Citation Numbers: 185 Misc. 2d 383, 712 NYS2d 807
Judges: Satterfield
Filed Date: 7/14/2000
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
This is an action to recover for personal injuries allegedly sustained by plaintiff Edouard Dufresne (plaintiff) as a result of a motor vehicle accident that occurred on April 10, 1997, involving three automobiles. Plaintiff was a passenger in the vehicle driven by defendant Singh, which was struck in the rear by the vehicle owned or operated by the Cestra defendants (defendants), pushing the Singh vehicle into the stopped vehicle of the Folks defendants (Folks). All defendants, except the Cestra defendants, move for summary judgment on the grounds that there are no triable issues of fact on the issue of liability and that plaintiff failed to meet the “serious injury” threshold requirement of section 5102 (d) of the Insurance Law. The Cestra defendants move for summary judgment dismissing the complaint only on the latter ground. Plaintiffs did not submit any opposing papers.
It is well settled that summary judgment should be granted when there is no doubt as to the absence of triable issues. (See, Rotuba Extruders v Ceppos, 46 NY2d 223, 231; Andre v Pomeroy, 35 NY2d 361, 364; Taft v New York City Tr. Auth., 193 AD2d 503, 505.) As such, the function of the court on such a motion is issue finding and not issue determination. (See, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; D.B.D. Nominee v 814 10th Ave. Corp., 109 AD2d 668, 669.) The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. (See, Zuckerman v City of New York, 49 NY2d 557, 562.) If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. (See, Zuckerman v City of New York, supra.)
The summary judgment motions at issue present a situation in which plaintiff elected not to oppose the motion, which was
Here, the record unequivocally reflects that there are no triable issues of fact with regard to the liability of defendants Folks and Singh. The moving defendants laid bare their proof, and eliminated any issues of fact. No evidence was offered by either plaintiffs or the Cestra defendants to controvert the manner in which the accident occurred. Significantly, as set forth above, plaintiffs defaulted in appearing in opposition to this motion, which presents a particularly vexing problem in that the “application of the rules of summary judgment disposition presumes a litigated motion.” (Tortorello v Carlin, supra, 260 AD2d, at 205.) However, such default by the plaintiffs is of no consequence to the ultimate determination of the motion; the moving papers establish that Folks and Singh are entitled to summary judgment as a matter of law. As “ ‘[u]ncontradicted facts are deemed admitted’ * * * the factual allegations of the moving papers, uncontradicted by plaintiff, are sufficient to entitle defendants to judgment dismissing the complaint as a matter of law.” (Id., at 206.) Accordingly, defendants Folks’ and Singh’s motions for summary judgment on the issue of liability are granted, as there are no disputed triable issues of material fact, and the complaint and all cross claims are hereby dismissed against said defendants only. Having so decided, this court need not consider the summary judgment motions for lack of serious injury of the aforesaid defendants, which is rendered moot.
The Cestra defendants also move for summary judgment on the ground that plaintiff did not sustain a “serious injury”
By virtue of legislative enactment and its statutory mandates, as construed by decisional law, the “serious injury” threshold question has prompted the evolution of principles of law governing sufficiency of proof that overlay the general principles governing determinations of summary judgment motions. This court finds that the proscriptions set forth in Tortorello v Carlin (supra), that appear to foreclose the application of rules of summary judgment disposition to an unopposed motion, cannot properly be applied to a summary judgment motion on the issue of serious injury so as to preclude the court from determining, in the first instance, whether the injuries allegedly sustained by plaintiff fall within the definition of a “serious injury.” While a plaintiffs default may play a substantial factor on those summary judgment motions where the absence of opposing papers could preclude a determination on the merits of the case, the considerations at issue in those circumstances are distinguishable from the considerations governing the grant or denial of a defendant’s summary judg
