Khalafov v. Wolf

2219 (a) of the papers considered on the notice of motion of Samir Khalafov (hereinafter plaintiff or Khalafov), filed on May 6, 2020, under motion sequence two, for an order pursuant to CPLR 3212 granting summary judgment in his favor on the issue of no-fault threshold on the grounds that he sustained a fracture which is a prima facie serious injury within the meaning of Insurance Law §5104. Marc Andre Wolf (hereinafter defendant or Wolf) opposed the motion. Notice of Motion Affirmation in Support Exhibit A-E Affirmation in opposition Exhibit A-B DECISION & ORDER BACKGROUND   On April 11, 2019, the plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk’s office (hereinafter KCCO). On May 14, 2019, Wolf joined issue by electronically filing a verified answer with the KCCO. The plaintiff’s verified complaint and bill of particulars allege, among other things, the following salient facts. On November 25, 2018, at approximately 2:50 P.M., Wolf was driving his 2017 motor vehicle bearing New York State registration number JDW4882 westbound near the toll plaza of the Queens Midtown Tunnel, in the County of Queens, New York. At the same time, Khalafov was also driving his 2015 motor vehicle bearing New York State license plate number HGP8532 in the same direction. At that time and place, Wolf collided with Khalafov’s vehicle (hereinafter the subject accident) causing Khalfov to sustain serious physical injury. The collision was allegedly caused by Wolf’s negligent operation of the subject vehicle. LAW AND APPLICATION A plaintiff moving for summary judgment on the issue of serious injury on the basis that plaintiff’s injuries meet the serious injury threshold requirement of Insurance Law §5102 (d) bears the initial burden of proving that he or she sustained an injury pursuant to Section 5102 (d) of the Insurance Law and that the injury was causally to the subject accident (see Damas v. Valdes, 84 AD3d 87 [2nd Dept 2011]; Elshaarawy v. U-Haul Co. of Miss., 72 AD3d 878 [2nd Dept 2010]), and must tender evidence sufficient to eliminate all material issues of fact (see generally Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once the plaintiff meets this burden, the burden then shifts to the defendant to demonstrate that there are material issues of fact; mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). Insurance Law §5102 (d) defines a “serious injury” as “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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.” The plaintiff contends that he has met the threshold injury requirements of Insurance Law §5102 (d) because he sustained a left wrist fracture due to the subject accident. A fracture is a break of a bone or of a part of a bone (see Catalan v. Empire Storage Warehouse Inc., 623 NYS2d 311 [2nd Dept 1995]). In support of the motion the plaintiff submitted the radiological reports of Drs. Yvette Davidov and John T. Rigney. Dr. Yvette Davidov’s radiological report was not affirmed pursuant to CPLR 2016 or sworn to under oath. It is therefore disregarded. The radiological report of Dr. John T. Rigney, however, was affirmed in accordance with CPLR 2106 and is admissible. Dr. Rigney offered an opinion regarding an MRI study of the plaintiff’s left wrist conducted on May 8, 2019, approximately five and one half months after the subject accident. Dr. Rigney found a fracture of the mid-scaphoid bone with resultant avascular necrosis as the sequela of an ununited fracture. Dr. Rigney opined that these findings were consistent with an injury having been suffered on the day of the accident in question. Dr. Rigney, however, qualified his finding by stating that in the absence of other documented trauma suffered by the injured patient’s left wrist and in the absence of previous left wrist complaints, doctor visits or treatments for such, the condition was causally related to the accident in question. This qualification listed by Dr. Rigley rendered his opinion conditional regarding the cause of plaintiff’s left wrist fracture. It also demonstrated that Dr. Rigley was apparently unaware of whether the plaintiff satisfied the qualification conditions he had delineated. Dr. Rigney’s radiological opinion was the only admissible medical evidence of the plaintiff’s alleged left wrist fracture. Inasmuch as the opinion regarding causation was qualified, the plaintiff was required to address each of the qualifications delineated by Dr. Rigney. Consequently, to meet his prima facie burden, the plaintiff was required to tender evidence in admissible form demonstrating that prior to the subject accident he suffered no trauma to his left wrist, had no complaints regarding his left wrist and had no doctor visits or treatments for any injury or complaints regarding his left wrist. The plaintiff annexed his own affidavit in support of the instant motion. His affidavit, however, did not address and was indeed silent on the qualification raised by Dr. Rigney. Accordingly, the plaintiff did not demonstrate entitlement to a summary judgment motion. The motion must be denied without the need to address the sufficiency of the defendant’s opposition papers (Winegrad, 64 NY2d at 853). CONCLUSION The notice of motion of Samir Khalafov for an order pursuant to CPLR 3212 granting summary judgment in his favor on the issue of no-fault threshold on the grounds that plaintiff sustained a fracture which is a prima facie serious injury within the meaning of Insurance Law §5104 is denied. The foregoing constitutes the decision and order of this Court.