Opinion
6379/2007 212-725-5755 212-857-8230 212-412-4750
03-18-2010
Dennis Arroyo, Plaintiff, v. Horace Morris, JULDEH BAH and NIGERIYA CAR, Defendants.
Plaintiff counsel: Law Office of Mark S. Gray Counsel for defendants Juldeh Bah and Nigeriya Car: Baker, McEvoy & Moskowitz, PC Counsel for defendant Horace Morris: Wollerstein & Futoran, Esq.
Plaintiff counsel: Law Office of Mark S. Gray
Counsel for defendants Juldeh Bah and Nigeriya Car: Baker, McEvoy & Moskowitz, PC
Counsel for defendant Horace Morris: Wollerstein & Futoran, Esq.
Betty Owen Stinson, J.
This motion by defendants Juldeh Bah and Nigeriya Car ("defendants" herein) for summary judgment dismissing the plaintiffs' complaint is granted.
On April 3, 2005, plaintiff Dennis Arroyo was allegedly injured while a back-seated passenger in a taxi that struck another vehicle owned and operated by defendants. Plaintiff was transported to the emergency room of Jacobi Medical Center complaining of neck and back pain. He was examined and released with a prescription for Motrin. He reportedly began a course of physical therapy shortly thereafter for complaints of pain in his neck, back and left knee. He underwent arthroscopic surgery to his left knee four months later on August 8, 2005. Plaintiff did not return to his job as a doorman until nine months after the accident, on January 5, 2006.
Plaintiff commenced this lawsuit against the defendants in 2007, alleging injuries resulting from the subject accident including bulging spinal discs at L3-4 and L4-5, a herniated spinal disc at L5-S1, and tears of the medial and lateral menisci and anterior cruciate ligament of his left knee. He filed his note of issue on April 17, 2009, after which defendants made the instant motion for summary judgment dismissing this action for plaintiff's failure to demonstrate he had suffered a serious injury as a result of the subject accident.
Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v Associated Fur Manufacturers, 46 NY2d 1065 [1979]).
In order to recover for non-economic loss resulting from an automobile accident under New York's "No-Fault" statute, Insurance Law § 5104, the plaintiff must establish, as a threshold matter, that the injury suffered was a "serious injury" within the meaning of the statute. "Serious injury" is defined by Insurance Law § 5102(d) to include, among other things not relevant here, a "permanent loss of use of a body organ, member, function or system", a "permanent consequential limitation of use of a body organ or member", a "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 constitutes such person's usual and customary activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment."
The initial burden on a threshold motion is upon the defendants to present evidence establishing that plaintiff has no cause of action, i.e.: that no serious injury has been sustained. It is only when that burden is met that the plaintiff would be required to establish prima facie that a serious injury has been sustained within the meaning of Insurance Law § 5102(d) (Franchini v Palmieri, 1 NY3d 536 [2003]; Licari v Elliot, 57 NY2d 230 [1982]).
To make out a prima facie case of serious injury, a plaintiff must produce competent medical evidence that the injuries are either "permanent" or involve a "significant" limitation of use (Kordana v Pomelito, 121 AD2d 783 [3rd Dept 1986]). A finding of "significant limitation" requires more than a mild, minor or slight limitation of use (Broderick v Spaeth, 241 AD2d 898, lv denied, 91 NY2d 805 [1998]; Gaddy v Eyler, 167 AD2d 67, aff'd, 79 NY2d 955 [1992]). Strictly subjective complaints of a plaintiff unsupported by credible medical evidence do not suffice to establish a serious injury (Scheer v Koubek, 70 NY2d 678 [1987]).
To satisfy the requirement that plaintiff suffered a medically determined injury preventing her from performing substantially all of her material activities during 90 out of the first 180 days, a plaintiff must show that "substantially all" of her usual activities were curtailed (Gaddy, 167 AD2d 67). The "substantially all" standard "requires a showing that plaintiff's activities have been restricted to a great extent rather than some slight curtailment" (Berk v Lopez, 278 AD2d 156 [1st Dept 2000], lv denied, 96 NY2d 708).
Allegations of sprains and contusions do not fall into any of the categories of serious injury set forth in the statute (Maenza v Letkajornsook, 172 AD2d 500 [2nd Dept 1991]).Where surgery resolved the injury, with no permanent loss of use or limitation, there is no issue of a permanent serious injury (Fortune v Sacks & Sacks, 272 AD2d 277 [1st Dept 2000]).
"Proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury" (Pommels v Perez, 4 NY3d 566 [2005]). A plaintiff's subjective complaints of pain are insufficient, without more, to establish that herniated discs constitute a serious injury (Pierre v. Nanton, 279 AD2d 621 [2nd Dept 2001]).
The defendant may rely on medical records and reports prepared by plaintiff's treating physicians to establish that plaintiff did not suffer a serious injury causally related to the accident (Franchini, 1 NY3d 536). Once the burden has shifted however, an affidavit or affirmation by the person conducting a physical examination of the plaintiff is necessary to establish a serious injury, unless plaintiff is offering unsworn reports already relied upon by the defendant (Grossman v Wright, 268 AD2d 79 [3rd Dept 2000]; see also Zoldas v Louise Cab Co.,108 AD2d 378 [1st Dept 1985]). The affirmation must set forth the objective medical tests and quantitative results used to support the opinion of the expert (Grossman, 268 AD2d 79). "An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system (cite omitted)" (Toure v Avis Rent A Car Systems, 98 NY2d 345 [2002]). A conclusory affidavit of the doctor does not constitute medical evidence (Zoldas, 108 AD2d 3778; see also Lopez v Senatore, 65 NY2d 1017 [1985] [conclusory assertions tailored to meet statutory requirements insufficient to demonstrate serious injury]).
In support of the motion, defendants offered the complaint, the plaintiff's bills of particulars, his deposition testimony, affirmations by Dr. David Fisher and Dr. Gregory Montalbano, emergency room records from Jacobi Medical Center and St. Luke's Roosevelt Hospital and two operative reports describing plaintiff's arthroscopic surgeries. The bill of particulars and supplemental bill of particulars listed the injuries claimed as set forth above: bulging and herniated lumbar discs, torn mensci and a torn anterior cruciate ligament of the left knee.
Plaintiff testified that, about ten years before the accident, he began working at his present job location in "maintenance" (Deposition of Dennis Arroyo, July 22, 2008 at 18-19). His duties back then were sweeping outside the building and taking out the garbage using carts (id. 19). He only did that for two years before being promoted to doorman (id. at 20). His duties since then have been sweeping and mopping floors in the lobby daily and sitting at a desk for eight hours a day to "turn the key" and allow residents into the building (id. at 15-16, 110). Plaintiff had a prior motor vehicle accident in 2001 in which he injured his neck and back (id. at 64). A lawsuit about that earlier accident was settled before trial (id. at 64, 68-69).
At the emergency room after the subject accident, plaintiff complained of pain in his neck and back (id. at 47, 54). He had no bruises on his body as a result of the accident (id. at 56). His chest and back were x-rayed in the hospital (id. at 56-57). He felt a pain in his left knee at some point while in the emergency room and told someone about it (id. at 47, 55). He was released with a prescription for Motrin which he did not fill (id. at 57-58). About ten days later he saw Dr. Fleischer and began physical therapy which lasted eight or nine months (id. at 58, 62). He stopped physical therapy because the doctors stopped accepting his health insurance (id. at 29). Plaintiff was not confined to his bed after the accident until the August 2005 surgery on his knee, after which he stayed in bed for a week or two (id. at 108). He was, however, confined to his home for the entire eight months following the accident (id. at 109).
Plaintiff returned to his job as a doorman with the same duties in that position as before the accident (id. at 110-111). He does not wear any kind of brace on his knee or back (id. at 114). He just sits at a desk for eight hours a day, when he is not mopping and sweeping (id. at 110-111). His doctors did not tell him there was anything he should not do upon his return to work (id. at 79). Plaintiff's left knee continued hurting after his first surgery, however, so he had a second arthroscopic surgery on the same knee in April 2008 (id. at 80, 85).
Before the accident, plaintiff used to lift weights every other day and would lift about 100 pounds with "dips" or squats (id. at 97). He stopped doing that, nevertheless, about three years before the subject accident (id. at 117-118). He cannot lift weights any longer (id. at 95). He is presently 5'10" tall and weighs 240 pounds (id. at 6-7). He used to ride a bike and run around the Central Park Reservoir for 35 to 40 minutes every day before the accident (id. at 91, 94, 116). Now he is slow going upstairs, cannot carry groceries and cannot hold his four-year-old daughter for a long period of time (id. at 98-99). He cannot sleep because of the pain in his back, but he has not mentioned that to his doctors (id. at 99). He cannot sit for long periods of time, no more than the eight hours a day at his job, and even with eight hours he still goes through pain (id. at 110-111). About every two days, he feels pain in his back and cramps in his left leg (id. at 101-102).