The threshold question in determining a summary judgment motion on the issue of serious injury thus is the sufficiency of the moving papers, with consideration only given to opposing papers once defendant makes a prima facie showing that plaintiff did not sustain a serious injury. It is now well settled that in order for a defendant to establish that plaintiff failed to sustain a serious injury within the purview of the statute, defendant must “submit [] the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiffs claim.” (Gross-man v Wright, 268 AD2d 79, 84.) These affidavits or affirmations should be facially sufficient in that they contain original signatures of the affiant. Moreover, any medical reports submitted as evidentiary proof must be sworn. (See, Grasso v Angerami, 79 NY2d 813; Williams v Hughes, 256 AD2d 461; Fernandez v Shields, 223 AD2d 666.) Once defendant has proffered competent evidence that meets the sufficiency standard, the burden is shifted to the plaintiff to rebut the presumption that there is no issue of fact as to the threshold question. (See, Gaddy v Eyler, 79 NY2d 955, 956-957; Licari v Elliott, 57 NY2d 230, 238, supra; Grossman v Wright, 268 AD2d 79; Echeverri v Happe, 256 AD2d 304.) Logic thus dictates that in the absence of defendants’ failure to proffer competent evidence with regard to the threshold question, summary judgment must be denied, regardless of whether plaintiffs’ proffered evidence is clearly deficient, or nonexistent. See Tortorello v Carlin (260 AD2d 201, 205, supra), reiterating the principle that “ “ ‘[r]egardless of the sufficiency of the opposing papers’,” in the absence of admissible evidence sufficient to preclude any material issue of fact, summary judgment is unavailable.’ ” It is therefore the holding of this court that a summary judgment motion, pursuant to CPLR 3212, on the issue of “serious injury” may be determined on the merits in the absence of opposing papers.
Generally, if defendant’s proffered evidence is sufficient to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of section 5102 (d) (see, Grebleski v Mace, 241 AD2d 888; Fuller v Steves, 235 AD2d 863), plaintiff has the burden of coming forward with sufficient evidentiary proof, in admissible form, to raise a triable issue of fact as to whether she has suffered a serious injury within the meaning of the No-Fault Law. (See, Gaddy v Eyler, 79 NY2d 955, 956-957, supra; Licari v Elliott, 57 NY2d 230, 238, supra; Gross-man v Wright, 268 AD2d 79, supra; Echeverri v Happe, 256 AD2d 304, supra.) However, where defendant fails to proffer evidence which establishes that plaintiffs’ injuries are not serious as defined by statute, the need for plaintiff to rebut said evidence is circumvented. Here, the court’s analysis ends with
Dr. Mendelsohn’s proffered evidence, in the form of an unsworn doctor’s report, is clearly inadmissible. (See, Grasso v Angerami, 79 NY2d 813, supra; Williams v Hughes, 256 AD2d 461, supra; Fernandez v Shields, 223 AD2d 666, supra; Pagano v Kingsbury, 182 AD2d 268.) This evidence is insufficient to eliminate a genuine issue of material fact. (See, Friedman v U-Haul Truck Rental, 216 AD2d 266.) Medical reports, without • the annexation of an affidavit of the examining doctor specifically substantiating his objective findings, are insufficient to prove lack of serious injury. What is required to meet the sufficiency standard are affidavits with objective medical findings which have annexed sworn medical reports, or which incorporate by reference sworn medical reports. Such proof is not presented here. Thus, copies of Dr. Basson’s and Dr. Sultan’s sworn medical reports, standing alone, do not rise to the level of proof needed to establish, as a matter of law, that plaintiff did not sustain serious injury. Accordingly, the Cestra defendants’ motion for summary judgment on the threshold issue is denied.
. This motion was returnable initially on March 1, 2000, and appeared on the motion calendar an unprecedented four times prior to final submission, pursuant to stipulations of all parties, including plaintiffs, with the approval of the court. Plaintiffs apparently elected not to oppose the motion and cross motions, which, based upon the nature of this case, should not inure to the benefit of either party.
. Defendants move for summary judgment pursuant to Insurance Law § 5102 (d) by reference to codefendants Folks’ notice of motion, which contains all the documentary evidence in support of the aforementioned motion. Their attorney’s affirmation states: “Your affirmant for the sake of brevity adopts and incorporates by reference the affirmation * * * and exhibits attached thereto, submitted in support of co-defendants William H. Folks and H.D. McCalla-Folks’ motion for summary judgment pursuant to § 5104(a) of the Insurance Law.”
. As recognized by the Tortorello Court, entry of a judgment against a party defaulting in appearance is not mandatory. (See, Uniform Rules for Trial Cts [22 NYCRR] § 202.27.)