Opinion
708250/20
09-02-2020
Esteban BONILLA, Plaintiff, v. 504 WOODWARD, LLC, Defendant. 504 Woodward LLC, Third-Party Plaintiff, Da Silva Construction, Inc., Third-Party Defendant.
The following papers read on this motion by third-party defendant Da Silva Construction, Inc. (Da Silva) pursuant to CPLR 3212 for summary judgment dismissing the third-party claims for common-law indemnity and contribution asserted by defendant/third-party plaintiff 504 Woodward LLC (504 Woodward) against third-party defendant Da Silva; this cross motion by plaintiff pursuant to CPLR 3212 for summary judgment on his causes of action for violation of Labor Law §§ 240(1) and 241(6) asserted against defendant 504 Woodward in the complaint; and this cross motion by defendant/third-party plaintiff 504 Woodward for summary judgment dismissing the causes of action asserted against it in the complaint based upon violation of Labor Law § 200 and common-law negligence.
Papers/Numbered
Notice of Motion - Affidavits - Exhibits EF Doc. No.4-#20
Notices of Cross Motion - Affidavits - Exhibits EF Doc. #21-#32, #46-#63, #75-#76
Answering Affidavits - Exhibits EF Doc. #33- #45, #64-#74, #77-#87, #88-#98
Reply Affidavits EF Doc.#99-#120
Upon the foregoing papers it is ordered that the motion and cross motions are determined as follows:
Plaintiff commenced this action on August 26, 2015 seeking to recover damages for personal injuries he allegedly sustained on July 16, 2015, during the course of his first day on the job at a construction/demolition site, located at 504 Woodward Avenue, in Ridgewood, New York. Plaintiff alleges that he was assigned to remove debris from a building and bring it outside to put it in a truck, parked at the curb. He allegedly climbed a ladder leaning against the truck to put some debris, which he carried in a bucket, into the truck. According to plaintiff, as he descended the ladder with the empty bucket, he was caused to fall onto the sidewalk when the ladder moved sideways. Plaintiff named 504 Woodward, as the alleged owner of the property where the accident occurred, as defendant, asserting claims based upon violations of Labor Law §§ 200, 240(1) and 241(6), as well as common-law negligence, and defendant 504 Woodward served an answer. Subsequently, defendant 504 Woodward commenced a third-party action against third-party defendant Da Silva for contractual indemnification and beach of contract to procure insurance. Third-party plaintiff 504 Woodward thereafter amended the third-party complaint, adding causes of action against third-party defendant Da Silva for common-law indemnification and contribution. Third-party defendant Da Silva served an answer to the amended third-party complaint, asserting various affirmative defenses, including a fifth affirmative defense that the third-party action against it is barred by Workers' Compensation Law §§ 11 and 29(6) and the " ‘grave injury’ rule."
Third-party defendant Da Silva Construction, Inc. (Da Silva) moves pursuant to CPLR 3212 for summary judgment dismissing the third-party claims for common-law indemnity and contribution asserted against it by third-party plaintiff 504 Woodward. Plaintiff opposes the motion, and cross moves pursuant to CPLR 3212 for summary judgment on the issue of liability on his causes of action to recover damages for violations of Labor Law §§ 240(1) and 241(6) asserted against defendant 504 Woodward in the complaint. Third-party defendant Da Silva and defendant/third-party plaintiff 504 Woodward oppose the cross motion by plaintiff. Defendant/third-party plaintiff 504 Woodward cross moves pursuant to CPLR 3212 for summary judgment dismissing the causes of action asserted against it in the complaint based upon common-law negligence and Labor Law § 200. Defendant/third-party plaintiff 504 Woodward has not appeared in relation to the cross motion by third-party defendant Da Silva. Plaintiff opposes the cross motion by defendant/third-party plaintiff 504 Woodward.
A motion for summary judgment may be made by any party to an action after the joinder of issue ( CPLR 3212[a] ). The court may set a date after which no such motion may be made, provided that the date is no earlier than 30 days after the filing of the note of issue (id. ). In this case, the preliminary conference order dated February 16, 2016, the court directed that any motion for summary judgment be made no later than 120 days after the filing of the note of issue, "but under no circumstances beyond 120 days of the filing of the [n]ote of [i]ssue absent further order of the court." By so-order stipulation dated February 27, 2019, plaintiff was directed to file a note of issue and certificate of readiness on or before July 31, 2019. Plaintiff timely filed the note of issue on July 26, 2019.
