Opinion
Index 035320/2018
05-01-2020
JEAN D. CEME, Plaintiff, v. NORMA J. LADINES AND CYNTHIA L. STEINHAUER, Defendants.
Unpublished Opinion
DECISION & ORDER
Sherri L. Eisenpress, A.J.S.C.
The following papers, were considered in connection with defendants Norma J. Ladines and Cynthia L. Steinhauer's Notice of Motion for an Order, pursuant to CPLR §3212, granting summary judgment in favor of defendants and dismissing the complaint in its entirety on the ground the plaintiff cannot meet the serious injury threshold requirement as mandated by Insurance Law §§5104(a) and 5102(d):
Notice of Motion, Affirmation in Support by Jeffrey P. Yong, Esq., Exhibits A-F
Affirmation of Ana M. Goncalves, Esq., in Opposition, Exhibits A-E
Affirmation of Jeffrey P. Yong, Esq., in Reply
Upon the foregoing papers, the Court now rules as follows:
HISTORY
Plaintiff commenced this personal injury action on August 30, 2018 (Exhibit A, NYSCEF Doc. 16). Through counsel, defendant Norma Ladines answered on October 26, 2018 (Exhibit B, NYSCEF Doc. 17). An amended summons and complained were filed on October 29, 2018 (NYSCEF Docs 3-5). Through counsel, defendants Norma Ladines and Cynthia L. Steinhauer (Ladines and Steinhauer) answered the amended complaint on November 26, 2018 (Exhibit B).
Plaintiff alleges that on September 8, 2015, while operating a motor vehicle on State Street near its intersection with East Eckerson Road, in the Town of Ramapo, County of Rockland, his vehicle was struck by defendants' vehicle due to its negligent operation, causing him to sustain serious personal injuries. (Exhibits A and C, NYSCEF Docs 16 and 18).
Plaintiff alleges that as a result of the accident, he was caused to sustain bone marrow edema in the distal clavicle of the left shoulder; partial tear in combination with tendinosis/tendinopathy in the left shoulder; C3/4 diffuse disc herniation with compression with impingement, C4/5 herniation with compression; C5/6 herniation with compression; C6/7 herniation with compression, bilateral C6/7 radiculopathy; left carpal tunnel syndrome; cervical loss of range of motion, L2/3 bulge with impingement; L3/4 bulge with impingement; L4/5 herniation with compression; L5/S1 herniation with compression; bilateral L4/5 radiculopathy, bilateral L5/S1 radiculopathy; and lumbar loss of range of motion. (Exhibit C, NYSCEF Doc. 18).
INSTANT MOTION
Defendants Ladines and Steinhauer move for summary judgment and dismissal of the complaint arguing that plaintiff did not incur a "serious injury" as defined in NY Insurance Law §5102(d). In support, defendants contend that plaintiff testified: (1) he refused an ambulance at the scene of the accident; (2) he did not seek medical treatment until the next day when he went to a physical therapy location; (3) his only medical treatment was with a Chiropractor where he received massages and adjustments for two to three months, approximately two to three times per week, on his lumbar and thoracic area; (4) he no longer has thoracic pain; (5) he was not seen by his regular family doctor in connection with the alleged injuries sustained from the subject accident; (6) he only missed three days of work; and (7) his only limitation is not being able to lift heavy boxes anymore. (Exhibit D, NYSCEF Doc. 19). Defendants also point out that plaintiff was not bedridden or confined to his home, he was not prescribed any medications, medical devices, and incurred no out of pocket expenses or unpaid bills. (Exhibit D). Defendants further argue that plaintiff has not proven that his alleged injuries arose out of the subject accident and were not pre-existing from a prior accident.
