Opinion
Index No. 526995/2019
08-04-2023
Trina Aixa Cosme-Almandoz and Alejandro J. Estrella, Plaintiffs, v. Paul L. Alejandrino and Alexander P. Ermita Alejandrino, Defendants.
Ofshtein Law Firm, P.C., Brooklyn (William L. Wexler of counsel), for Plaintiffs. Russo & Gould, LLP, New York City (Svitlana Astakhova of counsel), for Defendants.
Unpublished Opinion
Ofshtein Law Firm, P.C., Brooklyn (William L. Wexler of counsel), for Plaintiffs.
Russo & Gould, LLP, New York City (Svitlana Astakhova of counsel), for Defendants.
Aaron D. Maslow, J.
The following numbered papers were read on this motion:
NYSCEF Doc No. 1: Summons and Complaint, submitted by Plaintiffs
NYSCEF Doc No. 22: Notice of Motion, submitted by Defendants
NYSCEF Doc No. 23: Affirmation of Alejandra Lara in Support, submitted by Defendants
NYSCEF Doc No. 24: Statement of Facts, submitted by Defendants
NYSCEF Doc No. 25: Memorandum of Law, submitted by Defendants
NYSCEF Doc No. 26: Exhibit A - Police Report, submitted by Defendants
NYSCEF Doc No. 27: Exhibit B - Bill of Particulars, submitted by Defendants
NYSCEF Doc No. 28: Exhibit C - Plaintiff Trina Aixa Cosme-Almandoz's Deposition EBT Transcript, submitted by Defendants
NYSCEF Doc No. 29: Exhibit D - Plaintiff Alejandro J. Estrella's Deposition EBT Transcript, submitted by Defendants
NYSCEF Doc No. 30: Exhibit E - Dr. Dorothy Scarpinato's IME Report re Trina Aixa Cosme-Almandoz, submitted by Defendants
NYSCEF Doc No. 31: Exhibit F - Dr. Dorothy Scarpinato's IME Report re Alejandro J. Estrella, submitted by Defendants
NYSCEF Doc No. 32: Exhibit G - Dr. Audrey Eisenstadt's MRI Reports re Alejandro J. Estrella, submitted by Defendants
NYSCEF Doc No. 33: Exhibit H - Dr. Audrey Eisenstadt's MRI Reports re Trina Aixa Cosme-Almandoz, submitted by Defendants
NYSCEF Doc No. 34: Affidavit of Service, submitted by Defendants
NYSCEF Doc No. 35: Affirmation of Akiva Ofshtein in Opposition, submitted by Plaintiffs
NYSCEF Doc No. 36: Response to Statement of Facts, submitted by Plaintiffs
NYSCEF Doc No. 37: Exhibit A - Dr. Ruben Oganesov's Report re Trina Aixa Cosme-Almandoz, submitted by Plaintiffs
NYSCEF Doc No. 38: Exhibit B - Dr. Ruben Oganesov's Report re Alejandro J. Estrella, submitted by Plaintiffs
NYSCEF Doc No. 39: Exhibit C - Dr. Richard Apple's Reports re Trina Aixa Cosme-Almandoz, submitted by Plaintiffs
NYSCEF Doc No. 40: Exhibit D - Dr. Andrew J. Dowd's and Dr. Jinghui Xie's Reports re Alejandro J. Estrella, submitted by Plaintiffs
NYSCEF Doc No. 41: Exhibit E - Dr. Mark J. Decker's and Dr. Samuel Mayerfield's MRI reports re Trina Aixa Cosme-Almandoz, submitted by Plaintiffs
NYSCEF Doc No. 42: Exhibit F - Dr. Mark Lodespoto's, Dr. Mark J. Decker's, and Dr. Samuel Mayerfield's MRI reports re Alejandro J. Estrella, submitted by Plaintiffs
NYSCEF Doc No. 43: Exhibit G - Various Examination and Treatment Reports and Records re Trina Aixa Cosme-Almandoz, submitted by Plaintiffs
NYSCEF Doc No. 44: Exhibit H - Various Examination and Treatment Reports and Records re Alejandro J. Estrella, submitted by Plaintiffs
NYSCEF Doc No. 45: Roberson v Gould, submitted by Plaintiffs
NYSCEF Doc No. 46: Stipulation, submitted by Defendants
NYSCEF Doc No. 47: Letter, submitted by Defendants
NYSCEF Doc No. 48: Reply Affirmation of Trishé L.A. Hynes in Support, submitted by Defendants
