Opinion
Index No. 510972/2020 Cal. No. 9 Mot. Seq. No. 1
07-22-2024
Sylma Cornett, Cynthia Trim, and Cherry-Ann Celestine, Plaintiffs, v. New York City Transit Authority, Metropolitan Transportation Authority, Access-A-Ride, Shuhrat Mansurov, and Sherzod Abduramanov, Defendants.
UNPUBLISHED OPINION
PRESENT. HON. SAUL STEIN, J.S.C.
DECISION AND ORDER
SAUL STEIN, JUDGE
At an IAS Term, Part 17 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 320 Jay Street, Brooklyn, New York, on the 22nd day of July, 2024.
Pursuant to CPLR 2219 (a), the following papers were read on this motion:
NYSCEF Doc Nos. 22-37 (motion and exhibits), 74-93 (opposition), 94 (reply), 96 (transcript of oral argument)
The motion of defendants Shuhrat Mansurov and Sherzod Abduramanov (collectively, defendants) for an order granting them summary judgment dismissing the complaint of plaintiffs Sylma Cornett (Cornett), Cynthia Trim (Trim), and Cherry-Ann Celestine (Celestine and, collectively with Cornett and Trim, plaintiffs) on the ground that none of plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the rear-end motor-vehicle accident of August 23, 2019 (the underlying accident), is denied in its entirety.
(1)
Defendants have met their prima facie burden of demonstrating that none of plaintiffs sustained a "serious injury" within the meaning of Insurance Law § 5102 (d) (see e.g. Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 351 [2002], rearg denied 98 N.Y.2d 728 [2002]; Gaddy v Eyler, 79 N.Y.2d 955, 956-957 [1992]). Defendants have demonstrated, prima facie, that none of plaintiffs sustained a serious injury under the "permanent consequential limitation of use" or "significant limitation of use" categories of Insurance Law § 5102 (d), by way of the affirmed expert affirmations of: (1) orthopedic surgeon Pierce J. Ferriter, M.D. (Dr. Ferriter), as to all plaintiffs; (2) radiologist Scott A. Springer, D.O. (Dr. Springer), as to plaintiffs Cornett and Trim; and (3) radiologist Darren Fitzpatrick, M.D. (Dr. Fitzpatrick), as to plaintiff Celestine (see Washington v Parron-Amaro, 217 A.D.3d 804, 805 [2d Dept 2023]; Hospedales v New York City Tr. Auth., 213 A.D.3d 745, 746 [2d Dept 2023]).
See Dr. Ferriter's reports, each dated September 12, 2022, as to Cornett and Trim, and his report, dated October 3, 2022, as to Celestine (NYSCEF Doc Nos. 29, 31, and 33 respectively). See also Dr. Springer's reports, each dated April 12, 2022, as to Cornett and his reports, each dated May 9, 2022 as to Trim (NYSCEF Doc Nos. 30 and 32, respectively). See further Dr. Fitzpatrick's reports, each dated April 23, 2022, as to Celestine (NYSCEF Doc No. 34).
Dr. Ferriter, using a goniometer, tested the range of motion of: (1) Cornett's right shoulder and cervical spine; (2) Trim's right shoulder, as well as the cervical and lumbar regions of her spine; and (3) Celestine's left shoulder, hand, and wrist, as well as the cervical and lumbar regions of the latter's spine. Dr. Ferriter reported that the ranges of motion as to each plaintiff all were within normal ranges. He set forth his specific measurements and compared them to the norms. He also described other orthopedic tests that he performed, and reported that the results were all negative. Dr. Ferriter concluded that the claimed injuries of each plaintiff were now resolved and without permanency, and that each plaintiff was able to return to full duty work without restrictions (see Gersbeck v Cheema, 176 A.D.3d 684, 686 [2d Dept 2019]; Staff v Yshua, 59 A.D.3d 614 [2d Dept 2009]).