Third-party defendant Da Silva moved for summary judgment on November 22, 2019, and therefore it is timely. The cross motions by plaintiff and defendant/third-party plaintiff 504 Woodward, however, are untimely. Neither plaintiff nor defendant 504 Woodward have sought leave to file a late motion for summary judgment, or proffered an excuse for their late filings (see CPLR 3212[a] ; Brill v. City of New York , 2 NY3d 648, 652 [2004] ).
Plaintiff and defendant/third-party defendant 504 Woodward did not cross move for summary judgment until June 24, 2020 and July 1, 2020, respectively. Even taking into account that the filing of papers was suspended by Administrative Order of the Chief Administrative Judge of the New York State Courts (AO/78/20), due to the emergency circumstances caused by the COVID-19 virus outbreak, such order did not take effect until March 22, 2020. By that date, the court-ordered deadline for making a summary judgment motion had passed almost four months earlier. As a consequence, the temporary moratorium on court filings pursuant to AO/78/20, cannot explain the reason for the untimeliness of the making of the respective cross motions for summary judgment by plaintiff and defendant/third-party plaintiff 504 Woodward, let alone serve as good cause for the delay (see CPLR 3212[a] ).
An untimely cross motion may be entertained where a timely motion for summary judgment has been made on nearly identical grounds (see CPLR 3212[a] ; Vitale v. Astoria Energy II, LLC , 138 AD3d 981 [2d Dept 2016] ; Wernicki v. Knipper , 119 AD3d 775 [2d Dept 2014] ; Whitehead v. City of New York , 79 AD3d 858, 860 [2d Dept 2010] ). The untimely cross motions by plaintiff and by defendant/third-party plaintiff 504 Woodward are improper vehicles to seek affirmative relief against 504 Woodward and plaintiff respectively, since third-party defendant Da Silva is the moving party (see CPLR 2215 ; Terio v. Spodek , 25 AD3d 781, 785 [2d Dept 2006] ; Mango v. Long Is. Jewish—Hillside Med. Ctr. , 123 AD2d 843, 844 [2d Dept 1986] ). Although a technical defect of this nature may be disregarded where there is no prejudice and the opposing parties have had ample opportunity to be heard on the merits of the relief sought (see CPLR 2001 ; Daramboukas v. Samlidis , 84 AD3d 719, 721 [2d Dept 2011] ), the untimely cross motions by plaintiff and defendant/third-party plaintiff 504 Woodward are not on the nearly identical grounds as is the timely motion by third-party defendant Da Silva. The motion by third-party defendant Da Silva for summary judgment dismissing the third-party claims for common-law indemnity and contribution asserted by defendant/third-party plaintiff 504 Woodward against it, is predicated upon Da Silva's assertion that plaintiff did not suffer a "grave injury" within the meaning of the Workers' Compensation Law § 11. Plaintiff's cross motion, on the other hand, seeks summary judgment against defendant 504 Woodward on his causes of action for violation of Labor Law §§ 240(1) and 241(6), based upon his claim that 504 Woodward is absolutely liable for its failure to provide him with a proper safety device to prevent his fall, insofar as the ladder was inadequately secured. At the same time, the cross motion by defendant/third-party plaintiff 504 Woodward rests on the factual assertion that it did not exercise supervisory control over the work, and therefore is entitled to summary judgment dismissing the causes of action asserted against it based upon violation of the Labor Law § 200 and common-law negligence (see Sheng Hai Tong v. K & K 7619, Inc. , 144 AD3d 887, 890 [2d Dept 2016] ; see also Paredes v. 1668 Realty Assocs., LLC , 110 AD3d 700, 702 [2d Dept 2013] ).
Accordingly, the cross motion by plaintiff for summary judgment against defendant 504 Woodward on the issues of liability for violations of Labor Law §§ 240(1) and 241(6), and the cross motion by defendant/third-party plaintiff 504 Woodward for summary judgment dismissing the causes of action asserted against it in the complaint based upon violation of Labor Law § 200 and common-law negligence are denied.