NYSCEF Doc No. 49: Memorandum of Law, submitted by Defendants
NYSCEF Doc No. 50: Affidavit of Service, submitted by Defendants
I. Introduction
Plaintiffs Trina Aixa Cosme-Almandoz ("Trina" hereinafter) and Alejandro J. Estrella ("Alejandro" hereinafter) assert in this action that they sustained personal injuries while occupying a vehicle driven by Trina on April 27, 2019, as a result of the negligent operation of another vehicle driven by Defendant Alexander P. Ermita Alejandrino and owned by Defendant Paul L. Alejandrino. Said Defendants now move for summary judgment, claiming that both Plaintiffs failed to meet the "serious injury" threshold of Insurance Law §5104 (a), as defined in §5102 (d). There are nine categories of serious injury, per Insurance Law §5102 (d).
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]; Andre v Pomeroy, 35 N.Y.2d 361 [1974]).
The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari v Elliott, 57 N.Y.2d 230 [1982]). The moving Defendants bear the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that Plaintiff has not suffered a serious injury proximately resulting from the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955 [1992]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 [2016]).
If Defendants have made such a showing that Plaintiff has not suffered a serious injury from the subject motor vehicle accident as a matter of law, i.e., that Plaintiff does not qualify under the relevant serious injury threshold categories as there are no material issues of fact, the burden shifts to Plaintiff to submit evidence in admissible form to establish that there are material issues of fact (see Franchini v Palmieri, 1 N.Y.3d 536 [2003]; Grasso v Angerami, 79 N.Y.2d 813 [1991]).
II. Adjournment Request & Application to Take Judicial Notice
Following a pre-argument conference, at which Plaintiff's counsel realized that his clients' evidence might not sufficiently rebut that of Defendants', counsel moved for an adjournment to submit further evidence in opposition to the motion. This Court denied the application on the record. This motion, originally noticed by Defendants for October 26, 2022, had been adjourned several times previously according to court records, and both sides submitted ample briefing and evidence by way of written arguments and medical reports and records. Therefore, the motion was deemed ready for argument and further delay to submit further papers would have unjustifiably delayed its resolution. (See Vassiliou-Sideris v Nautilus, Inc., 186 A.D.3d 1756 [2d Dept 2017]; Puzzo v Ayoub, 137 A.D.3d 770 [2d Dept 2016]; Turko v Daffy's, Inc., 111 A.D.3d 615 [2d Dept 2013]; Flores v. Stankiewicz, 35 A.D.3d 804 [2d Dept 2006].)
Likewise this Court rejected Plaintiff's counsel's application for this Court to take judicial notice that defendant IME doctors look to find lack of serious injury and causation when examining plaintiffs and preparing their reports. IME physicians do bear ethical responsibilities even though they are not treating the examinee, and the Court of Appeals has described the relationship between a doctor performing an IME and the person being examined as a "limited physician-patient relationship" (Bazakos v Lewis, 12 N.Y.3d 631, 635 [2009]; cf. Vidal v Maldonado, 23 Misc.3d 186, 187-188 (Sup Ct, Bronx County 2008)).