In support of the motion, defendants provide the affirmed report from the defense medical examination by Dr. Galano, an Orthopedist who opined that plaintiff has no residual disability and has returned to his pre-accident condition. (Exhibit E, NYSCEF Doc. 20). Dr. Galano diagnosed plaintiff with a resolved cervical spine strain and left shoulder sprain, with full range of motion. During the exam, plaintiff denied an injury to the lumbar spine. (Exhibit E). Plaintiff's MRIs were evaluated by Dr. Feit, Radiologist (Exhibit F, NYSCEF Doc. 21). The left and right shoulder MRI evidenced no rotator cuff tear or fracture, only degenerative changes (Exhibit F). Plaintiff's cervical MRI after the accident in 2015 was compared to his 2012 MRI, and Dr. Feit determined there was disc bulging, with no appreciable change pre and post-accident, with pre-existing degenerative changes (Exhibit F).
In opposition, plaintiff argues that he has raised triable issues of fact necessitating the denial of defendants' summary judgment motion. Plaintiff reports that in 2012, he was involved in a motor vehicle accidence with injuries to his left knee, lumbar, thoracic and cervical spine and according to plaintiff these injuries were resolved prior to the instant accident. (Exhibit C, NYSCEF Doc. 27). At the time of initial examination for the instant case, on September 14, 2015, plaintiff had limited range of motion with pain in the cervical and lumbar region. Plaintiff stopped receiving treatment in January 2016 based on Dr. Cappello's opinion that plaintiff reached maximum medical benefit (Exhibit C). Plaintiff was re-examined by Dr. Cappello, Chiropractor, on January 23, 2020, with complaints of neck, back, left shoulder and left ankle pain, which revealed continued limited ranges of motions in the neck and back. (Exhibit D, NYSCEF Doc. 28). Plaintiff argues that he sustained a permanent consequential limitation of the use of a body organ or member and/or significant limitation of use of a body function or system as supported by the medical evidence.
In reply defendants argue that plaintiff has not presented any proof that the injuries complained of were caused by the subject accident, not the prior accident, and is therefore speculative. Defendants reiterated the findings of Dr. Galano and argued that case law supports the defense expert's opinion on whether there is an objective basis for limitation. Defendants further reiterated the findings of Dr. Feit and argued that plaintiff's injuries are entirely degenerative. Defendants contend that plaintiff's testimony regarding the extent of his injuries is sufficient to support the lack of a serious injury within the meaning of §5102(d). Defendants further contend that plaintiff's opposition fails to raise a triable issue of fact with plaintiff's self-serving affidavit and affidavit from Dr. Cappello, written solely for the purpose of litigation.
DISCUSSION
The proponent of a summary judgment motion must sufficiently establish his or her claim or defense to warrant a court directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the lack of material issues of fact. Giuffrida v. Citibank Corp., et al., 100 N.Y.2d 72 (2003), citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). Admissible evidence sufficient to support that prima facie showing may include "affidavits by persons having knowledge of the facts [and] reciting the material facts" GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 695, 697 (1985). The failure to do so requires a denial of the motion without regard to the sufficiency of the opposing papers. Lacagnino v. Gonzalez, 306 A.D.2d 250 (2d Dept 2003). In determining such motion, this Court must "view the evidence in the light most favorable to the nonmoving party" Stukas v. Streiter, 83 A.D.3d 18, 22 (2d Dept 2011). However, once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form demonstrating material questions of fact requiring trial. Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124 (2000), citing Alvarez, supra, and Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851 (1985). Mere conclusions or unsubstantiated allegations unsupported by competent evidence are insufficient to raise a triable issue. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 (1988); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).
In order to be entitled to summary judgment it is incumbent upon the defendants to demonstrate that plaintiff did not suffer from any condition defined in Insurance Law §5102(d) as a serious injury. Healea v. Andriani, 158 A.D.2d 587 (2d Dept 1990). A "serious injury" is defined by New York Insurance Law §5102(d) as,
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; 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 constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
It is well established that a permanent loss of use must be "total" to qualify as a "serious injury" Oberly v. Bangs Ambulance, 96 N.Y.2d 295 (2001). Consequential limitation means an important and qualitative limitation of use of a body part based on normal function, purpose and use of that that body part. Toure v. Avis Rent a Car Systems, Inc., 98 N.Y.2d 345 (2002). Significant limitation requires a plaintiff to demonstrate that the injury is one which has limited the use of the afflicted area in an objectively "significant" way. Toure v. Avis Rent a Car Systems, Inc., 98 N.Y.2d 345. A "minor, mild or slight limitation of use [is] classified as insignificant within the meaning of the [no-fault] statute" Gaddy v. Eyler, 79 N.Y.2d 955 (1992) internal citations omitted.
