Opinion
Index No. 152441/2020
11-30-2023
Melissa Biondo, Plaintiff, v. Jerzy Ornoch and "JOHN DOE", Defendants.
Plaintiff is represented by: Jennifer R. Snider Esq. Turpin & Snider, LLC. John Trop Esq
Unpublished Opinion
MOTION DECISION
Plaintiff is represented by: Jennifer R. Snider Esq. Turpin & Snider, LLC.
John Trop Esq
Catherine M. DiDomenico, J.
Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion
Sequence Number 001
Numbered
Notice of Motion for Summary Judgment by Defendant (001), .......................1
Opposition and Memo of Law by Plaintiff .......................................................2
Transcript of Oral Argument dated 8/1/2023 ....................................................3
Upon the foregoing cited papers, the Decision and Order is as follows:
Procedural History
Defendant, Jerzy Ornoch, moves by Notice of Motion (Seq. No. 001) for an order granting him summary judgment dismissing Plaintiff's case on the ground that Plaintiff, Melissa Biondo, did not sustain a "serious injury" as defined by Section 5102(d) of the Insurance Law. Plaintiff has filed written opposition to the motion in its entirety. Defendant has elected not to file a Reply. Oral argument was held on August 1, 2023. Defendant's motion was submitted for Decision upon receipt of the transcript of oral argument.
Factual Background
The present motion relates to a motor vehicle accident which occurred on July 13, 2018. Plaintiff's deposition was held on March 18, 2022, and the transcript was annexed as an exhibit to Defendants' motion. Plaintiff testified that at the time of the accident she stopped in a parking lane on the side of Quintard Street in Staten Island, New York. Plaintiff and three passengers were sitting in a 2005 Toyota Camry. Plaintiff pulled to the side of the road because she received a phone call. Plaintiff alleges that while she was parked, she observed a "Black Jeep" driving in the parking lane at a rate of 10 to 20 miles per hour. In response to the oncoming vehicle, Plaintiff began driving forward in the parking lane. After she stopped again, she was allegedly struck in the rear by the Jeep with a "medium" impact. After the impact, the Jeep's driver allegedly pulled up next to Plaintiff's vehicle to make an obscene gesture, and then drove away. Before the Jeep left the scene Plaintiff was able to write down its license plate number. As a result, the named Defendant in this action is identified as the owner of the Jeep and the driver is identified as "John Doe."
In her Verified Bill of Particulars dated April 20, 2021, Plaintiff alleges injuries to her lumbar spine including an annular tear at L2-L3, L3-L4 and a disc herniation at L5-S1. Immediately following the accident Plaintiff did not seek medical treatment at the scene, nor did she go to the hospital. Plaintiff first sought medical care at a facility named "Metro Health New York" approximately two months following the accident. At Metro Health she was treated by Dr. Igor Stiler, M.D., a board-certified Neurologist, who assessed that she had sustained "trauma to the lumbar spine." Dr. Stiler's records indicate Plaintiff was under his care from September 13, 2018, until October 30, 2018.
Plaintiff testified that Dr. Stiler referred her for an MRI and to undergo physical therapy. Plaintiff testified that she attended physical therapy one to three times a week for three or four months. At physical therapy Plaintiff's treatment consisted of nerve stimulation, stationary bicycle riding, and exercises. Plaintiff did not receive any injections or medication and no recommendation for surgery was made. Plaintiff could not recall if she was ever given home exercises to do. Plaintiff claims that she stopped attending physical therapy after "three or four months" and testified that she stopped because she had a sick mother to take care of. Plaintiff's deposition testimony makes only one reference to her mother's sickness and offers no explanation as to the care Plaintiff needed to provide. Other than her brief treatment at Metro Health, Plaintiff received no additional care for her alleged injuries. Despite a contrary statement in her Verified Bill of, Plaintiff testified that she was never confined to bed, confined to home, nor did she miss any work. Plaintiff testified that, as of March 2022, she had no pending medical appointments.