Plaintiffs have not challenged - and thus the Court has had no occasion to consider - the appropriateness of Dr. Ferriter's reliance for the normal "active range of motion" criteria on the Fifth Edition (issued in 2000), rather than on the Sixth Edition (issued in 2007 and continuously updated through 2023), of the American Medical Association's Guides to the Evaluation of Permanent Impairment.
Although Dr. Ferriter did not review plaintiffs' underlying medical records, his reports are sufficient, under the circumstances, to satisfy defendants' prima facie burden as to the alleged injuries because he performed objective tests showing the full range of motion (see Hayes v Vasilios, 96 A.D.3d 1010, 1011 [2d Dept 2012]). In that regard, the Court notes that defense counsel's broadly formulated proposition that their experts "are not required to review the [plaintiffs'] medical records" (transcript of oral argument, page 6, lines 19-20 at NYSCEF Doc No. 96), has been uniformly accepted by the First Judicial Department, whereas the Second Judicial Department cautiously applies it on a case-by-case basis (compare Perez v Ahadzi, 224 A.D.3d 556, 557 [1st Dept 2024] ["We reject plaintiffs contention that defendant's orthopedic expert was required to review plaintiffs medical records before forming his opinion."], and Levinson v Mollah, 105 A.D.3d 644, 644 [1st Dept 2013] ["Contrary to plaintiffs argument, defendants' expert was not required to specifically address the diagnostic findings in plaintiffs medical records."], with Hayes v Vasilios, 96 A.D.3d 1010, 1011 [2d Dept 2012] ["Contrary to the plaintiff s contention, and the Supreme Court's finding, the report from the defendants' examining neurologist, Dr. Maria DeJesus, was sufficient to satisfy the defendants' prima facie burden as to the alleged injuries to the regions, even though Dr. DeJesus did not review the plaintiffs medical records, since she performed objective tests showing full range-of-motion in the regions of the plaintiff's spine”] [emphasis added]).
(2)
In opposition, each plaintiff has raised a triable issue of fact as to whether some or all of her claimed injuries constituted a serious injury under the "permanent consequential limitation of use" category of Insurance Law § 5102 (d). In particular, plaintiffs submitted the affirmed reports of their examining physical therapy physician Joyce Goldenberg, M.D. (Dr. Goldenberg), opining that each plaintiff sustained, as the result of the underlying accident, a serious injury in the "permanent consequential limitation of use" category with respect to: (1) Cornett's cervical spine (but not her right shoulder); (2) Trim's right shoulder, as well as the cervical and lumbar regions of her spine; and (3) Celestine's left shoulder and left wrist (but not her left hand), as well as the cervical and lumbar regions of her spine. Dr. Goldenberg's medical examination of each plaintiff, all performed on June 29, 2023 (or approximately three years and ten months after the underlying accident), revealed that each plaintiff suffered, at the time of her examination, a reduced range of motion (as measured by a goniometer), with the ensuing impairment of each affected area.
See Dr. Goldenberg's report for Cornett, dated June 29, 2023 (NYSCEF Doc No. 76), page 7. Although Dr. Goldenberg indicated at page 5 of her report that, following the underlying accident, Cornett underwent a right shoulder arthroscopy, Dr. Goldenberg inexplicably concluded at page 7 of her report that Cornett developed a permanent consequential limitation of use of (among others) the "left [rather than the right] shoulder."
See Dr. Goldenberg's report for Tripp, dated June 29, 2023 (NYSCEF Doc No. 77), page 9. Dr. Goldenberg noted at page 1 of her report that, following the underlying accident, Tripp underwent a right shoulder arthroscopic surgery on November 27, 2019, by Dov Berkowitz, M.D. An operative report of Tripp's treating orthopedic surgeon, Dr. Berkowitz, revealed the "[Rearing of the rotator cuff of the right shoulder" (NYSCEF Doc No. 85). Although Dr. Berkowitz's Operative Report, dated November 27, 2019, was not separately affirmed, it was submitted by plaintiffs as part of the business records of Dr. Berkowitz's orthopedic practice, Advanced Orthopaedics, PLLC, pursuant to CPLR 4518 and 3122-a (see Benguigui v Racer, 198 A.D.3d 608, 610 [2d Dept 2021]; see also Abdalla v Mazl Taxi, Inc., 75 A.D.3d 517 [2d Dept 2010]).