With respect to the motion by third-party defendant Da Silva for summary judgment dismissing third-party plaintiff 504 Woodward's claims for common-law indemnification and contribution, it is well established that the proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact," ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ; Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851 [1985] ; Zuckerman v. City of New York , 49 NY2d 557 [1980] ). If the proponent succeeds, the burden shifts to the party opposing the motion, which then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of its position (see Zuckerman , 49 NY2d 557 ).
Third-party defendant Da Silva does not seek dismissal of the contractual indemnity or breach of contract claims asserted against it in the third-party complaint, nor dismissal of plaintiff's lost earnings claim (see Reply Affirmation of Steven R. Goldstein, Esq., dated July 31, 2020, EF Doc. #115).
Third-party defendant Da Silva contends that it is entitled to summary judgment dismissal of the causes of action for common-law indemnification and contribution asserted against it in the third-party complaint based upon the affirmative defense of the exclusivity of Workers' Compensation Law § 11.
Claims for common law indemnification and contribution are statutorily barred against an employer in the absence of a grave injury (see Fleming v. Graham , 10 NY3d 296 [2008] ; Grech v. HRC Corp. , 150 AD3d 829 [2d Dept 2017] ; see also Ironshore Indem., Inc. v. W & W Glass, LLC , 151 AD3d 511 [1st Dept 2017] ; Keita v. City of New York , 129 AD3d 409 [1st Dept 2015] ).
Workers' Compensation Law § 11 describes a "grave injury" as:
"only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability"
( Workers' Compensation Law § 11 ). A brain injury results in "permanent total disability" constituting a grave injury under Workers' Compensation Law § 11 when the evidence establishes that the injured worker is no longer employable "[i]n any capacity" ( Rubeis v. Aqua Club, Inc. , 3 NY3d 408, 413 [2004] ).
The "proponent of a motion for summary judgment seeking to dismiss a third-party action for want of a grave injury is ... obligated to prove, prima facie that the plaintiff did not sustain a grave injury" ( Fitzpatrick v. Chase Manhattan Bank , 285 AD2d 487, 488 [2d Dept 2001] ). Parties seeking to disprove the existence of a grave injury to the brain must submit evidence that the injured work is "no longer employable in any capacity" ( Rubies , 3 NY3d 408, 413 ; see Grech v. HRC Corp. , 150 AD3d 829 ; Purcell v. Visiting Nurses Found. Inc. , 127 AD3d 572 [1st Dept 2015] ; Bush v. Mechanicville Warehouse Corp. , 79 AD3d 1327 [3d Dept 2010] ).
Third-party defendant Da Silva asserts the injuries allegedly sustained by plaintiff do not qualify as a grave injury within the meaning of section 11 of the Workers' Compensation Law, and hence it, as plaintiff's employer, cannot be held liable for common-law indemnification or contribution under that section. In support of its motion, third-party defendant Da Silva offers, among other things, the affidavit of its counsel, copies of the pleadings, bills of particulars and transcripts of plaintiff's deposition testimony, affidavits/reports of Joseph Pessalano, a vocational rehabilitation specialist and David Masur, Ph.D., a clinical neuropsychologist, affirmed independent medical examination reports of Andrew N. Bazos, M.D. and Edward Torriello, M.D. , orthopedic surgeons, and Howard Reiser, M.D., a neurologist, and affirmed report of David M. Erlanger, Ph.D. , a clinical neuropsychologist.
Dr. Torriello and Dr. David M. Erlanger, Ph.D., are experts who were retained by third-party plaintiff 504 Woodward. Again, third-party plaintiff 504 Woodward does not appear in opposition to the motion by third-party defendant Da Silva.
see supra n 3.
It is undisputed that plaintiff was an employee of third-party defendant Da Silva at the time of the accident, and was injured in the course of his employment (see deposition transcript, EF Doc. #19). To the extent, however, plaintiff alleges in his complaint, initial bill of particulars dated January 19, 2016, supplemental bill of particulars dated June 28, 2016, and "fourth" supplemental bill of particulars dated October 13, 2016, that he sustained injuries to his ribs, cervical, lumbar and thoracic spine, and shoulders (see bill of particulars, fourth supplemental bill of particulars), none of these alleged injuries rise to the level of "grave injuries" within the meaning of Workers Compensation Law § 11. To the extent plaintiff also alleges he sustained injuries to his limbs, and blood vessels/supply, ligaments, tendons, surrounding tissue and soft tissue, plaintiff makes no claim that these injuries caused him to suffer a permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, or total and permanent blindness or total and permanent deafness. Thus, the claimed injuries to his limbs and blood vessels/supply, ligaments, tendons, surrounding tissue and soft tissue, likewise cannot be classified as "grave injuries" within the meaning of section 11 of the Workers Compensation Law.