The emergency room records from St. Luke's Roosevelt Hospital, dated February 14, 2001, following the prior motor vehicle accident, reported plaintiff's complaints of pain to his "left shoulder, upper back, leg". The primary diagnosis was "musculoskeletal strain, multiple sites". Discharge instructions were addressed to "muscle strain". Plaintiff was to follow up with an orthopedic clinic.
The emergency room records from Jacobi Medical Center, dated April 3, 2005, the date of the subject accident, reported plaintiff's complaints of neck and back pain. His chief complaint was "my back hurts". Under the heading of "objective assessment", was the notation "C-spine". An x-ray of plaintiff's chest was negative. An x-ray of his cervical spine revealed no fractures or subluxations. It was recommended he remain off duty from his job for 2 days. He was released with a prescription for Motrin. His condition upon discharge was "improved". There was no notation in the records regarding his knees or legs.
Dr. Fisher, defendants' radiologist, reviewed MRI films of plaintiff's left knee and lumbar spine, taken on May 10, 2005 and May 20, 2005, respectively. In the study performed 5 weeks after the accident, Dr. Fisher found evidence of a full thickness tear of the anterior cruciate ligament of plaintiff's left knee that appeared to be chronic and pre-date the subject accident. There was no evidence of recent traumatic injury: no edema, no bone contusion and no significant joint effusion. Other tendons and the medial and lateral menisci appeared intact. Dr. Fisher found evidence on the MRI of plaintiff's lumbar spine, performed 6-1/2 weeks after the accident, of degenerative changes at the L5-S1 level, manifested by disc dehydration and disc space narrowing. This was, in Dr. Fisher's opinion, a pre-existing condition. There were no disc herniations. A mild disc bulge found at L5-S1 was compatible with the amount of degenerative change present. Dr. Fisher found no evidence on the study showing recent traumatic injury.
The operative report following plaintiff's arthroscopic surgery on his left knee, performed 4 months after the subject accident on August 8, 2005, offered a post-operative diagnosis of tears in the medial and lateral menisci, chondromalacia, synovitis and hypertrophied plica synovialis. Dr. Zwi Weinberg performed partial medial and lateral meniscectomies, synovectomy, chondroplasty and resection of the plica synovialis. No mention was made of damage to the anterior cruciate ligament or any other ligament.
The operative report of the second left knee surgery performed in April 2008 diagnosed plaintiff's problem, once again, as torn medial and lateral menisci, chondromalacia of the patella, synovitis and fibrosis. Using an arthroscopic shaver, Dr. Mark S. McMahon debrided the torn menisci, the cartilage damage beneath the patella, the inflamed synovial tissue and the fibrotic material. No mention was made of damage to the anterior cruciate ligament or any other ligament or of the changes to the knee stemming from the first surgery.
Dr. Montalbano, defendants' examining orthopedist, examined plaintiff and his medical records on April 25, 2008, finding the plaintiff to be 5' 10" tall, weighing 244 pounds. Plaintiff complained of back pain and left knee buckling. Range of motion in plaintiff's lumbar spine was substantially limited, but his straight leg raising test was negative. Plaintiff's right knee had a normal range of motion of 130 degrees of flexion. His left knee was not examined as it was still covered with surgical dressing from plaintiff's most recent operation.
Based on Dr. Montalbano's examination of the records and interview with the plaintiff, Dr. Montalbano concluded that the subject accident did not cause substantial or permanent injury to plaintiff's left knee. Had the plaintiff sustained a substantial injury to the knee at the time of the accident, such as internal derangement with tearing of the medial and lateral menisci, plaintiff would have complained of pain in the emergency room. The record did not reflect any complaints regarding his knee at that time. There would also have been clinical findings supporting that complaint, such as abnormal gait, joint swelling and effusion and decreased range of motion. Typically, there would have been an x-ray of the left knee performed, some type of knee immobilizer used, cane or crutches provided to the plaintiff and a diagnosis given with recommendation for follow up with a specialist. No such treatment was reflected in the emergency room report. The original report by the facility radiologist of the MRI study of plaintiff's left knee, performed on May 10, 2005, approximately one month after the subject accident, recorded torn medial and lateral mensci, a possible partial tear of the anterior cruciate ligament, with clinical correlation recommended, and two other partially torn ligaments. There was, however, no evidence of bone contusion or joint effusion to show acute injury. The surgical observations reported later were, therefore, in Dr. Montalbano's opinion, pre-existing degenerative type changes of the meniscus reflecting "wear and tear" and not the result of the subject accident.