Moreover, as this Court noted during argument, a defendant might argue that a plaintiff's physician looks to find the presence of serious injury. In any event, ever since the adoption in 1973 of the legislatively enacted No-Fault/serious injury tradeoff for dealing with motor vehicle accidents (see Long Island Radiology v Allstate Ins. Co., 36 A.D.3d 763, 764-765 [2d Dept 2007]; Rowe v Wahnow, 26 Misc.3d 8 [App Term, 1st Dept 2009, McKeon, J., dissenting]), the usage of IME reports on defendants' motions for summary judgment on the issue of serious injury has been sanctioned by judicial decision (e.g. Toure, 98 N.Y.2d 345; Gaddy, 79 N.Y.2d 955]). The case reports are replete with decisions on thousands of serious injury summary judgment motions where defendants' IME reports were considered.
Further, the time within which to assert a claim of bias by a physician designated by a defendant to perform an IME is when the demand for the examination is made - not during oral argument on the defendants' motion for summary judgment (see Lewis v John, 87 A.D.3d 564 [2d Dept 2011]; Pettway v Ogbonna, 261 A.D.2d 700 [3d Dept 1999]).
III. Bill of Particulars
In Plaintiffs' bill of particulars, Trina (36 years old when the accident occurred) claimed injuries to the cervical spine (including disc herniations), lumbar spine, right shoulder, and thoracic spine. She asserted that the injuries caused significant pain when performing daily activities. As for serious injury threshold categories, Trina claimed, "permanent loss of use of a body organ or member; significant limitation of use of a bodily function or system; [and] a medically determined injury... prevent[ing] plaintiff from performing substantially all... daily activities for... 90 days during the 180 days immediately following the occurrence of the injury." (NYSCEF Doc No. 27, bill of particulars ¶ 9.)
In the same bill of particulars, Alejandro (35 years old when the accident occurred) claimed injuries to the cervical spine (including disc herniation), lumbar spine (including disc herniation), left ankle, left shoulder, and right shoulder (including arthroscopic surgery). He asserted that these injuries caused significant pain and restricted his ability to perform daily activities. As for serious injury threshold categories, Alejandro claimed, "permanent loss of use of a body organ or member; significant limitation of use of a bodily function or system; [and] a medically determined injury... prevent[ing] plaintiff from performing substantially all... daily activities for... 90 days during the 180 days immediately following the occurrence of the injury." (id.).
IV. Defendants' Evidence
In their motion for summary judgment, Defendants first relied on an affirmed independent medical examination ("IME") report prepared by Dr. Dorothy Scarpinato, a Board certified orthopedic surgeon, detailing her June 10, 2021 examinations of Plaintiffs, findings, and conclusions. Second, Defendants also relied on reports of Dr. Audrey Eisenstadt M.D., a Board certified radiologist, which detailed her opinions concerning the history, extent, diagnosis, impact, prognosis, permanency, nature, cause, and etiology of Plaintiffs' alleged injuries based on reviews of MRIs. Third, Defendants relied on the certified deposition EBT transcripts of Defendants' testimony given on April 2, 2021.
A. Plaintiff Trina
(1) Dr. Dorothy Scarpinato's Exam Report [NYSCEF Doc No. 30]
In her June 10, 2021 report, Dr. Scarpinato noted that Trina was the driver of a vehicle when she was rear-ended. She wore her seatbelt. She did not seek immediate medical attention but later followed up with her medical doctor for neck, back, and right shoulder pain. Treatment consisted of physical therapy and chiropractic care. At the IME, Trina complained of neck, back, right shoulder, and right hip pain. She had no other complaints at the time of the examination. Dr. Scarpinato listed the numerous post-accident treatment records which she reviewed.
Trina ambulated with a normal gait and without assistive devices. Dr. Scarpinato compared Trina's observed ranges of motion to what was considered to be normal and found full range of motion throughout all movements of her cervical spine, right shoulder, thoracolumbar spine, and right hip. Range of motion testing was performed using a goniometer and the standards were based on the AMA Guides to Evaluation of Permanent Impairment, 5th Edition.
Dr. Scarpinato also conducted a shoulder Impingement Test and a Straight Leg Raise Test, which yielded negative results. Dr. Scarpinato also found that Trina scored five out of a possible five (5/5) in R/C strength of the right shoulder; had no muscle spasm, no sensorial deficits, no atrophy, and no tenderness in the thoracolumbar spine; and had normal handgrip, and normal pinch and grasp.
