,
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
Present
:
HON. BRUCE D. ALPERT
Justice
TRIAL/IAS, PART 9
NASSAU COUNTY
DANIEL GRELLA,
Plaintiff,
Index No. 4 109/99
-againstMotion Sequence # 1
Motion Date: September 20,200l
NANCY J. REICH,
I
Defendant.
The following papers read on this application for summary judgment:
Notice of Motion
Answering Affirmation
Reply Affirmation
X
X
X
. Upon the foregoing papers, it is ordered that the instant application is
determined as hereinafter set forth:
The instant action was initiated by the plaintiff to recover monetary damages
for the personal injuries asserted to have been sustained when the motor vehicle owned
c and operated by the defendant came into contact with the plaintiffs motor vehicle.
The defendant ’s application is brought pursuant to Articles 32 and 5 lof the
CPLR and Insurance Law, respectively, and is premised upon the contention that the
‘
plaintiff did not sustain a qualifying injury.
To prevail in this context it is incumbent upon the defendant to demonstrate
that Mr. Grella did not sustain any condition falling within the ambit of the term “serious
injury ”, as defined within Insurance Law $5 102(d). (see, Morales v New York City Transit
Authority, _ AD2d _, 731 NYS2d 754; Mikl v Shufelt, 285 AD2d 949 [3d Dept.];
Brown v Wagg, 280 AD2d 891, Iv den 96 NY2d 911; Meyer v Gallardo, 260 AD2d 556)
“It is well established that a party moving for summary judgment must make a
prima facie showing of entitlement to judgment as a matter of law, offering sufficient
evidence to demonstrate the absence of anv material issue of fact (see, Winegrad v New
York Univ. Med. Ctr., 64 NY2d 85 1,853; Zuckerman v City of New York, 49 NY2d 557).
Failure to make such a showing requires denial of the motion regardless of the sufficiency
of the opposing papers (see, Winegrad v New York Univ. Med. Ctr., supra; Rentz v
Modell, 262 AD2d 545; Raia Indus. v Young, 124 AD2d 722).” (Republic National Bank
of New York v Zito, 280 AD2d 657,657- 658 [emphasis supplied])
Application of the governing legal principles precludes a grant of the relief
sought.
In support of her application, the defendant relies, in part, on the unsworn
.
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medical reports of physicians to whom the plaintiff submitted for nuclear and
electro-
diagnostic testing. The MRI studies submitted by moving counsel encompass both the
’ cervical and thoracic levels of the plaintiff spine. Multiple disc herniations within the
cervical region of the plaintiffs spine with anterior compression of thethecal sac is noted.
Straightening of the normal thoracic kyphosis and bulges of discs at both T 5-6
.and T 6-
7are also found. The electrodiagnostic testing to which the plaintiff submitted (EMG)
demonstrates bilateral nerve root compression at C 7-8.
The defendant ’s reliance thereon dilutes the effort to establish prima facie
entitlement to the relief sought (see, generally, Papadonikolakis v First Fidelity Leasing
Group, Inc., 283 AD2d 470; Martin v JL Distributors, Inc., 274 AD2d 420; Conway v
Cuomo, 270 AD2d 301; Flanagan v Hoeg, 212 AD2d 756) and undermines the movant
’s
attempt to eliminate all material factual issues from the litigation.
The report of Dr. Killian, the defendant ’s examining physician, though
affirmed, is not in admissible form, and therefor fails to satisfy the tender requirements
associated with summary judgment practice. (see, Zuckerman v City of New York, 49
NY2d 557,.562) In this regard the Court notes that moving counsel has not established a
basis to allow consideration of a copy of a document as secondary evidence nor is there
any indication that the original was lost. Though CPLR 2 10 1 (e) authorizes the substitution
of copies for originals, the explicit mandate of CPLR 3212 (b) should be interpreted as an
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exception thereto.
Lastly, Dr. Killian ’s review and apparent reliance on unsworn medical reports
and records of unknown derivation and pedigree, the bulk of which were exhibited to the
Court, attenuates the probative force of the opinions expressed, and, standing alone,
undercuts the effort to establish prima facie entitlement to a summary determination. (see,
Delgado v Hakim, _ AD2d _, 732 NYS2d 233; Rozengauz v Ha, 280 AD2d 534,535;
Monaco v Davenport, 277 AD2d 209; Peschanker v Loporto, 252 AD2d 485)
Based on the insufficiency of the defendant
’s presentation,
the.inadequacies
with which plaintiffs submission may be suffused may not be considered. (see, Junco v
Ranzi, _ AD2d NYS2d
,
_, 2001 N.Y. App. Div. LEXIS 11476; McCormack &
Phillips v Krim, 283 AD2d 464; Greenberg v Manlon Realty, Inc., 43 AD2d 968,969)
Accordingly, the instant application is denied.
Dated: December lo,2001
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