Opinion
Index No. 21621/2018E
05-22-2020
KEHINDE ADEWUYI, Plaintiff. v. MUSTAAPHA TAZI, TWO ALEX TAXI INC. and OLUFEMI ADEGOKE, Defendants.
Unpublished Opinion
Hon. JOHN R. HIGGITT, J.S.C.
DECISION AND ORDER
John R. Higgitt, J.S.C.
The following papers in the NYSCEF System were read on this motion for SUMMARY FOR JUDGMENT (DEFENDANT), noticed on_ and duly submitted as No. __ on the Motion Calendar of March 31, 2020
NYSCEF Doc. Nos.
Notice of Motion Order to Show Cause - Exhibits and Affidavits Annexed
31-42
Notice of Cross-Motion - Order to Show Cause - Exhibits and Affidavits Annexed
Answering Affidavit and Exhibits
46-48, 62-69
Replying Affidavit and Exhibits
71
Memoranda of Law
Filed Papers
Upon the foregoing papers, the moving defendants' motion for summary judgment on the ground that plaintiff did not sustain a "serious injury" in the subject April 23. 2017 motor vehicle accident is granted in part.
Upon the December 12. 2019 notice of motion of defendants Tazi and Two Alex Taxi Inc. and the affirmation and exhibits submitted in support thereof: defendant Adegoke's December 31,2019 affirmation in support and the exhibits submitted therewith: plaintiffs March 6. 2020 affirmation in opposition and the affidavit and exhibits submitted therewith: the moving defendants' March 27. 2020 affirmation in reply: and due deliberation: the moving defendants' motion for summary judgment on the ground that plaintiff did not sustain a "serious injury'" in the subject April 23. 2017 motor vehicle accident is granted in part.
Plaintiff claims injuries to his head, left hip and left knee, and aggravation of injuries to his lumbar spine, and alleges "serious injury" under the Insurance Law § 5102(d) categories of permanent consequential limitation, significant limitation and 90/180-day injury (see CPLR 3043 [a] [6]).
In support of the motion, the moving defendants submit the affirmed reports of orthopedic surgeon Dr. Renzoni. neurologist Dr. Sharma and radiologist Dr. Fitzpatrick, and the transcript of plaintiff s August 13. 2019. deposition testimony.
Dr. Renzoni examined plaintiff on November 4. 2019. approximately two and a half years after the accident, finding full or near-normal ranges of motion in all tested planes of movement of plaintiff s cervical and lumbar spine, hips and knees, without tenderness or spasm. All provocative testing yielded negative results, and the neurological examination was normal. Dr. Renzoni concluded that plaintiff had sustained resolved cervical, lumbar, hip and knee sprain/strain, without objective evidence of orthopedic disability.
Dr. Sharma examined plaintiff on November 5, 2019, conducting a normal examination of plaintiff s menial status, cranial nerves, motor system, reflexes, sensation, gait and coordination, and skull and spine. Dr. Sharma measured reduced ranges of motion in the tested planes of plaintiff s cervical and lumbar spine. He concluded that plaintiff had sustained resolved cervical and lumbar sprain/strain. without objective findings to support plaintiff s subjective complaints.
Dr. Fitzpatrick reviewed the films from the May 23. 2017 MRI of plaintiff s lumbar spine, finding that they depicted degenerative disc disease.
The moving defendants' proof was sufficient to demonstrate, prima facie, a lack of causal relationship between plaintiff s claimed lumbar injuries, and that plaintiff did not sustain a permanent consequential or significant limitation of use of his hip or knee (see Bianchi v Mason. 179 A.D.3d 567 [1st Dept 2020]). Because Dr. Sharma's range-of-motion findings conflicted with his conclusion that plaintiff s injuries were resolved (see Lewis v Revello. 172 A.D.3d 505 [1st Dept 2019]), and because defendants' experts' range-of-motion findings conflicted (see Johnson v Salaj, 130 A.D.3d 502 [1st Dept 2015]). the moving defendants failed to demonstrate that plaintiffs spinal injuries were not "serious" within the meaning of the statute. With respect to plaintiff s knee, the reduction in range of motion was insufficient to defeat the moving defendants' prima facie showing (see II Chung Lim v Chrabaszcz, 95 A.D.3d 950. 951 [2d Dept 2012]; McLoudv Reyes, 82 A.D.3d 848. 849 [2d Dept 2011]), and was, in any event, equal to that of plaintiffs uninjured knee (see Karounos v Doulalas, 153 A.D.3d 1166 11st Dept 2017]; Martinez v Goldmag Hacking Corp., 95 A.D.3d 682 [1st Dept 2012]). The moving defendants' experts were not required to review plaintiffs medical or imaging records prior to forming their opinions (see Laius v Ishtarq, 159 A.D.3d 433 [1st Dept 2018]: Chintam v Fenelus, 65 A.D.3d 946 [1st Dept 2009]).
