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Grossman v. Wright5/8/2000
Submitted - November 17, 1999
APPEAL by the defendant Anna Wright in three related actions to recover damages for personal injuries, etc., from an order of the Supreme Court (Gerard D'Emilio, J.), dated April 5, 1999, and entered in Suffolk County, which denied her motion for summary judgment dismissing the complaint in the action entitled Ricardo Palacios v Anna Wright, on the ground that the plaintiff therein did not sustain a serious injury within the meaning of Insurance Law §5102(d).
PER CURIAM OPINION
On this appeal, we are asked to determine if the plaintiff Ricardo Palacios, through the introduction of legally competent evidence, raised a triable issue of fact as to whether he sustained a serious physical injury within the meaning of Insurance Law §5102(d). We note at the outset that in opposition to the defendant's motion papers, which established a prima facie case of entitlement to summary judgment, the plaintiff failed to submit legally admissible evidence to support his contention that he had suffered a serious injury. The Supreme Court, however, failed to address the threshold issue of the competency of the plaintiff's submissions in determining the motion. We therefore take this opportunity to clarify the type and quality of evidence that a plaintiff must submit in order to establish that he or she has suffered a serious injury within the meaning of Insurance Law §5102(d).
This litigation is the result of a motor vehicle accident which occurred on November 6, 1994, at the intersection of Route 231 and Commack Road in North Babylon, Suffolk County. The collision gave rise to three actions, but only the action entitled Ricardo Palacios v Anna Wright, is the subject of this appeal. At the time of the accident, the defendant Anna Wright (hereinafter the defendant), was operating a motor vehicle which collided with a motor vehicle operated by Ricardo Rivera. The impact propelled the Rivera vehicle into a vehicle operated by the plaintiff Ricardo Palacios (hereinafter the plaintiff).
By summons and complaint sworn to on January 5, 1996, the plaintiff commenced this action alleging that the accident was caused solely by the negligence of the defendant, and that as a result of the accident he sustained a serious physical injury as defined by Insurance Law §5102(d). The plaintiff submitted a verified response to a request for a bill of particulars stating that his injuries consisted, inter alia, of:
"cervical sprain/strain syndrome, internal derangement, cervicocranial syndrome with myofascial pain syndrome, cervical radiculitis, * * * straightening of normal cervical lordosis, * * * lumbar spine internal derangement with herniated disc at L4-5 with thoracic radiculitis * * * a diffuse circumferential bulging of the L4-5 disc causing narrowing of the right and left neural foramen".
The plaintiff specifically alleged that as a result of the accident and the aforementioned injuries, he sustained a "significant limitation of use of a body function or system" (Insurance Law §5102 ).
Following receipt of the verified bill of particulars, the defendant moved pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that the plaintiff failed to establish that he had sustained a serious injury within the meaning of Insurance Law §5102(d). In support of her motion, the defendant supplied, inter alia, affirmed medical reports prepared by Stephen G. Zolan, an orthopedic surgeon, and M. Williams, a radiologist.
The report by Dr. Zolan was dated April 22, 1998. He stated that he conducted an independent examination of the plaintiff two days earlier. Dr. Zolan stated that the
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