The following papers were read on the defendant's motion for summary judgment
dismissing the claim: Notice of Motion, Affirmation in Support and Exhibits
annexed; Affirmation in Opposition, Physician's Affirmations, Claimants'
Affidavits, and Exhibits annexed.
This claim arises out of a collision between two automobiles; one occupied by
the claimants and operated by claimant Rafael Morillo and the other owned by the
defendant State of New York and operated by a State employee.
Defendant moves for summary judgment on the ground that neither claimant
sustained serious injury within the meaning of Insurance Law §5102(d), as a
result of the accident.
While a claimant at trial has the burden of establishing a prima facie claim of
serious injury, in a motion for summary judgment the defendant has the burden to
present sufficient evidence to demonstrate that a claimant has not sustained
serious injury. If successful, the burden shifts to the claimant to establish
that a triable issue of fact exists as to the seriousness of the injury.
See, Mulhauser v Wood, 107 AD2d 1019; Gaddy v Eyler, 79 NY2d
In support of its motion, the defendant has submitted the unsworn medical
reports of its examining physician, Edward Crane, M.D., and of Geico Insurance
Company's physician, Charles Sutro, M.D. These unsworn reports, which are not
in admissible form, may not be considered in support of the motion. See,
Parisi v Levine, 246 AD2d 583; CPLR 2106.
The unsworn medical reports of Hillcrest Radiology Associates and Kathleen
Watson, M.D. (included in Exhibit A to the defendant's submission), however,
which were annexed to the claim as filed, have been considered. It is well
settled that the defendant may rely on the unsworn reports of a claimant's own
physician in support of its motion for summary judgment. See, Pagano v
Kingsbury, 182 AD2d 268.
Upon review of these medical reports, and of the deposition testimony of both
claimants (Exhibits B and F of the defendant's submission), the Court finds that
the defendant has met its initial burden of demonstrating that neither claimant
sustained serious injury.
Claimant Rafael Morillo alleges that as the result of the accident he sustained
multiple bodily injuries including pain of the left knee, mallet injury of the
small finger on the left hand, and lower back sprain. The radiology reports
state that X-rays of Mr. Morillo's chest and lumbar spine were normal; an
ultrasound procedure performed two months after the accident found the abdomen
to be normal. A radiological examination of his left hand indicated that there
were no acute abnormalities, with no evidence of fracture, subluxation or
localized bony destruction, but that there was a deformity of the distal aspect
of the fifth finger which represents a chronic change.
The reports of Dr. Watson refer to a ruptured tendon to the distal phalanx of
Rafael Morillo's left fifth finger, preventing him from extending it,
accompanied by pain. Dr. Watson concluded that the rupture left the claimant
with a residual deformity of the finger. In addition, her reports also document
pain in the left loin area radiating to the left shoulder, and that the lower
back was improving. She stated that he engaged in a therapy program and was
taking anti-inflammatories. Dr. Watson also noted a diagnosis of low back
pain, with pain from the left leg and loin to the left chest, and a mallet
finger of the left fifth finger.
In his deposition, Rafael Morillo stated that he did not go to the hospital
immediately following the accident, but sought medical attention from Dr. Watson
the following week He also stated, at his April 14, 1997 deposition, that it
takes him longer to perform his work as a window washer, and he is no longer
able to play baseball.
Nothing in the foregoing demonstrates serious injury as set forth in Insurance
Law §5102(d). While the radiology report establishes that there is a
chronic change of the fifth finger, and Dr. Watson's report states there is a
residual deformity of the finger, neither indicates that there was a permanent
loss of use, or a permanent consequential limitation, of the finger.
