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In support of his motion, the man have submitted an attorney’s affirmation; copies of the pleadings and the woman’s bill of particulars; an uncertified copy of the police car accident report; an unsigned copy of the transcript of the woman’s examination before trial; and the sworn report of an orthopedic doctor concerning his independent orthopedic examination of the woman. Initially, the Court notes that the unsworn police accident report constitutes hearsay and is inadmissible. The unsigned deposition transcript of the woman is not in admissible form and is not considered on the man’s motion nor is the unsigned transcript accompanied by an affidavit pursuant to Civil Practice Law Rules.
Based upon a review of the admissible evidence, the man has failed to establish a legitimate entitlement to summary judgment dismissing the complaint.
The orthopedic doctor reviewed an MRI of the thoracic spine which indicated that there is a minimal posterior disc herniations causing minimal spinal injury. He also reviewed an MRI of the cervical spine performed on September 5, 2008 which states that the woman experience reversal of the cervical lordosis with multilevel disc bulges and uncovertebral joint hypertrophy, causing spinal and left foraminal stenosis at multiple levels, as well as mild cord compression at several levels as described. While disc herniation and limited range of motion based on objective findings may constitute evidence of serious injury, the orthopedic doctor does not comment on the findings and does not rule out whether the injuries were causally related to the accident.
Although the orthopedic doctor used a goniometer and tape measure to determine the woman’s range of motion of the cervical spine and shoulders, he compares his findings with the average ranges of joint motion rather than the normal ranges of motion. This creates factual issues in that he has not set forth the age group, sex, or other variable factors in determining an average range of motion, thus leaving it to the Court to speculate on what is meant by average. The orthopedic doctor’s report is deficient inasmuch as the standard of comparison used, average range of motion, does not comport with the required comparison to the normal range of motion one would expect of a healthy person of the same age, weight, and height, leaving it to the Court to speculate under what circumstances the average range of motion is determined. The orthopedic doctor’s examination revealed range of motion deficits in cervical flexion and deficits in shoulder range of motion for abduction of both shoulders; forward shoulder flexion, and D8 of both shoulders which range of motion denomination is not explained.
Additionally, although the orthopedic doctor notes there is spinal cord compression at several levels of the cervical spine, no report by an examining neurologist has been submitted to comment on the claimed injury and he also fails to address all the woman’s claimed injuries. Based upon the foregoing, the accused man has failed to demonstrate entitlement to summary judgment dismissing the complaint on the issue of whether the woman sustained a serious injury within the meaning of Insurance Law.
The orthopedic doctor did not examine the woman during the statutory period of 180 days following the accident, thus rendering his affidavit insufficient to demonstrate entitlement to summary judgment on the issue of whether the woman was unable to substantially perform all of the material acts which constituted her usual and customary daily activities for a period in excess of 90 days during the 180 days immediately following the accident.
The factual issues raised in the accused man’s moving papers preclude summary judgment. He failed to satisfy his burden of establishing a legitimate case that the woman did not sustain a serious injury. Inasmuch as the moving parties have failed to establish their legitimate entitlement to judgment as a matter of law in the first instance it is unnecessary to consider whether the opposing papers were sufficient to raise a triable issue of fact as the burden has not shifted. Accordingly, motion by the accused man for dismissal of the complaint on the serious injury threshold is denied.