Dr. Scarpinato diagnosed resolved cervical spine strain, lumbar spine strain, and right shoulder sprain. Notably, she added:
Currently, the claimant reports subjective complaints of some neck, back, and right shoulder pain but states that she is no longer receiving treatment. The subjective presentation could not be corroborated by any objective clinical examination findings. Despite the subjective presentation, Ms. Cosme-Almandoz is not receiving any active treatment. Based on the mechanism of injury occurring more than two years ago and in the absence of any objective findings, my impression is cervical spine strain- resolved, lumbar spine strain- resolved, and right shoulder sprain- resolved.
In review of the available records, it is evident that the claimant underwent diagnostic imaging which disclosed disc pathology, but this was associated with spondylotic ridging. The presence of disc pathology when associated with spondylotic ridging suggests long-standing conditions. These do not represent traumatic injury. According to the report of the right shoulder MRI from Stand-Up MRI of Queens dated 8/27/19, the claimant had sustained capsular thickening and a SLAP tear; this too is associated with other degenerative changes including tendinopathy of the infraspinatus and subchondral cyst formation at the head of the insertion. These findings are common even in the asymptomatic population. On examination, there was no evidence of any clinical signs to suggest that these conditions are currently affecting the claimant. [emphasis added].
There is no orthopedic disability or any orthopedic residuals as a result of this subject accident. The claimant is currently working as a nurse and is able to continue to do so and perform her normal activities of daily living without any restrictions or limitations. No orthopedic treatment is indicated and/ or warranted as a result of this subject accident.
(2) Dr. Audrey Eisenstadt's MRI Reports [NYSCEF Doc No. 33]
Dr. Eisenstadt examined MRI films of Trina's lumbar spine and thoracic spine taken June 13, 2019; cervical spine taken June 8, 2019; and right shoulder taken Aug. 27, 2019. She summarized her findings for each of the injuries:
Lumbar Spine
Review of the lumbar spine MRI examination performed on month, sixteen days following the incident reveals no posttraumatic abnormality. A mild levoscoliosis is noted. This is a minimal curvature of the spine to the left, most commonly related to a congenital/developmental abnormality. No osseous, paravertebral or soft tissue changes are seen as the etiology for this common developmental variant. The intervertebral disc structures are normal in appearance. No paravertebral, osseous or soft tissue injury is seen causally related to the 04/27/19 incident. [emphasis added]
Thoracic Spine
Review of the thoracic spine MRI examination performed one month, sixteen days following the incident reveals a dextroscoliosis. This involves a curvature of the thoracic spine to the right. No traumatic, bony, intervertebral or paravertebral etiology for this curvature to the right is seen. Scoliosis, a common developmental variant has no post traumatic etiology in this case. The intervertebral disc structures are intact with no disc bulging or disc herniations seen. No bony contusion or fracture is seen. No paravertebral abnormality is noted and no soft tissue pathology is seen. [emphasis added]
Cervical Spine
Review of the limited cervical spine MRI examination performed one month, eleven days following the incident reveals degenerative disc disease, which could not have occurred in the short time interval between the examination and the incident. There is desiccation of all intervertebral disc levels noted. This drying out of disc material is over three months in development and has no traumatic etiology. Posterior discogenic ridging or bony productive changes arising from the posterior vertebral body are seen at the C3-4 through the C5-6 intervertebral disc levels associated with disc bulging at the same disc levels. Disc bulging is not a traumatic process. It is degenerative in origin related to ligamentous laxity and weakening of the outer ligamentous fibers. It is the stimulus for the posterior discogenic ridging, as well as uncinate/facet joint hypertrophy noted at the C3-4 and C5-6 intervertebral disc levels. These bony productive changes, degenerative in etiology, are well over six months in origin and a response to the chronic disc bulging. No focal disc herniation, annular tear or osseous contusion causally related to the incident of 04/27/19 is seen." [emphasis added]
Right Shoulder
Degenerative changes are identified at the acromioclavicular joint with hypertrophic bony spurring and capsular expansion seen. There is a bone cyst identified in the greater tuberosity of the humerus.