Annexed to plaintiff's supplemental bill of particulars are various items, including reports of Mehrdad Golzad, M.D., his treating neurologist, which are unsworn and not affirmed, and an unsworn report of Avraham Schweiger, Ph.D.
No copy of a "third" supplemental bill of particulars has been presented to the court.
Plaintiff also alleges injuries to his nervous system, and more specifically, brain injuries. Plaintiff, however, makes no claim that such alleged brain injuries have resulted in paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness. Rather, plaintiff alleges in his complaint that he has suffered "severe and extreme mental shock, anguish and psychic injuries" (complaint ¶35), and in his initial bill of particulars dated January 19, 2016, he alleged he sustained "[h]igh posterior right parietal soft tissue swelling, and "[h]eadaches" as brain injuries. In the supplemental bill of particulars dated June 28, 2016, plaintiff supplemented his allegations of brain injuries to include:
"traumatic brain injury in the nature of a cerebral concussion consisting of diffuse axonal injury and associated axonal shearing injuries. These injuries manifest themselves in headaches, impairments in short term memory and concentration, impairments in ability to focus attention for sustained periods of time, difficulty with word finding and memory as associated with speech, difficult in organizational abilities, headaches, dizziness, nausea and vestibular impairments both while ambulating and in motion, cognitive and physical fatigue, sensitivity to bright light (photophobia) and noise (phonophobia), impairments in appetite and sleep patterns.
post-concussion syndrome
neuropsychological deficits."
In the Fourth Supplemental Bill of Particulars (see EF Doc. #12), plaintiff further alleges that he has sustained a brain injury causing him to have "[d]iffculty with tasks requiring sustained attention, concentration and memory." Plaintiff additionally alleges that his brain injuries and "their natural sequelae" are permanent, "except those of a temporary or superficial nature" (Plaintiff's Supplemental Bill of Particulars, EF Doc. # 12).
Third-party defendant Da Silva contends that plaintiff's alleged brain injuries have not caused plaintiff to be "no longer employable in any capacity" ( Rubeis , 3 NY3d 408, 413 ) and thus do not constitute grave injuries within the meaning of Workers Compensation Law § 11.
Dr. Torriello's affirmed medical report describes the results of a physical examination performed on December 29, 2016, prior to plaintiff's neck surgery, relative to his spine, chest, shoulders, elbows, wrists and hands. Dr. Torriello opines that plaintiff "reveals evidence of a resolved cervical strain, resolved low back strain, resolved thoracic strain and resolved right 8th rib fracture" and "no objective evidence of continued disability... [or] shoulder injury. Dr. Torriello also opines plaintiff "is able to return to work and normal daily living activities without restriction," and does not require any further orthopedic care." However, because the report does not address any alleged brain/head injury sustained by plaintiff, such opinion regarding plaintiff's capability to return to work is not entitled to any weight relative to whether such claimed injury is a grave one.
To the extent third-party defendant Da Silva relies upon the affirmed medical report dated September 18, 2019 of Dr. Bazos, the majority of the report relates to soft tissue injuries to plaintiff's spine and shoulder, rib fractures, and degenerative changes of the spine, and surgery performed on plaintiff's cervical spine. The report also addresses the alleged brain injury, insofar as Dr. Bazos opines that during the examination, plaintiff "was a perfect historian ... alert and oriented," answered questions "thoroughly and quickly," and remembered "all the details of the accident" which "correlate with the medical records." Dr. Bazos also opines that plaintiff's mental status during the examination was "excellent" and "there is absolutely no indication of any central nervous system problem" or "objective evidence of any ongoing pathology." Dr. Bazos further opines plaintiff "requires no additional medical treatment in this case and is left with no accident related disability," and "is capable of performing all levels of work."