The moving defendants also assert that a 2006 motor vehicle accident in which plaintiff injured his head and lower back demonstrates a lack of causal connection between the subject accident and plaintiff s claimed injuries to those body parts (see Hamilton v Marom, 178 A.D.3d 424 [1st Dept 2019]; Massillon v Regalado. 176 A.D.3d 600 [1st Dept 2019]).
The moving defendants also assert that plaintiffs testimony that he ceased all treatment four months after the accident establishes a cessation of treatment requiring explanation (see Pommells v Perez. 4 N.Y.3d 566. 574 [2005] ["a plaintiff who terminates therapeutic measures following the accident, while claiming "serious injury," must offer some reasonable explanation for having done so"]). In opposition to the motion, plaintiff averred that he ceased receiving treatment when his No-Fault benefits were terminated, which is sufficient to raise an issue as to a reasonable explanation for the cessation of treatment (see Jenkins v Livo Car Inc., 176 A.D.3d 568 [1st Dept 2019]).
In opposition, plaintiff submits the affirmed reports of orthopedic surgeon Dr. Rose and radiologist Dr. Paruchuri, and treatment records from Physical Medicine and Rehabilitation of New York (PMR).
The moving defendants did not object to the admissibility of the records submitted by plaintiff.
Plaintiffs proof of contemporaneous and recent range-of-motion limitations consistent with positive imaging and causally related to the accident was sufficient to raise an issue of fact as to whether plaintiff sustained a permanent consequential or significant limitation of use of his hip and knee (see Torres v Ndongo, 105 A.D.3d 480 [ I st Dept 2013]).
Plaintiff failed to raise an issue of fact as to his claimed head injuries. He submitted a single evaluation occurring one month after the accident but no imaging reports or records of treatment (see Cano v U-Haul Co. of Ariz., 178 A.D.3d 409 [1st Dept 2019]; Moctezuma v Garcia. 176 A.D.3d 578 [1st Dept 2019]). Plaintiff s doctor failed to explain why the prior accident could be ruled out as a cause of plaintiff s complaints (see Maraj v Fletcher. 180 A.D.3d 621 [1st Dept 2020]). Because plaintiff failed to raise an issue of fact as to causation, he may not recover for head injuries, regardless of whether it is found that he sustained some other "serious injury" (see Taylor v Delgado, 154 A.D.3d 620 [1st Dept 2017]). In any event, plaintiff abandoned the head injuries in opposition (see Kuehne & Nagel. Inc. v Baiden. 36 N.Y.2d 539 [1975]; Henry v Carr, 161 A.D.3d 424 [1st Dept 2018]). and the "serious injury" claims premised on those injuries are therefore dismissed (see Ng v NYU Langone Med. Ctr., 157 A.D.3d 549 [1st Dept 2018]).
Plaintiff failed to raise an issue of fact as his claimed lumbar injuries. His doctors acknowledged but failed to address the prior accident (see Cano, supra), and they did not report that plaintiff claimed to be asymptomatic prior to the subject accident (cf. Ortiz v Boamah. 169 A.D.3d 486 [1st Dept 2019]) or that his history was non-contributory (we Torres, supra). These omissions are significant, given that plaintiff claims exacerbation. Plaintiff s subjective assertion that he had recovered from the prior accident, unsupported by medical evidence, is insufficient to raise an issue of fact (see Mitchell v Atlantic Paratrans of NYC. Inc., 57 A.D.3d 336 [1st Dept 2008]). Accordingly, plaintiff may not recover for lumbar spine injuries.
With respect to plaintiffs 90/180-day claim, plaintiffs bill of particulars alleged that he was confined to home for six months. Plaintiff testified, however, that he was confined to his home for only five days and missed one week of work. This proof is sufficient to defeat the claim (see Abreu v Miller, 2020 NY Slip Op 01552 [1st Dept 2020]; Gordon v Hernandez, 2020 NY Slip Op 01462 [1st Dept 2020]). Plaintiff failed to raise an issue of fact.
Accordingly, it is
ORDERED, that the aspects of the moving defendants' motion for summary judgment dismissing plaintiffs claims of "serious injury" under the Insurance Law § 5102(d) category of 90/180-day injury, and premised on injuries to his head and lumbar spine, are granted, and those claims are dismissed; and it is further
ORDERED, that the motion is otherwise denied; and it is further
ORDERED, that the parties shall appear before the undersigned in Part 14. courtroom 407. at 9:30 a.m. on September 4, 2020 for a status conference.
This constitutes the decision and order of the court.