...
Review of the MRI scan of the right shoulder performed four months following the incident reveals no acute or posttraumatic changes. A hooked acromion is seen. This common congenital variant is present in a third of the population and results in narrowing of the subacromial space due to the low lying position of the hook in the distal acromion which is indenting the subacromial region and impression on the structures passing through the subacromial space. These structures include the rotator cuff musculature, glenoid labrum and biceps tendon, all of which are normal in appearance. There is a bone cyst seen in the greater tuberosity of the humerus, a developmental abnormality common in the population which has no traumatic etiology or association with the incident. No cortical disruption or surrounding bone marrow edema is seen. No subacromial/subdeltoid bursal fluid or glenohumeral joint effusion is noted, a finding which would be seen with any recent trauma or active intra-articular inflammation. Other structures besides the intact rotator cuff musculature include the biceps tendon and glenoid labrum, both of which are normal in appearance. Any traumatic labral tear would be associated with underlying glenoid bone marrow edema to which the cartilaginous labrum is firmly attached, as well as a glenohumeral joint effusion. No acute or recent posttraumatic abnormalities are seen. [emphasis added]
(3) Examination Before Trial [NYSCEF Doc No. 28]
Defendants' counsel, in their affirmation (NYSCEF Doc No. 23, Affirmation of Alejandra Lara in Support at 3-4), emphasized the following testimony given by Trina at her deposition, the transcript of which was submitted as NYSCEF Doc No. 28:
On April 27, 2019, she was driving her mother's KIA Sorento, when she was rear-ended by Defendant's vehicle (citing NYSCEF Doc No. 28 at 12). Her boyfriend, Alejandro, was a passenger in the vehicle (citing id.). She did not sustain any cuts, bruises, selling, or bleeding as a result of impact (citing id. at 33). Despite complaints of pain to neck, right shoulder, lower back, and right hip, Trina declined ambulatory transpiration to a hospital (citing id. at 23). Alejandro drove her home after the accident (citing id. at 26). Medical treatment was not sought until two weeks later in which she was given Motrin for the pain (citing id. at 30-31). Following the initial exam, she underwent physical therapy, acupuncture, and met with a chiropractor but ceased treatment after 2019 (citing id. at 32).
Employed as a nurse, Trina did not miss any work following the accident (citing id. at 27). She later alleged that she could not go for long walks, bike ride, play basketball, or sit for long periods (citing id. at 40).
B. Plaintiff Alejandro
(1) Dr. Dorothy Scarpinato's Exam Report [NYSCEF Doc No. 31]
Dr. Scarpinato noted that Alejandro was a front-seat passenger wearing a seatbelt when the vehicle was hit in the rear. He did not seek medical attention the day of the accident despite complaining of neck, back, bilateral shoulders, and left ankle pain. Treatment consisted of physical therapy and chiropractic care. At the IME, Alejandro complained of neck, back, right shoulder, and right hip pain. He had no other complaints at the time of the examination. Dr. Scarpinato listed the numerous post-accident treatment records which she reviewed.
Alejandro ambulated with a normal gait and without assistive devices. Dr. Scarpinato compared Alejandro's observed ranges of motion to what is considered to be normal and found full range of motion throughout all planes of the cervical spine, bilateral shoulders, thoracolumbar spine, and left ankle. Range of motion testing was performed using a goniometer and the standards were based on the AMA Guides to Evaluation of Permanent Impairment, 5th Edition.
Dr. Scarpinato also conducted an Impingement Test and Straight Leg Raise Test yielding negative results. Dr. Scarpinato also found that the Plaintiff scored 5/5 on the R/C strength test; had no muscle spasm, no atrophy, no sensorial deficits, swelling, and no tenderness in all but the thoracolumbar spine; and had normal handgrip, pinch and grip.