Applicable Law
The proponent of a summary judgment motion has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case. See Otty Cab Corp. v. Nazir, 72 N.Y.S.3d 517 (2d Dept. 2017). A movant's burden can be satisfied by the submission of sworn affirmations (from physicians), affidavits, or deposition testimony in proper evidentiary form. See Charlie Fox, Inc. v. Diallo, 48 N.Y.S.3d 264 (2d Dept. 2016). When seeking summary judgment pursuant to Insurance Law §5102(d) the moving defendant must conclusively establish that the plaintiff did not suffer any of the enumerated "serious injuries" set forth in that statute. See Cortez v. Bray, 192 A.D.3d 451 (1st Dept. 2021). Once a prima facie showing of entitlement to summary judgment has been established, the burden shifts to the non-moving party to raise a material issue of fact sufficient to warrant a trial. See Ubillus-Tambini v. Ischakov, 36 N.Y.S.3d 410 (2d Dept. 2016). A plaintiff opposing a "threshold" motion bears the burden of offering objective evidence of a serious injury. See Stevens v. Homiak Transp., Inc., 21 A.D.3d 300 (1st Dept. 2005). When relying upon the "significant limitation" category, a plaintiff must also offer objective evidence of a significant loss of use, normally measured by range of motion testing. See Toure v. Avis Rent a Car Sys., 98 N.Y.2d 343 (2002). When facing a claim that the conditions predate the accident at issue, are degenerative in nature, or were caused by a prior injury, it becomes the Plaintiff's burden to distinguish prior injuries from present ones. See Pommells v. Perez, 4 N.Y.3d 566 (2005). If it is claimed that the current accident made preexisting injuries or conditions worse, it becomes a plaintiff's burden to explain "in a specific and nonconclusory manner" how the accident aggravated or exacerbated their preexisting conditions. See Sanchez v. Steele, 149 A.D.3d 458 (1st Dept. 2017). It is also Plaintiff's burden to explain any gap in, or cessation of, treatment. See Pommells, Supra.; see also Ortiz v. Boamah, 169 A.D.3d 486 (1st Dept. 2019).
Decision
As a result of the present lawsuit, Plaintiff underwent an Independent Medical Examination "IME" conducted by Dr. Arnold Berman M.D., a board-certified Orthopedic Surgeon. Defendant offers Dr. Berman's IME Report in support of his motion. After reviewing the records related to Plaintiff's limited medical treatment and diagnostic testing, Dr. Berman conducted a physical examination on July 13, 2022. Upon examination, Dr. Berman found that Plaintiff had a normal range of motion in relation to the allegedly injured areas of her body. Dr. Berman's range of motion testing was performed using a handheld goniometer as recommended by the American Academy of Orthopedic Surgeons, and his medical definition of what range of motion is "normal" was found in the AMA's "Guidelines of the Evaluation of Permanent Impairment." Dr. Berman's impression was that Plaintiff had an "alleged" lumbar/thoracic spine sprain that was resolved with no residuals. Dr. Berman further opined that he found no objective evidence to substantiate Plaintiffs claim of ongoing pain. Regarding Plaintiff's MRI of 9/18/18 Dr. Berman found evidence of degenerative and weight related disc disease that would "take years to develop and could not have been caused by a single low speed motor vehicle accident." Dr. Berman concludes that he found "no causal relationship" between the alleged injury and the ongoing complaints, and no loss of bodily function. All of Dr. Berman's opinions were made to a reasonable degree of medical certainty.
Based upon the admissions in Plaintiff's deposition testimony, and the IME report of Dr. Berman, Defendant has met his initial burden of establishing his entitlement to summary judgment as a matter of law. Dr. Berman's report indicates that the condition of Plaintiff's spine is degenerative, and "weight related" and not related to the accident at issue. He further finds that those conditions are limited to lower back sprains that have since fully resolved. "Sprains and strains are not serious injuries within the meaning of Insurance Law §5102(d)." Rabolt v. Park, 50 A.D.3d 995 (2d Dept. 2008). Dr. Berman also conducted range of motion testing that revealed no limitation of use. Thus, Dr. Berman's report is sufficient to satisfy Defendant's initial burden on the motion that Plaintiff did not suffer a serious injury in relation to the permanent consequential limitation or significant limitation of use categories of Insurance Law §5102 relied upon by Plaintiff in her Bill of Particulars. See Staff v. Yshua, 59 A.D.3d 614 (2d Dept. 2009).
In relation to the 90 out of 180-day category, Defendant established his entitlement to summary judgment in that Plaintiff testified that she failed to miss any work, and was never confined to bed, or to her home. See Santana v. Tic-Tak Limo Corp., 106 A.D.3d 572 (1st Dept. 2013). Accordingly, it cannot be found that Plaintiff was unable to perform "substantially all" of the material acts which constitute her usual and customary activities for at least 90 out of 180 days immediacy following the accident. See Gavin v. Sati, 29 A.D.3d 734 (2d Dept. 2006). As Defendant has established his entitlement to summary judgment as a matter of law on all relevant threshold categories, the burden shifts to the non-moving party, in this case Plaintiff Biondo, to raise a material question of fact. See Paula v. City of New York, 249 A.D.2d 100 (1st Dept. 1998).
