New York State Court of Claims

New York State Court of Claims

TIETJEN v. THE STATE OF NEW YORK, #2004-010-010, Claim No. 104016, Motion No. M-67843


Synopsis


Case Information

UID:
2004-010-010
Claimant(s):
NICOLE D. TIETJEN The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
TIETJEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104016
Motion number(s):
M-67843
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
FIXLER & ASSOCIATES, LLPBy: Paul F. LaGuttuta, III
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 5, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-4 were read and considered by the Court on defendant's motion for summary judgment:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1

Affirmation in Opposition and Exhibit....................................................................2

Attorney's Reply Affirmation...................................................................................3

Letter of Claimant's Attorney Dated March 30, 2004..............................................4

Claim No. 104016 alleges that on December 24, 2000, claimant was seriously injured in an automobile accident in the parking lot of the Jefferson Valley Mall, Town of Yorktown, Westchester County, when a van backed into the front of her stopped car. Claimant further alleges that as a result of the accident she has sustained:
"Lumbosacral spine sprain;

Loss of a range of motion in lumbosacral spine;

Lumbar Strain;

Chronic muscle spasm with cervicale radiation;

Neck pain radiating toward her left shoulder;

Said injuries required physical therapy and medication for pain;

Mild levoscoliosis;

Headaches;

Loss of range of motion cervical, lumbar spine;

Poor postural alignment;

Distinct tenderness and spasm of the left peri-scapular musculature at the central portion of the scapula with severe pain to palpation;

Inability to lift heavy objects with left upper extremity;

Inability to sit, stand and walk for extended periods of time"

(Defendant's Ex. C, ¶ 17; Claimant's Affirmation in Opposition, ¶¶ 3, 5).

Pursuant to Insurance Law § 5104(a), claimant cannot recover for non-economic loss except in the case of a "serious injury" as defined by Insurance Law § 5102(d). The statutory definition of serious injury provides in pertinent part:
"a personal injury which results in *** permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; 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."
Defendant moves for summary judgment dismissing the claim on the ground that claimant has not sustained a "serious injury" within the meaning of Insurance Law §5102(d). In support of the motion , defendant relies upon the pleadings, claimant's examination before trial, and the unsworn report of claimant's orthopedist (Exs. A-E). According to claimant's examination before trial, she made no complaints of pain at the accident scene and refused an ambulance (Defendant's Ex. D, pp 19, 22). She drove home from the accident, took two aspirin and rested for awhile before celebrating Christmas Eve with her family (id.). She had previously scheduled time off from work from December 25, 2000 through December 29, 2000 and returned to work on January 2, 2001 (Ex. D, p 25). On December 26, 2000, claimant went to DOCS and complained of pain in her neck and shoulders (Ex. D, p 23). X-rays were taken and she was given a prescription for Tylenol with codeine and a muscle relaxer (id. at 27). She only took one dosage because it made her ill (id.). Approximately one week after the accident, claimant saw her primary care physician, Dr. Rojas, and complained of neck and shoulder pain (Ex. D, pp 27-28). He prescribed Vioxx and physical therapy (id. at 28). Claimant took the Vioxx for a "couple of weeks" (id.). In March 2001, after undergoing physical therapy, claimant went to see Dr. Yormak, an orthopedist, at the recommendation of Dr. Rojas (id. at 29).

Yormak sent claimant for an MRI (id. at 30). Dr. Yormak's records state that the MRI of claimant's cervical spine "reveals no disk herniation, no impingement or other bony abnormality" (Defendant's Ex. E, p 2). Yormak directed claimant to continue with physical therapy. In the summer of 2001, claimant returned to Dr. Rojas because claimant was experiencing tightness and pinching pain in her neck and shoulders (id. at 29). Rojas prescribed physical therapy, but claimant did not partake in it because she was feeling better (id.). Claimant has not seen any other medical professionals regarding her accident (id. at 31).

Contrary to claimant's arguments in opposition to defendant's motion, the Court finds that defendant has made a prima facie showing that claimant did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Coll v Padilla, ___ AD3d ___, 2004 NY Slip Op 02337 [2d Dept, Mar. 29, 2004]). Thus, the burden shifted to claimant to come forward with evidence in admissible form sufficient to raise a triable issue of fact as to whether claimant sustained a serious injury (see Gaddy v Eyler, 79 NY2d 955; Toure v Avis Rent A Car Sys, 98 NY2d 345).

Claimant argues in opposition to defendant's motion that the unsworn report of Dr. Yormak lacks probative value[1] and, therefore, defendant has not met its initial burden of demonstrating entitlement to judgment as a matter of law. In support of her argument, claimant cites to a 1992 First Department case which held that an unsworn statement of defendant's physician contained in a medical report does not constitute evidentiary proof in admissible form sufficient to establish defendant's initial burden on its motion for summary judgment (Rodriguez v Goldstein, 182 AD2d 396). That case, however, is inapposite because here, defendant does not rely upon its own physician's report; rather, defendant relies upon the report of claimant's physician. Additionally, case law supports the proposition that a defendant may rely upon an unsworn report of the claimant's physician as a basis for a motion for summary judgment seeking dismissal on the ground that claimant did not sustain a serious injury (see Mantila v Luca, 298 AD2d 505, 511 [unsworn report of plaintiff's physician constituted competent evidence to establish a prima facie case that plaintiff did not sustain a serious injury]; Pagano v Kingsbury, 182 AD2d 268, 271 [unsworn reports of plaintiffs' physicians which demonstrated that plaintiffs had not suffered a serious injury were sufficient to meet defendant's initial burden on its motion for summary judgment]).

Claimant has failed to "provide any medical evidence of the extent or degree of her physical limitations and their duration" (Lewis v City of New York, 2 AD3d 597). Indeed, claimant has failed to submit any evidence to overcome defendant's showing (see Ersop v Variano, 307 AD2d 951 [plaintiff's opposition was insufficient to raise a triable issue of fact as to whether she sustained a serious injury]; cf. Pech v Yael Taxi Corp., 303 AD2d 733 [MRI reports revealing disc bulges, a physician's affirmation and a medical report of another physician quantifying the restrictions in plaintiff's range of motion were sufficient to defeat defendant's summary judgment motion and raised a triable issue of fact as to whether plaintiff had sustained a serious injury]). Thus, claimant has not established that she suffered any significant limitation in movement; nor did she submit any evidence sufficient to raise a triable issue of fact (Paczhowski v Santiago, ___ AD3d ___, 2004 NY Slip Op 01754 [2d Dept, Mar. 15, 2004]).

Accordingly, defendant's motion is GRANTED and Claim No. 104016 is dismissed.

April 5, 2004
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] Claimant does not dispute Yormak's findings that the MRI revealed no damage (Ex. D, p 30).