In order to be entitled to summary judgment it is incumbent upon the defendant to demonstrate that plaintiff did not suffer from any condition defined in Insurance Law §5102(d) as a serious injury. Healea v Andriani, 158 A.D.2d 587, 551 N.Y.S.2d 554 (2d Dept 1990). Defendants' examining physician found full range of motion in plaintiff's cervical spine, without an examination to plaintiff's lumbar spine, due to no complaints of pain. (Exhibit E) Additionally, defendants' experts found no residual disability and no evidence of change from plaintiff's pre-accident condition. (Exhibits E and F, N YSCEF Docs 20 and 21). Additionally, Defendant's expert Radiologist found no evidence of a rotator cuff tear or fracture in Plaintiff's left shoulder and determined the mild impingement on the supraspinatus tendon to be degenerative. As such, Defendants have met their burden on summary judgment with respect to the categories of significant limitation of use and permanent consequential limitation of use and the burden shifts to Plaintiff to demonstrate a triable issue of fact.
One way to substantiate a claim of serious injury is through an expert's designation of a numeric percentage of a plaintiff's loss of range of motion, i.e., quantitatively. McEachin v. City of New York, 137 A.D.3d 753, 756 (2d Dept 2016). 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. Id. By establishing that any one of several injuries sustained in an accident is a serious injury within the meaning of Insurance Law §5102(d), a plaintiff is entitled to seek recovery for all injuries incurred as a result of the accident. Bonner v. Hill, 302 A.D.2d 544 (2d Dept 2003); O'Neill v. O'Neill, 261 A.D.2d 459 (2d Dept 1999).
Here, plaintiff treated with Dr. Cappello, a Chiropractor, who made a prognosis of permanent limitation, on which a claim of 'serious injury' can be adjudicated. Dr. Cappello attests that plaintiff's injuries to the cervical spine, lumbar spine and left shoulder constitute permanent, partial impairment. Dr. Cappello's examination of plaintiff revealed limited range of motion in the cervical and lumbar spines which he states is causally related and Dr. Cappello opines that plaintiff remains partially-permanently disabled. (Exhibit D, NYSCEF Doc. 28)
Where conflicting medical evidence is offered on the issue as to whether the plaintiff's injuries are permanent or significant, and varying inferences may be drawn, the question is one for the jury. Martinez v. Pioneer Transportation Corp., 48 A.D.3d 306 (1st Dept 2008). Further, when discrepancies between the competing reports of the physicians create issues of credibility, those issues of fact should not be resolved on summary judgment and require a trial. Francis v. Basic Metal, Inc., 144 A.D.2d 634 (2d Dept 1981); Cassagnol v. Williamsburg Plaza Taxi, 234 A.D.2d 208 (1st Dept 1996). As such, the triable issues of fact require denial of defendants' summary judgment motion with respect to the categories of significant limitation of use and permanent consequential limitation of use. Lastly, Defendants' gap in treatment argument is without merit based upon Dr. Cappello's statement that he discharged plaintiff from treatment on January 14, 2016, as it was his medical opinion, based on a reasonable degree of medical certainty, that he had reached maximum medical benefit from chiropractic treatment and that further treatment would only be palliative in nature. See Bonilla v. Tortoriello, 62 A.D.3d 637, 639, 878 N.Y.S.2d 187 (2d Dept. 2009); Gaviria v. Alvarado, 65 A.D.3d 567, 884 N.Y.S.2d 123 (2d Dept. 2009).
Accordingly, it is hereby
ORDERED the Notice of Motion filed by Defendants Norma J. Ladines and Cynthia L. Steinhauer is DENIED; and it is further
ORDERED that all parties are to appear in the Trial Readiness Part on WEDNESDAY, JUNE 24, 2020, at 9:30 a.m. for a conference.
The foregoing constitutes the Decision and Order of this Court on Motion #1.