In his affirmed medical report dated July 31, 2019, Dr. Reiser indicates that plaintiff presented to his office on that date for an independent neurological examination and evaluation with a translator present. According to Dr. Reiser, in preparing the report, he reviewed plaintiff's medical records, including neurological records from Dr. Golzad, and hospital records, EEG, MRI and other imaging reports, reports of independent evaluations, and plaintiff's deposition transcript. Dr. Reiser states plaintiff had a history of head injury with loss of consciousness on July 16, 2015, and cervical myelopathy, and received treatment primarily for cervical and lumbosacral spine involvement, ultimately resulting in surgery by Dr. Merola. Dr. Reiser also states that plaintiff reported he continues to experience pain in his posterior neck, back and right lower extremity, as well as dizziness, but made no report of any cognitive symptom. Dr. Reiser opines the neurological examination did not reveal evidence of radiculopathy or myelopathy "at any level." According to Dr. Reiser, his evaluation of plaintiff through the translator did not suggest a cognitive issue, but rather such issue is based primarily on the records of Dr. (Mehrdad) Golzad. Dr. Reiser noted, however, that improvement over time was documented in the neuropsychological reports, and plaintiff apparently had traveled to his office independently, taking a taxi cab on his own. Dr. Reiser opined that an independent neuropsychological evaluation of plaintiff would be appropriate, but he (Reiser) saw "nothing that would suggest an ongoing cognitive disorder that would limit plaintiff's ability to work and have a productive life."
Contrary to plaintiff's assertion, the report of Dr. Reiser is in admissible form. To the extent plaintiff objects to its consideration by the court in the absence of an affidavit from Carolina Tovar, who acted as a Spanish-English interpreter during plaintiff's evaluation by Reiser, third-party defendant Da Silva has supplied an affidavit of Tovar (see EF Doc. #119). In her affidavit, Ms. Tovar sets forth her qualifications as a Spanish-English interpreter, and states that she accurately, faithfully and completely interpreted Dr. Reiser's questions from English into Spanish and plaintiff's answers from Spanish into English during the independent medical examination of plaintiff by Dr. Reiser. She also states she reviewed page 5 of the Reiser medical report, and indicates that those portions of the report whereby Dr. Reiser describes plaintiff's translated responses are true and accurate.
Mr. Pessalano states in his affidavit, which incorporates his report dated August 29, 2019, that his opinions are based upon his review of the complaint, bills of particulars, plaintiff's medical and Workers' Compensation records, medical and psychological reports, and plaintiff's deposition testimony, and his vocational assessment interview and evaluation of plaintiff on August 6, 2019. Mr. Pessalano indicates plaintiff reported he suffers continuously from right hip discomfort, "radiating down throughout his right lower extremity," back discomfort and decreased cervical range of motion, but did not offer complaints relative to concentration, attention or memory deficits. Mr. Pessalano also indicates plaintiff reported he is able to walk or stand comfortably stand for 30 minutes continuously, and can sit comfortably for 30 to 45 minutes continuously and "lift up to 15 lbs." Mr. Pessalano set forth plaintiff's educational and vocational history and opines that within a reasonable degree of professional certainty, and taking into account plaintiff's injuries as a result of the accident, plaintiff "can perform the essential functions of occupational titles classified as sedentary or light, according to the Department of Labor Exertional Guidelines."
Plaintiff objects to Mr. Pessalano's reliance on the medical reports, including the reports of the experts of third-party plaintiff 504 Woodward, in rendering his opinion. It is well established that opinion evidence is permitted so long as it is predicated upon: (1) facts in the record or personally known to the witness or personal knowledge of the facts upon which the opinion rests, or (2) out-of-court material of the kind accepted in the profession as a reliable basis for forming a professional opinion (see Hambsch v. New York City Transit Authority , 63 NY2d723 [1984; Wagman v. Bradshaw , 292 AD2d 84 [2d Dept 2002] ). Mr. Pessalano obtained personal knowledge of the facts by conducting an in-person interview and evaluation of plaintiff, and reviewed the transcript of the deposition testimony of plaintiff. To the extent Mr. Pessalano also reviewed medical reports, plaintiff has failed to cite to any statute or case law precedent which prohibits an expert from reviewing other experts' reports when reaching his or her conclusions. It is notable that plaintiff's own vocational expert, Dr. Harold Bialsky, states in his affidavit/report that in relation to the rendering of his opinion, he reviewed medical reports and the report of Joseph Pessalano.