See Dr. Goldenberg's report for Celestine, dated June 29, 2023 (NYSCEF Doc No. 78), page 9.
Plaintiffs have also submitted the affirmed MRI reports of radiologist Siddharth Prakash, M.D. (Dr. Prakash). Therein, Dr. Prakash described the injuries (as more fully set forth in the footnotes 7, 8 and 9) which the respective plaintiffs allegedly sustained from the underlying accident: (1) the cervical region of Cornett's spine; (2) the right shoulder, as well as the cervical and lumbar regions of Trim's spine; and (3) the left shoulder and left wrist, as well as the cervical and lumbar regions of Celestine's spine.
See Dr. Prakash's Affirmation, dated November 15, 2023 (NYSCEF Doc No. 80), summarizing his impressions of the MRI study, performed on September 25, 2019, of Cornett's cervical spine ("1. Grade I retrolisthesis and a disc bulge at C5-6 i[n] denting the thecal sac and foramina, abutting the existing right C6 nerve root. 2. Grade I retrolisthesis and a disc bulge at C3-4 indenting the thecal sac and foramina. 3. Disc bulge at C4-5 indenting the thecal sac.").
See Dr. Prakash's Affirmation, dated November 15, 2023 (NYSCEF Doc No. 84), summarizing his impressions of:
(1) the MRI study, performed on September 5, 2019, of Trim's right shoulder ("1. Partial-thickness undersurface infraspinatus tendon insertional tear with rotator cuff tendinosis. 2. Glenohumeral joint effusion. 3. Mild long head biceps tendosynovitis. 4. Acromioclavicular capsular hypertrophy abutting the supraspinatus myotendinous complex.");
(2) the MRI study, performed on October 14, 2019, of Trim's cervical spine ("1. Broad-based central posterior disc herniations at C3-4, C4-5, and C7-T1 indenting the thecal sac. 2. Disc bulges at C5-6 and C6-7 indenting the thecal sac and foramina, abutting the bilateral exiting C7 nerve roots at C6-7. . . ."); and
(3) the MR] study, performed on November 13, 2019, of Trim's lumbar spine ("1. Disc bulges at L2-3, L3-4, L4-5, and L5-S1 indenting the thecal sac, lateral recesses, and foramina, abutting the bilateral exiting L5 nerve roots at L5-S1 and the exiting right L4 nerve root at L4-5. 2. Right facet inflammation at L3-4.").
See Dr. Prakash's Affirmation, dated November 15, 2023 (NYSCEF Doc No. 89), summarizing his impressions of:
(1) the MRI study, performed on October 22, 2019, of Celestine's left shoulder ("1. Partial-thickness undersurface supraspinatus tendon insertional tear with rotator cuff tendinosis. 2. Small glenohumeral joint effusion. 3. Acromioclavicular capsular hypertrophy abutting the underlying subacromial space.");
(2) the MRI study, performed on October 23, 2019, of Celestine's left wrist ("1. Partial tear of the scapholunate ligament. 2. Mild intercarpal synovitis and cystic erosion in the lunate.");
(3) the MRI study, performed on October 1, 2019, of Celestine's cervical spine ("1. Right paracentral broad-based disc herniation at C5-6 indenting the thecal sac and foramina, abutting the bilateral exiting C6 nerve roots. 2. Broad-based central posterior disc herniations at C4-5 and C6-7 indenting the thecal sac. 3. Right foraminal herniation at C2-3 abutting the right foramina. 4. Disc bulge at C3-4 indenting the thecal sac."); and
(4) the MRI study, performed on November 5, 2019, of Celestine's lumbar spine ("1. Right foraminal herniation and disc bulge at L4-5 indenting the thecal sac, lateral recesses, and foramina, abutting the exiting right L4 nerve root. 2. Broad-based central posterior disc herniation superimposed on a disc bulge at L5-S1 indenting the thecal sac, lateral recesses, and foramina, abutting the bilateral exiting L5 nerve roots. 3. Disc bulges at L2-3 and L3-4 indenting the thecal sac, lateral recesses, and foramina. . . .").
