verbal definition of serious injury was to "significantly reduce the number of automobile personal injury accident cases litigated in the courts, and thereby help contain the no-fault premium.” ’ ” (Quoting Licari v Elliott, supra, at p 236, quoting Memorandum of State Executive Dept, 1977 McKinney’s Session Laws of NY, at 2448.)

Cases such as the one presented are clearly of the type which the Legislature sought to remove from the court system. Plaintiffs had no manifest physical injuries at the time of the accident, and present only claims of neck and back pain without any objective findings of injury. The conclusory allegations in Dr. Parnes’s affirmations, based on subjective findings and plaintiffs’ complaints, fail to establish a prima facie case of "serious injury”. Plaintiffs’ medical proof is doubtful at best, and is contradicted by all the competent evidence. The Legislature has made a determination to exclude certain types of claims from the judicial forum. The wisdom of that determination may not be challenged and, indeed, is not before us. What we have here are two plaintiffs who have undoubtedly suffered some pain, but who have no ascertainable serious injuries, and who have not offered satisfactory proof that their unavailability for work resulted from injuries incurred in the accident.

Thus, the complaint was properly dismissed. Concur — Sullivan, J. P., Ross and Kassal, JJ.