According to Mr. Pessalano, in reaching such conclusion, he reviewed all the job titles, eliminating those he determined were inappropriate for plaintiff due to plaintiff's lack of talent, skill or "interest pattern" fitting with plaintiff's background, and included a list of representative job titles he deemed appropriate for plaintiff, i.e.:
"ASSEMBLER & FABRICATOR
BUILDING CLEANING WORKER
COUNTER CLER
KETCHER & ENGRAVER
FURNITURE FINISHER
HOUSEKEEPING WORKER
JANITOR & CLEANER
LOCKER ROOM ATTENDANT
OPTICAL GOODS WORKER
PRODUCTION INSPECTOR & TESTER."
Dr. Masur states in his affidavit dated October 28, 2019, he interviewed and performed testing on plaintiff on August 9, 2019 and reviewed those records referenced in his report (incorporated into his affidavit), and that his opinions, conclusions and findings are within a reasonable degree of professional certainty. Dr. Masur states that plaintiff's overall performance on tests of nonverbal functioning was within the deficient range (first percentile), but that plaintiff produced a neurocognitive performance which demonstrated "generally intact spatial skills, intact visual memory and attention capacity within normal limits." Dr. Masur opines that at most, plaintiff sustained a mild head injury which symptoms of such an injury can include temporary difficulties with memory and concentration but typically resolve within 6 months after such an injury. Dr. Masur further opines that plaintiff's persistent cognitive impairment in relation to memory and concentration, following a mild head injury four years earlier, "is not within the realm of neuropsychological probability." Dr. Masur also opines that to a reasonable degree of neuropsychological probability, there is no evidence of neurologically-based cognitive impairment of plaintiff which can be causally related to the accident of July 16, 2015. Dr. Masur further opines that from "a cognitive point of view, [plaintiff] is capable of gainful employment, and [plaintiff's] prognosis for continued performance at his optimal level of cognitive functioning is excellent."
Contrary to plaintiff's assertion, Dr. Masur explains the basis for his opinion that plaintiff is employable notwithstanding the finding of deficient nonverbal functioning. Dr. Masur indicates that plaintiff's borderline deficient performances on the tests are the result of his slowness in performing the specific tasks, but that such slow performance "does not refer to plaintiff's overall intellectual capacity." To the extent plaintiff claims that Dr. Masur's opinion regarding the possibility of persistence of cognitive impairment of memory and concentration for four years, following a mild head injury is without a basis, third-party defendant Da Silva offers an additional affidavit of Dr. Masur dated July 9, 2020, wherein Dr. Masur cites two textbooks to support this opinion (see paragraph 17, EF Doc. #117).
see also affidavit of Dr. Masur dated July 9, 2020 (EF Doc. #117).
With respect to the report of Dr. Erlanger, plaintiff objects to its consideration on the ground it is not in admissible form (see CPLR 2106 ; Pascucci v. Wilke , 60 AD3d 486 [1st Dept 2009] ; Quality Psychological Services, P.C. v. New York Cent. Mut. Fire Ins. Co. , 38 Misc 3d 134[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] ). Third-party defendant Da Silva, however, has remedied this procedural error by submitting such report in its reply papers in affidavit form (see EF Doc. #118). Because plaintiff has not been prejudiced by the technical defect in opposing the motion, the sworn version of the report of Dr. Erlanger shall be considered by the court (see Berkman Bottger & Rodd, LLP v. Moriarty , 58 AD3d 539 [1st Dept 2009] ).
