Kosto v. Bonelli ( 1998 )

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated August 27, 1997, which granted the separate motions of the defendants Barbara Wenz and Margaret Wenz and the defendant Antonella Bonelli for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The plaintiff sought to recover damages for injuries she sustained in an automobile accident with the defendants on August 25, 1994. The defendants moved, inter alia, for summary judgment on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Supreme Court granted the defendants’ motions. We affirm.

We reject, both on procedural and substantive grounds, the statement in the dissent that “it appears that the defendants did not meet their initial burden of establishing entitlement to judgment as a matter of law”. We note that, on appeal, the plaintiff has not made that specific argument. Indeed, such an argument would be totally unavailing. The probative medical reports of the defendants’ experts, including those of an orthopedist, Dr. Davidoff, and a neurologist, Dr. Rimalovski, prepared after physical examinations of the plaintiff in May 1996, indicated that (1) as a result of the accident, the plaintiff suffered a “lumbosacral sprain” and “soft tissue injuries”, (2) there was no evidence of “disability or any permanent type of injuries which could be linked causally” to the accident, and (3) an MRI of the plaintiff performed in September 1994 indicated “pre-existent” levels of disc herniation and dessication which were “causally unrelated” and “not due” to the accident. Contrary to the dissent’s argument, the fact that one of the defendants’ doctors found this pre-existing degenerative pattern unusual in a person of the plaintiffs age does not render the defendants’ submissions insufficient as a matter of law. That same doctor suggested the need for an “orthopedic or neurologic consultation”, a suggestion which ultimately resulted in the findings of Doctors Davidoff and Rimalovski. Under these circumstances, the defendants made a prima facie showing that the plaintiff did not suffer a serious injury within the meaning of the statute (see, Gaddy v Eyler, 79 NY2d 955, 956-957; Mickelson v Padang, 237 AD2d 495), thereby shifting the burden to the plaintiff to come forward with sufficient evidence that she sustained a serious injury (see, Gaddy v Eyler, supra; Mickelson v Padang, supra).

We agree with the Supreme Court that the plaintiffs submission in opposition, i.e., the affidavit of a licensed chiropractor, failed to meet that burden. The affidavit of the chiropractor, dated June 2, 1997, was deficient as a matter of law since (1) it failed to indicate that the opinion expressed therein was based upon a recent medical examination rather than on an earlier examination conducted over two years prior thereto in September 1994 (see, Gutierrez v Metropolitan Suburban Bus Auth., 240 AD2d 469; Attanasio v Lashley, 223 AD2d 614; Letellier v Walker, 222 AD2d 658), and (2) it noted a “loss of the lumbar range of motion” but failed to specify “the extent or degree of such limitation of motion” (Mickelson v Padang, supra, at 496; Wilkins v Cameron, 214 AD2d 557). In this regard, a decision of this Court cited by the dissent, i.e., Steuer v DiDonna (233 AD2d 494), is readily distinguishable since the chiropractor in that case “specified the degree of limitation in the range of motion of the plaintiffs * * * spine”.

The plaintiffs remaining arguments are without merit.

Accordingly, the Supreme Court properly granted the defendants’ motions for summary judgment. Mangano, P. J., Joy and Friedmann, JJ. concur.