Claimant Monica Morillo alleges that as the result of the accident she
sustained multiple bodily injuries to the eyes, both shoulders, facial pain,
neck pain with limited range of motion, disc bulge at L4-5 with indentation of
the dural sac resulting in upper back and lower back pain, and weakness of the
left leg. The medical reports indicate that she was treated by Emergency
Medical Service and was taken to the hospital shortly after the accident. A
radiology report on the day of the accident states that there were no fractures
of the left knee or facial bones. A radiology report nearly a month later
states that an MRI revealed that the alignment of the vertebral bodies and the
conus medullaris were normal, and bone marrow signal intensity was unremarkable;
there was a midline disc bulge at L4-5 and a slight indentation of the dural
sac, but no evidence of disc herniation or spinal stenosis at other
Dr. Watson's report states that an MRI indicated a mild disc bulge at L4-5, and
that Ms Morillo was placed on a therapy program consisting of heat, electrical
stimulation, and exercise; EMG testing was normal. She was given a lumbosacral
corset to wear for back support. She was experiencing less pain but there was
still pain with heel, toe walking, and neck pain. The report states that her
disability continues as symptoms persist.
In the claimants' Bill of Particulars (included in Exhibit A to the defendant's
submission), it is stated that Monica Morillo was disabled from her employment
for approximately three months and lost wages as a result. In her deposition,
she stated that her business was conducted in her house and consisted of selling
blouses and women's suits to friends.
Nothing in the foregoing demonstrates serious injury as set forth in Insurance
Law §5102(d). The medical reports merely state that there was a bulging
disc accompanied by pain, with no further elaboration.
The opposition to the motion on behalf of claimant Rafael Morillo includes an
affirmation by Dr. Frank Carr, in which he states that an examination of Mr.
Morillo's left fifth finger, on July 22, 2000, revealed a mallet finger
deformity, damage to the flexor tendon, flexation deformity at DIP joint, pain
and discomfort, and an inability to extend at DIP joint 50%. Mr. Morillo was
unable to grip certain objects, make a fist, and had weakness of grasp of the
left hand. Dr. Carr concludes that the symptoms, which have persisted for seven
years since the date of the accident, indicate that the injury is permanent and
that no significant improvement is foreseen. He states that there is a causal
relationship between Mr. Morillo's injury and the accident on September 16,
The foregoing raises a triable issue of fact as to the permanency of the injury
to Mr. Morillo's fifth finger, as contemplated under Insurance Law
§5102(d). See, e.g., Boyd v Pierce, 225 AD2d 867. "Permanent loss
does not require proof of a total loss of an organ, member or function, but only
proof that it operates in some limited way or operates only with persistent
pain." Couintermine v Galka, 189 AD2d 1043, 1045. "[W]hen permanence
is shown, the significance of the resulting curtailment is not material, as long
it involves some actual limitation of use [citations omitted]." Van De Bogart
v Vanderpool, 215 AD2d 915; see, also, Miller v Miller, 100
AD2d 577, revd on other grounds 68 NY2d 871.
The opposition to the motion on behalf of claimant Monica Morillo includes an
affirmation by Dr. Carr, in which he recounts his findings based on an
examination of Ms Morillo on July 22, 2000. Dr. Carr states that he found that
forward bending from an upright position of 15 degrees produced pain and
discomfort, and that left and right lateral bending to 8 degrees produced pain
and discomfort. Having reviewed a radiologic report which revealed a mild line
disc bulge at L4-5, Dr. Carr opines that the injury is permanent. He further
opines that there is a causal relationship between Ms Morillo's injury and the
accident on September 16, 1993.
Dr. Carr's medical determination that Ms Morillo was able to bend forward 15
degrees and to bend laterally 8 degrees, coupled with his determination that the
injury is permanent, demonstrates the existence of an issue of fact as to
whether she suffered a serious injury.
See, Wolfram v Vassilou
, 239 AD2d 340; Florez v Diaz
, 243 AD2d
The submissions by the claimants provide "competent medical evidence based on
objective medical findings and diagnostic tests" which demonstrates the
existence of triable issues of fact as to whether each of them sustained
serious injury within the meaning of Insurance Law §5102(d), as a result of
the accident. Eisen v Walter & Samuels, 215 AD2d 149, 150.
Accordingly, the defendant's motion for summary judgment is denied.