Dr. Erlanger states he interviewed and performed testing on plaintiff on January 9, 2017, and prepared his report after reviewing the records and reports listed in his report. Dr. Erlanger indicates that according to hospital records, plaintiff struck his head and experienced loss of consciousness and dizziness as a result of the accident, but that a CT (scan) and later MRI identified no evidence of acute hemorrhage. Dr. Erlanger states that on various specific tests regarding general intellectual functioning, executive functioning, attention and processing, semantic fluency, memory, visuopatial/constructional skills, plaintiff's scores were ranked in the impaired range, and opines that with regards to the test for mood assessment, plaintiff's score was indicative of mild to moderate symptoms of depression and psychological distress. Dr. Erlanger further opines that with respect to the test regarding somatic perceptions, plaintiff's score was indicative of "exaggerated, varied somatic symptoms of somatic distress." Dr. Erlanger additionally opines that plaintiff obtained numerous scores during the neuropsychological evaluation beyond reference ranges associated with his history of illness and injury. According to Dr. Erlanger, plaintiff performed (1) poorly on numerous procedures that would not be expected to be affected by plaintiff's history of illness and injury, (2) relatively well on ones that would be expected to reveal sensitivity to such a history, and (3) very poorly in comparison to plaintiff' "prior assessment." He opines that plaintiff reported somatic and pain symptoms in excess of reports by individuals diagnosed with chronic pain syndrome, and reported normal activities of daily living and an ability to travel independently. Dr. Erlanger opines that within a reasonable degree of professional certainty, plaintiff sustained a mild concussion as a result of the accident, and that mild concussions may result in mild cognitive symptoms which typically resolve within a few hours or days. Dr. Erlanger additionally opines that plaintiff's reports of symptoms of more severe depression and somatic distress are "subject to skepticism."
It is unclear to which prior assessment Dr. Erlanger refers.
Third-party defendant Da Silva has established prima facie that plaintiff's alleged brain injuries do not constitute a grave injury within the meaning of Workers' Compensation Law § 11 (see Grech v. HRC Corp. , 150 AD3d 829 ; Purcell v. Visiting Nurses Found. Inc. , 127 AD3d 572, 574 ; Fried v. Always Green, LLC , 77 AD3d 788, 790 [2d Dept 2010] ). In particular, third-party defendant Da Silva has made a prima facie showing that plaintiff is employable in a sedentary or light capacity through the report of Mr. Pessalano, as supported by the reports of its experts, Dr. Bazos, Dr. Reiser and Dr. Masur, the report of third-party plaintiff's expert, Dr. Erlanger, and plaintiff's own deposition testimony.
In opposition, plaintiff submits, among other things, the affirmation of his counsel, an affidavit of his expert, Harold Bialsky, D.C., M.A., C.R.C., C.L.C.P., a doctor of chiropractic, with a masters degree in rehabilitation counseling, and copies of his deposition transcript, and an affirmed report of Mehrdad Golzad, M.D., plaintiff's treating neurologist.
Dr. Bialsky states that he conducted an in-person interview with plaintiff on October 14, 2019, with the assistance of an interpreter who was fluent in Spanish and English, and reviewed the bills of particulars, and various operative reports, medical and hospital records, notes and reports set forth in his affidavit, including that of Joseph Pessalano. Dr. Bialsky notes that plaintiff reported he left school in his native country of El Salvador in the 10th grade, and did factory or construction work there, before coming to the United States where he worked sorting recyclables, and later worked in construction. Dr. Bialsky also notes plaintiff underwent a multi-level cervical spine fushion surgery on July 12, 2017, and plaintiff reported he suffers from headaches, memory impairment, neck pain and low back pain with concomitant, radiating, right lower extremity pain. Dr. Bialsky states that plaintiff reported the headaches are variable in intensity, strong at times, and sometimes present with intermittent bouts of vision disturbance. In addition, Dr. Bialsky states that plaintiff reported he has difficulty with his memory, e.g. in recalling what he has read, or remembering the items for which he was shopping. Dr. Bialsky further states that plaintiff reported his neck pain is constant, but exacerbated when he makes arcing motions or due to changes in weather. Dr. Bialsky additionally states plaintiff reported that his low back pain is also constant and exacerbated by walking, prolonged sitting and standing, and the right lower extremity pain initiates bouts of diminished balance. According to Dr. Bialsky, plaintiff also reported that he has difficulty bending and attaining an upright position from his bed, and wears a back brace when out in the community for an extended period of time. Dr. Bialsky states that plaintiff reported the combination of neck and back pain awakens him two or three nights per week, leaving him awake for the rest of the evening. Dr. Bialsky opines that within a reasonable degree of vocational probability, plaintiff is unable "to perform any kind of employment whatsoever" given his lack of abilities, computer skills and experience relative to a "desk" job, and his inability to perform manual labor. Dr. Bialsky also opines that plaintiff is not a candidate for a desk job, the typical alternative solution for employment after a person suffers a permanent injury. Dr. Bialsky further opines that "[p]ersons in pain are distracted" and "unable to offer full function and performance at work." Dr. Bialsky concludes it is unreasonable to expect that, within a reasonable degree of vocational probability, plaintiff will be considered a "qualified individual" by any prospective employer, and hence, plaintiff is "incapable of any employment."