Based on his physical examination of the plaintiff and the medical records provided, Dr. Montalbano also concluded that the subject accident did not cause significant or permanent injury to plaintiff's lumbar spine despite the fact that plaintiff complained of pain in his back in the emergency room. No x-ray of plaintiff's lumbar spine was performed at that time and a non-specific diagnosis was given at discharge. Dr. Montalbano opined that plaintiff likely suffered a strain of the lumbar spine because of the accident. The facility radiologist who performed an MRI study of plaintiff's lumbar spine about 1-1/2 months after the accident reported bulging discs at L3-4 and L4-5 and a herniated disc at L5-S1. Dr. Montalbano's examination revealed decreased range of motion of the lumbar spine as well as tenderness. Nevertheless, Dr. Montalbano did not believe that the accident caused a disc herniation. Dr. Montalbano's opinion was due to the absence of clinical findings at the time of evaluation in the emergency room to suggest such an injury. In addition, there is no record of treatment correlating with a severe disc herniation, such as anti-inflammatory medications, muscle relaxants and steroid medications, or evidence of timely outpatient follow up. Given those circumstances, it is more likely that the MRI findings reflected a pre-existing degenerative disc disease which was not the result of the accident.
Dr. Montalbano examined plaintiff's knees later on January16, 2009. An examination of both knees showed 5 degrees varus alignment and no effusion, tenderness or pain on patella compression. Stability examination was normal, including a negative Lachman, negative anterior and posterior drawer test and no varus or valgus instability. A McMurray's test was negative in both knees. Plaintiff's right knee range of motion was measured at 125 degrees flexion out of a normal 130 degrees. Patellofemoral clicking was noted in plaintiff's left knee and range of motion was 115 degrees flexion out of a normal 130 degrees. According to Dr. Montalbano, the 5 degrees of varus mal-alignment is symmetric and bilateral and has no relationship to any injury. The patellofemoral clicking is consistent with chondromalacia of the patella which was reported with the second surgery. The varus alignment, together with plaintiff's morbid obesity and his occupation as a doorman, were sufficient in Dr. Montalbano's opinion to explain the degenerative changes noted during the arthroscopy and are consistent with the absence of MRI or clinical findings of acute injury. Although there was a slightly diminished range of motion in plaintiff's left knee compared to the right knee, range of motion is a subjective examination parameter and can be voluntarily controlled by the examinee. There was no objective evidence, upon examination, of disuse of the left leg such as signs of muscle atrophy. In summary, Dr. Montalbano opined that neither left knee surgery was warranted as a result of the subject accident and there was no permanent injury to plaintiff's left knee resulting from that accident.
After receiving an MRI report of a lumbar spine study done two months after plaintiff's earlier 2001 motor vehicle accident, Dr. Montalbano's opinion did not change. According to Dr. Montalbano, the facility radiologist performing that study reported exaggerated lumbar lordosis suggesting muscular and/or ligamentous laxity, rotary scoliosis , bulging discs at L2-3 and L3-4 and herniated discs at L4-5 and L5-S1. These findings were very similar to those reported after plaintiff's second motor vehicle accident and further supported Dr. Montalbano's opinion that the changes to plaintiff's lumbar spine were degenerative and pre-existed the subject motor vehicle accident.
In opposition to the motion, plaintiff offered his own affidavit, the original MRI reports, three un-affirmed reports by Dr. Noel Fleischer and one by Dr. Joyce Goldenberg, two disability certificates issued by Dr. Joyce Goldenberg, the plaintiff's left knee operative reports and affirmations by Dr. Mark S. McMahon, Dr. Joyce Goldenberg and Dr. Douglas Schwartz. The contents of the original MRI reports made after the subject accident were discussed above.