In opposition, Plaintiff argues that there is a question of fact as to whether she sustained a "serious injury" as defined by the Insurance Law. Plaintiff argues that "directly after the accident" Dr. Stiler performed range of motion testing that exhibited limitations in her lumbar spine. However, the accident occurred on July 13, 2018, and Plaintiff first saw Dr. Stiler on September 13, 2018, exactly two months later. No explanation is offered as to why Plaintiff waited two months before seeking medical treatment. During oral argument of the motion Plaintiff's counsel asserted that Plaintiff sought treatment from her primary care physician during that time, however that allegation was not made by Plaintiff at her deposition, in her supplemental affidavit, or in her opposition papers. Assertions raised for the first time during oral argument are not properly before the Court. See Matter of Stark v. Williams, 216 A.D.3d 859 (2d Dept. 2023); see also Deutsche Bank Natl. Trust Co. v. Lopresti, 203 A.D.3d 883 (2d Dept. 2022). Notably, Dr. Stiler's examination notes do not include an opinion regarding causation. While the notes do seem to indicate range of motion limitations, there is no explanation as to how testing was performed or how Dr. Stiler determined what was "normal."
In appears from Dr. Stiler's records that Plaintiff was examined a second time (in the same facility) on September 15, 2018, by a Chiropractor, Nick Chiappetta, D.C. At her Deposition Plaintiff testified that Dr. Chiappetta is her neighbor and owns Metro Health. In his narrative report Dr. Chiappetta indicates that he performed range of motion testing with a goniometer and that Plaintiff exhibited severe range of motion limitations, considerably more severe than Dr. Stiler's findings from two days earlier. However, Dr. Chiappetta also fails to provide any indication of how he determined what was "normal." Notably, Dr. Chiappetta and Dr. Stiler both utilize a different "normal range" than the definition offered by Dr. Berman, who does cite his source as the AMA guidelines. Unlike Dr. Stiler, Dr. Chiappetta offers an opinion on causation opining that the injuries were caused by the accident at issue.
After not seeking treatment for two months after the accident, a review of the records provided by Dr. Stiler and Dr. Chiappetta indicate that Plaintiff attended intensive physical therapy and chiropractic treatment 18 times between September 13, 2018 and October 30, 2018, often on consecutive days. Several of the progress reports from these visits recommend additional treatment, but most indicate that Plaintiff's "prognosis for rehabilitation is good." Despite this positive prognosis, Plaintiff's treatment records abruptly end on October 30, 2018. The note from Plaintiffs last office visit with Dr. Chiappetta indicated that she was instructed to "return three times per week until the next reexamination." Notably, the medical records provided indicate care for a considerably shorter period than the three to four months testified to by Plaintiff.
In addition to her medical records, Plaintiff relies upon a narrative report from Dr. Nicky Bhatia M.D., a Neurologist, and the MRI review of Dr. Jose Pizarro, M.D, a Radiologist. After reviewing Plaintiff's MRI films Dr. Pizarro finds objective evidence of the injuries claimed by Plaintiff, but he does not opine as to causation. On December 28, 2022, approximately four years after her last treatment for her alleged injuries, and after the filing of the present motion, Plaintiff was examined by Dr. Nicky Bhatia M.D. In his narrative report, Dr. Bhatia indicates that he reviewed Plaintiff's prior medical records and opines that Plaintiff completed "a full complement of physical therapy without significant benefit." However nowhere in his report does he attempt to explain the several gaps in Plaintiff's treatment, or the recommendations in Plaintiff's 2018 medical records that treatment should continue with a positive prognosis for recovery. During his examination of Plaintiff, Dr. Bhatia conducted range of motion testing and found limitations related to plaintiff's lumbar spine. Dr. Bhatia also opines upon causation finding that her impairments are causally related to the traumatic injury she sustained on July 13, 2018.
Observed flexion of 70 degrees with a normal of 90 and observed right lateral flexion of 20 degrees with a normal of 25.