Plaintiffs' foregoing submissions are sufficient to raise triable issues of fact as to whether each plaintiff sustained a serious injury in the permanent consequential limitation of use category (see Bernier v Torres, 79 A.D.3d 776, 776-777 [2d Dept 2010]; Levin v Khan, 73 A.D.3d 991, 991-992 [2d Dept 2010]; Pearson v Guapisaca, 61 A.D.3d 833, 834 [2d Dept 2009]; Casey v Mas Transp., Inc., 48 A.D.3d 610, 611 [2d Dept 2008]). The issues presented by the parties' conflicting medical evidence is "one of credibility, which is not for this Court to decide" (Perl v Meher, 18 N.Y.3d 208, 221 [2011]), Inasmuch as each plaintiff has raised a question of fact that at least some of her injuries meet the "No Fault" threshold, it is unnecessary to address whether her proof with respect to other injuries which she allegedly sustained would have been sufficient to withstand defendants' motion for summary judgment (see Linton v Nawaz, 14NY3d 821, 822 [2010]; Detoma v Dobson, 214 A.D.3d 949, 952 [2d Dept 2023]).
(3)
Contrary to defendants' contention, they have failed to establish, prima facie, that plaintiffs' claimed injuries were not caused by the underlying accident. Defendants' expert reports are internally inconsistent on the proximate cause element of their prima facie case. On the one hand, defense orthopedist Dr. Ferriter concluded that neither Cornett nor Trim "sustained] any significant or permanent injury as a result of the [underlying] ... accident." Dr. Ferriter similarly concluded that whatever "injuries [Celestine reportedly sustained] to her cervical spine, lower back, left shoulder and left wrist... as a result of the [underlying] accident... are now healed/resolved." On the other hand, defense radiologists Dr. Springer (as to Cornett and Trim) and Dr. Fitzpatrick (as to Celestine) opined (as to the applicable plaintiff) that such plaintiffs spine anomalies were due to such plaintiffs chronic disc degeneration, rather than due to the underlying accident (see Gugel v County of Suffolk, 120 A.D.3d 1189, 1190 [2d Dept 2014]).
Dr. Ferriter's report for Cornett, page 4; Dr. Ferriter's report for Trim, page 5.
Dr. Ferriter's report for Celestine, page 6.
Dr. Springer's respective reports for Cornett and Trim.
Dr. Fitzpatrick's reports for Celestine.
In addition, even assuming that defendants has raised a question as to whether there was a gap in treatment, since defendants have failed to establish that the alleged injuries to plaintiffs were not caused by the underlying accident, "the burden never shifted to the plaintiff[s] ... to explain any gap in treatment" (Brooks v Muessing, 227 A.D.3d 856 [2d Dept 2024]; Skeleton v Faessler, 219 A.D.3d 851, 853 [2d Dept 2023]).
In any event, Cornett's pretrial testimony (at page 57, lines 6-8 at NYSCEF Doc No. 35) that she stopped physical therapy "[b]ecause No-Fault would not pay for it," meets "the bare minimum required to raise an issue [of fact] regarding some reasonable explanation for the cessation of physical therapy" (Ramkumar v Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 907 [2013] [internal quotation marks omitted]).
In sum, defendants' motion for summary judgment on the issue of serious injury is denied in its entirety as to all plaintiffs.