Dr. Fleischer, plaintiff's neurologist, examined plaintiff on April 8, 2005 finding cervical and lumbar spasm, tenderness and "impaired range of motion", and left knee and right hip swelling and tenderness. Dr. Fleischer found a positive straight leg raising test at 45 degrees bilaterally. His initial impression was post concussion syndrome, traumatic cervical and lumbar radiculopathy and a need to rule out internal derangement of the left knee and right hip. On June 28, 2005, Dr. Fleischer followed up with plaintiff. Dr. Fleischer noted the MRI findings, an EMG study showing localized nerve root injury at L4-5 and a "borderline" EEG study. Dr. Fleischer added these findings to his initial impression and recommended continued physical therapy. Dr. Fleischer's last follow up examination took place on September 16, 2005. Dr. Fleischer reported "cervical and lumbar tenderness and impaired range of motion", and recommended continued physiotherapy. He concluded from these findings that plaintiff was totally disabled from work, the changes reported in his MRI studies were "deemed" permanent, plaintiff was under active treatment, he suffered a "serious injury" as a result of the subject motor vehicle accident and it caused him to undergo surgery to his left knee to "correct in part" his problems. Dr. Fleischer's reports were not affirmed.
Dr. Goldenberg, plaintiff's physiatrist, examined plaintiff on April 14, 2005, eleven days after the accident. Plaintiff complained of constant neck and back pain, right hip pain and left knee pain with stiffness and weakness. Dr. Goldenberg found decreased range of motion in plaintiff's cervical and lumbar spine and left knee, numerically assessed and compared to the normal. She found a negative result in a straight leg raising test on the right and only an "equivocal" result on the left due to knee pain upon elevation of the lower left extremity. Her impression was cervical sprain/whiplash, lumbar sprain, muscle spasms, possible lumbar radiculopathy and internal derangement of the left knee. She prescribed physical therapy 2 to 3 times a week and a home exercise program. Her report was not affirmed.
A disability certificate signed by Dr. Goldenberg dated September 16, 2005 stated that plaintiff was totally incapacitated from April 3, 2005 until further notice because of a diagnosis of cervical/lumbar myofascial pain syndrome and internal knee derangement status post surgery in August 2005. Dr. Goldenberg signed a second certificate on December 19, 2005 stating that plaintiff was totally incapacitated until January 4, 2006, but that he could return to work on January 5, 2006. Her diagnosis was the same as in the earlier certificate. She stated plaintiff was to avoid heavy lifting, carrying more than 10-15 pounds and prolonged standing, sitting and bending. He was to be re-evaluated monthly.
An affirmation by Dr. Goldenberg signed in September 2009 stated that she treated plaintiff after his prior motor vehicle accident in 2001, that plaintiff did not complain of pain in his left knee at that time and Dr. Goldenberg did not treat his left knee. Dr. Goldenberg also treated plaintiff after the April 2005 accident, when he complained of pain in his neck, back and left knee. Dr. Goldenberg provided "pain management" for those complaints. As a result of her examinations of plaintiff and his August 2005 surgery with Dr. Zwi Weinberg, Dr. Goldenberg concluded plaintiff had a medically determined injury and impairment to his left knee, lower back and neck that had rendered him completely incapacitated from his occupational duties as a doorman and had prevented him from performing those duties from April 3, 2005 until January 5, 2006. Specifically, he was prevented from heavy lifting and carrying items heavier than 10 to 15 pounds. He was also to avoid prolonged standing, bending and sitting. He was instructed to attend physical therapy 2 to 3 times a week.
Dr. McMahon stated in his affirmation dated August 3, 2009 that he performed arthroscopic surgery on plaintiff in April 2008, three years after the subject accident. Dr. McMahon's report of a May 9, 2008 evaluation following that surgery contained only the following statements: "The patient is recovering from surgery. He is happy with the results. He has good range of motion." Following the heading "plan" was "[g]o to physical therapy and return as needed." The next notation from an examination over one year later, on August 19, 2009, reported plaintiff's complaint of ongoing left knee pain and buckling. Range of motion was measured at that time at 0 to 90 degrees with pain, the normal being 0 to 130. Dr. McMahon found medial joint-line tenderness, patella sensitivity, but no effusion and ligaments were "intact". Range of motion of plaintiff's lumbar spine was slightly restricted with expressions of pain, the measurements numerical and compared to the normal. Dr. McMahon's diagnosis of plaintiff's knee was torn menisci, chondromalacia, synovitis, plica and partial tears of three different ligaments, including the anterior cruciate ligament, all requiring two surgeries. Dr. McMahon did not say whether the foregoing conditions were corrected by the surgery he performed, why plaintiff needed the second surgery, or to what he attributed plaintiff's continuing complaints of pain and buckling after the corrective surgery. Dr. McMahon's diagnosis of plaintiff's lumbar spine repeated the MRI findings as alleged in the plaintiff's bill of particulars. Dr. McMahon concluded plaintiff's "diagnoses" were the result of the subject accident, his "condition" permanent and this due to the fact that 5 years after the subject accident the plaintiff remained "symptomatic".