Dr. Bialsky, however, does not specifically address the conclusion reached by Mr. Pessalano, i.e. that plaintiff is capable of doing sedentary jobs, other than desk jobs, or light jobs, e.g. manual jobs which require less significant amounts of physical exertion than construction or demolition.
Dr. Golzad indicates that he examined plaintiff on June 2, 2020, and plaintiff reported occasional mild headaches, dizziness, mood changes, and memory and cognitive dysfunction, for which he achieves "adequate relief with current medications as prescribed by pain management." Dr. Golzad opines that plaintiff was bradyphrenic, alert, oriented and followed commands, but had difficulties with visuospatial and executive function, sustained attention, concentration, memory and recall. In his report, Dr. Golzad sets forth certain lab data, and the interpretation by Dr. Hussman, of a brain MRI performed on May 20, 2020. According to Dr. Golzad, plaintiff scored a "22/30" on the Montreal Cognitive Assessment, a "7" on the GAD-7 inventory, and a "5" on the PHQ inventory, and plaintiff's headache disability index was "88% consistent with complete disability due to cephalgia." Dr. Golzad indicates the interpretation of the MRI showed, among other things "[s]tatistically significant derangement of major metabolite ratios within the centrum semiovale most compatible with traumatic brain injury" and [i]nternal development of significant atrophy within the right globus pallidus and left middle temporal gyrus may be due to early degenerative disorder or progressive post-traumatic brain injury" for which "[c]lincal correlation is needed." Dr. Golzad opines that plaintiff suffers from traumatic brain injury, with post concussion syndrome. Dr. Golzad notes plaintiff has not returned to work since the date of the accident, and opines that "because of [the] severity of [plaintiff's] headaches and a disability index of 88%, [plaintiff] remains totally impaired."
Although Dr. Golzad opines plaintiff remains "totally impaired," due to headaches and a headache disability index of 88%, he does not specifically state that plaintiff is no longer employable in any capacity, or is totally disabled as a result of his claimed brain injuries (see Rubeis , 3 NY3d, 408, 413 ; Sotarriba v. 346 West 17th Street, LLC , 179 AD3d 599 [2d Dept 2020] ; Grech v. HRC Corp. , 150 AD3d 829 ; cf. Deschaine v. Tricon Const., LLC , 2020 WL 646254 [Sup Ct, New York County, Edmead, J., February 10, 2020] ; Yong Jung v. Argus Realty 202 LLC , 2020 WL 433661 [Sup Ct, New York County, Edmead, J., January 27, 2020] ). To the extent Dr. Golzad asserts plaintiff suffers from neck and back pain, Dr. Golzad does not link the pain to a brain injury sustained by plaintiff, as opposed to pain caused as a result of neck, shoulder or spine injuries sustained by plaintiff. Furthermore, the evidence that plaintiff suffers from various brain conditions, including persistent headaches, depression, post-concussion syndrome, and traumatic brain injury is insufficient to create a triable issue of fact as to whether plaintiff is not employable in any capacity as a result of his claimed brain injury (see Purcell v. Visiting Nurses Foundation Inc. , 127 AD3d 572 [1st Dept 2015] ; Aramburu v. Midtown W. B, LLC , 126 AD3d 498 [1st Dept 2015] ; Anton v. West Manor Constr. Corp. , 100 AD3d 523, 524 [1st Dept 2012] ).
Under such circumstances, plaintiff has failed to raise a triable issue of fact as to whether he sustained a qualifying grave injury as defined in section 11 of the Workers' Compensation Law. Accordingly, the motion by third-party defendant Da Silva for summary judgment dismissing the third-party claims based upon common-law indemnification and contribution asserted against it in the third-party complaint is granted.