To successfully defeat a "threshold" summary judgment motion a plaintiff is required to offer evidentiary proof sufficient to raise a triable question of fact. See Singh v. City of New York, 71 A.D.3d 1121 (2d Dept. 2010). Here, the report of Dr. Bhatia would typically be sufficient to raise a triable issue as he properly conducted range of motion testing, citied to proper medical authority, and opined upon causation. See e.g., Diamond v. Comins, 219 A.D.3d 973 (2d Dept. 2023). However, when a Plaintiff presents with significant gaps in medical treatment, it becomes incumbent upon that Plaintiff, and/or his or her doctors, to adequately explain those "gaps." See Pommells v. Perez, 4 N.Y.3d 566 (2005). After establishing the Pommells rule the Court of Appeals has clarified that this burden is not a very difficult one to satisfy as a bare assertion of fact explaining the gap in treatment, even without evidentiary proof, is likely sufficient. See Ramkumar v. Grand Style Transp. Enters. Inc., 22 N.Y.3d 905 (2013).
In the present case there are three significant gaps in treatment. The initial two-month gap, which occurred between the date of accident and first time Plaintiff sought treatment for her injuries, is unexplained. Plaintiff's counsel's assertion that Plaintiff sought medical treatment from her primary care physician during that initial two-month gap is unsupported by the record, improperly raised for the first time during oral argument, and belied by her deposition testimony. Plaintiff testified that she first sought treatment "two months later" and that she was referred to Dr. Stiler by her neighbor, Dr. Chiappetta, who "owns the practice."
The second gap in treatment starts when Plaintiff stopped seeing Dr. Stiler and his associates in or around October 30, 2018. While no evidentiary proof is offered, Plaintiff successfully explains this second gap by stating, in an Affidavit supplemental to her deposition, that she had to care for her mother who was terminally ill. Care for a family member has been found to be sufficient to meet the Pommels / Ramkumar standard. See Acosta v. Ramos, 144 A.D.3d 441 (1st Dept. 2016). However, in her Affirmation in Opposition Plaintiff's counsel indicates that Plaintiff's Mother sadly "died soon after." While an exact date is not provided, the end of Plaintiff's responsibility to care for her mother marks the beginning of the third gap in treatment which runs until Plaintiff saw Dr. Bhatia, as an expert in reference to this motion, in December 2022.
Plaintiff fails to adequately address this third gap in treatment, which essentiality amounts to a "cessation of treatment." See Merrick v. Lopez-Garcia, 100 A.D.3d 456 (1st Dept. 2012). She offers no explanation as to why she did not resume treatment for her alleged ongoing injuries after her caregiver responsibilities ended. Plaintiff admits that as a teacher she has health insurance, so access to care was not an issue. Moreover, the last reported prognosis that she received in 2018 recommended further treatment and indicated a "good prognosis for recovery." Thus, there was no basis for Plaintiff to believe that further treatment would be palliative in nature. Cf. Bonilla v. Tortoriello, 62 A.D.3d 637 (2d Dept. 2009). While Dr. Bhatia opines in his report that Plaintiff "reached essentially maximal medical improvement," that report was written in 2022, several years after Plaintiff had received a contradictory prognosis from her medical providers. The unexplained gap in treatment renders Dr. Bhatia's "after the fact" opinion as to additional care speculative. See Arjona v. Calcano, 7 A.D.3d 279 (1st Dept. 2004). It is incumbent upon Plaintiff to explain why she did not seek additional care for her alleged injuries, and she has failed to do so. "Plaintiff's failure to offer an explanation for her cessation of treatment more than three years ago undermines her claim of serious injury." Vazquez v. Reluzco, 28 A.D.3d 365 (1st Dept. 2006). Plaintiff's unexplained cessation of treatment also renders Dr. Bhatia's opinions as to causation and permanency speculative. See Islam v. Apjeet Singh Makkar, 95 A.D.3d 1277 (2d Dept. 2012); see also Perez-Vargas v. Aarron, 187 A.D.3d 485 (1st Dept. 2020).
As Plaintiff fails to adequately explain why she waited two months to seek initial treatment, and why she failed to resume treatment after her caretaker responsibilities ended, she has not met her burden to raise a triable issue of fact. Accordingly, Defendant's motion must be granted, and the case dismissed with prejudice. See Hwang v. llgar, 178 A.D.3d 784 (2d Dept. 2019); see also Atken v. Jackson, 164 A.D.3d 869 (2d Dept. 2018); Hall v. Hecht, 92 A.D.3d 721 (2d Dept. 2012); Maffei v. Santiago, 63 A.D.3d 1011 (2d Dept. 2009); Auquilla v. Singh, 162 A.D.3d 463 (1st Dept. 2018). This constitutes the Decision and Order of the Court in relation to Motion Sequence Number 001.