Dr. Schwartz D.O., examined plaintiff on August 20, 2009. He also reviewed certain of plaintiff's medical records from 2005 onward. Plaintiff told Dr. Schwartz he lost consciousness briefly during the subject motor vehicle accident and, upon awakening, immediately felt severe pain in his neck, lower back, left knee and right hip. His present complaints were persistent pain to his neck, lower back and "postoperative" pain to the left knee. Plaintiff reported an intolerance to prolonged sitting, standing and "excessive ambulation activities". Upon examination, Dr. Schwartz found a positive straight leg raising test and substantially restricted range of motion in plaintiff's cervical and lumbar spine, measured numerically and compared to the normal. He found reduced range of motion in plaintiff's left knee in flexion, 110 degrees out of a normal 125. Dr. Schwartz concluded plaintiff's limitations and complaints of pain were causally related to the subject accident despite having been injured in a prior accident, based on the fact plaintiff "received treatment" and "stated he had a full recovery" from the injuries in that earlier accident. Dr. Schwartz found plaintiff's injuries from the subject accident to be permanent, and predicted plaintiff would not be able to tolerate prolonged sitting/standing for more than 30 minutes, carry objects heavier than 10 pounds, or perform any number of repetitive movements. Dr. Schwartz did not address the findings of pre-existing degenerative conditions in plaintiff's lumbar spine and left knee.
Plaintiff stated in his affidavit dated September 24, 2009 that he was unable to perform any of his normal day to day activities and job duties as a doorman following the subject accident for a period of approximately 9 months. He said he was advised by his doctors that he should avoid prolonged sitting or standing and carrying heavy objects, although he did not say when this advice was given. Thus, he could not perform his activities as a doorman which consisted of prolonged periods of sitting and standing, taking out the garbage and helping residents with bags and furniture. Plaintiff did not specify how long this prohibition was to last. When he was not in physical therapy, he engaged in home exercises about 3 times a week. Plaintiff stopped attending physical therapy, at those times when he was not in attendance, because he "knew" no-fault benefits were cut off, his own insurance only covered a limited number of visits and he could not afford to pay on his own. Also he was told he would not fully recover from his injuries, so he decided to follow Dr. Goldenberg's home exercise program at home. Plaintiff still experiences pain in his left knee and difficulty kneeling and sitting, standing or walking for long periods of time. His left knee buckles. He still feels lower back pain when working and when sitting or standing for long periods of time. He still cannot take out the garbage or help residents with bags or furniture.
Defendants have established their entitlement to summary judgment which plaintiff has not refuted with admissible medical evidence. Defendants met their burden of showing by the affirmations of defendants' examining physicians, Drs. Fisher and Montalbano, that plaintiff suffers from a degenerative condition of the lower back and left knee pre-existing the subject accident. This is so even without considering Dr. Montalbano's addendum recounting his review of an MRI report of plaintiff's lumbar spine that pre-dated the subject accident. Although Dr. Montalbano reviewed and commented on it, the report itself was not offered to the court. In addition, plaintiff's deposition testimony makes clear that plaintiff did not suffer a medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all the customary acts constituting his daily activities for 90 out of the first 180 days following the subject accident. Plaintiff testified that he spent no time in bed as a result of the subject accident except for a total of 2 to 3 three weeks following his knee surgeries. The fact that he did not return to work for almost 9 months is not sufficient by itself to demonstrate a serious injury under that statutory category. There is also no evidence plaintiff attended any physical therapy apart from short periods of rehabilitation following his knee surgeries. Plaintiff's only documented injuries of a non-permanent nature are muscle strain/sprain and whiplash, injuries which, as a matter of law, do not constitute serious injuries within the contemplation of the statute (see Maenza, 172 AD2d 500).
Plaintiff's submissions did not raise an issue of fact for trial. All of Dr. Fleischer's neurological reports and Dr. Goldenberg's initial report are unaffirmed and inadmissible. But even assuming their admissibility, the reports of these two treating doctors show only that plaintiff complained of pain to the affected areas soon after the accident and exhibited limited range of motion, a subjective parameter according to Dr. Montalbano. Dr. Fleischer's reports are extremely brief and do not contain enough detail to support his conclusion as to permanence and causation. Although Dr. Fleischer reported eliciting a positive straight leg raising result bilaterally, Dr. Goldenberg's report of straight leg raising, dated only 6 days after Dr. Fleischer's evaluation, recorded a negative test on the right and only an "equivocal" result on the left because of plaintiff's complaints of pain when raising his left leg. Not only would this tend to show a prompt recovery by that indicator, but contradicts the later conclusion reached by Dr. Schwartz who found a positive straight leg raising result on the right almost four years later and attributed the result to the subject accident. If Dr. McMahon conducted a straight leg raising test on the plaintiff upon his last examination, he did not report the result.
Plaintiff's affidavit did not raise an issue of fact for trial. His subjective claims of pain and limitation are not sufficient by themselves. It is not possible to ascertain from his statements whether he actually spent any time in physical therapy for his back or his knee in the four months following the subject accident apart from home exercises. No records at all demonstrating physical therapy were introduced and plaintiff's doctor's statements are carefully parsed and vague as to this subject. Dr. Goldenberg only affirmed she provided "pain management" to the plaintiff. Her affirmation also states that plaintiff was "totally incapacitated", but only from performing his duties at work, and both her certificates of disability were issued after the fact of plaintiff's absence from work. She did not state at any time that plaintiff was prevented from performing substantially all the acts constituting his customary daily activities or identify the medically-determined injury of a non-permanent nature that would have caused such a disability. Plaintiff's own assertions, that his injuries totally incapacitated him from work for 9 months because of pain, restrictions in range of motion and lack of mobility did not address any other necessary daily activities such as bathing, grooming, dressing, or eating independently. In addition, his admission that he has now returned fully to his former occupation despite an apparent lack of improvement in the level of pain, range of motion or mobility, is difficult to reconcile with the reasons claimed for his earlier absence from work. Plaintiff's testimony that he is now able to sit for 8 hours a day, when not mopping or sweeping, albeit with pain every other day, is also inconsistent with the claim in his subsequent affidavit that he is unable to sit or stand for more than 30 minutes at a time. A plaintiff cannot create his own issue of fact by statements in an affidavit, drafted to oppose a summary judgment motion, that contradict earlier sworn deposition testimony.
Dr. McMahon's conclusion that plaintiff's "condition" is permanent is based entirely on plaintiff's subjective complaints of pain: he has continued to be "symptomatic". Dr. McMahon did not explain why the first knee surgery was not adequate to correct his knee injuries or offer specific information about the state of plaintiff's knee following his second surgery. In fact, Dr. McMahon's cursory remarks as to plaintiff's recovery following that second surgery relate only that plaintiff was "happy" with the results and that he had "good" range of motion (see Fortune, 272 AD2d 277 [injuries fully corrected by surgery do not qualify as serious]). Furthermore, there is no indication Dr. McMahon saw plaintiff before April 2008, three years after the subject accident, when he performed surgery on plaintiff's left knee. As such, he was not in a position to opine as to the cause of plaintiff's injuries.
None of plaintiff's doctors addressed the degenerative or pre-existing conditions in plaintiff's back and knee found by Dr. Fischer and Dr. Montalbano, except for Dr. Schwartz. Dr. Scwhartz only did so by referring vaguely to a "history of exacerbations" related to the 2001 accident, before concluding nonetheless that all plaintiff's injuries were caused by the 2005 accident. Plaintiff made no claim of exacerbation of previous injury in his bill of particulars. None of plaintiff's doctors, sworn or unsworn, addressed the absence of any mention of plaintiff's knee in emergency room records. None addressed the considerable gap in treatment of plaintiff's lower back complaints, measured from at least since plaintiff returned to work in January 2006, if not earlier. Without addressing these issues of causation, plaintiff has not raised an issue of fact for trial.
The complaint is, therefore, dismissed in its entirety. Movant is directed to serve a copy of this order with notice of entry on the Clerk of Court who shall enter judgment dismissing the plaintiffs' complaint.
This constitutes the decision and order of the court.
Bronx, New York
_______________________________
BETTY OWEN STINSON, J. S.C..