Dr. Scarpinato diagnosed the cervical spine, lumbar spine, bilateral shoulders, and left ankle as resolved. Notably, she added:
On examination today, I did not identify any objective orthopedic findings related to any of these areas that would suggest that there is an ongoing unresolved orthopedic condition. Instead, I found normal range of motion about the spine and extremities and a history of right shoulder surgery on October 23, 2019. The portals were visualized and well-healed. Again, the claimant's range of motion was normal, and all other orthopedic assessments were normal as well. My impression is that this claimant sustained a cervical spine strain- resolved, lumbar spine strain- resolved, bilateral shoulder sprains- resolved, and left ankle sprain- resolved.
With reference to the Bill of Particular and the available medical records, the claimant underwent diagnostic imaging of the spine and the shoulders. The claimant had multiple levels of discopathy and discogenic end plate reaction. These suggest chronic changes and not conditions related to a single traumatic event. With regard to the left shoulder, there was AC joint hypertrophy, a joint effusion, and some capsular thickening also suggesting long-standing conditions. The right shoulder imaging study revealed tendinopathy and fraying which is also considered chronic in nature. It is my opinion that the right shoulder surgery performed on October 23, 2019 was due to preexisting pathology of the shoulder and not causally related to this subject accident. [emphasis added]
It is my opinion that this claimant does not present with any orthopedic findings related to the accident of record. The alleged orthopedic injuries have fully resolved. No orthopedic treatment is indicated and/or warranted as a result of this subject accident. There is no orthopedic disability as a result of this accident of record. The claimant is a restaurant worker and is currently working full-time. He is able to continue working in usual capacity as well as his normal daily activities without any limitations or restrictions.
(2) Dr. Audrey Eisenstadt's MRI Reports [NYSCEF Doc No. 32]
Dr. Eisenstadt examined MRI films of Alejandro's cervical spine taken May 23, 2019; left shoulder taken June 10, 2019; lumbar spine and left right shoulder taken June 11, 2019; and left ankle taken June 13, 2019. She summarized her findings for each of the injuries:
Lumbar Spine
Review of the lumbar spine MRI examination performed one-and-a-half months following the incident reveals no posttraumatic osseous, ligamentous, intervertebral or paravertebral changes causally related to the 04/27/19 incident. Anterior osteophyte formation with endplate signal change of the L1-2 greater than L5-S1 intervertebral disc level is noted. These bony productive changes are over six months in development and typical in appearance and distribution for arthritis. No traumatic bony injury is seen. No bone contusion or fracture is noted. Desiccation or drying out of the L1-2 and L4-5 intervertebral disc levels is noted. This is another manifestation of degenerative disc disease over three months in origin. It involves a drying out of disc material, which could not have developed in one-and-a-half months' time and has no traumatic etiology. Mild bulging of the L1-2 and L4-5 intervertebral disc levels is also noted. Disc bulging is not a traumatic process. It is degenerative in origin related to ligamentous laxity and weakening of the outer ligamentous fibers. At no level is there an osseous contusion, disc herniation, annular tear or thecal/neural displacement seen posttraumatic in origin or causally related to the 04/27/19 incident. [emphasis added]
Left Shoulder
Review of the MRI scan of the left shoulder performed one months, three days following the incident reveals narrowing of the subacromial space or an impingement syndrome due to developmental and degenerative changes seen at the acromioclavicular joint. Neither of them have any association to the 04/27/19 incident. There is a low-lying acromion noted, a common congenital abnormality. It is resulting in narrowing of the subacromial space, impression on the subacromial region which is compounded by degenerative joint disease at the acromioclavicular joint with hypertrophic bony spurring and capsular expansion seen. There is resulting effacement of the subacromial fat pad and impression on the structures passing through the subacromial region. These structures include the rotator cuff musculature, glenoid labrum and biceps tendon. Mild distal supraspinatus tendinopathy is seen beyond the narrowing of the subacromial space. Any traumatic etiology for this tendinopathy would be associated with marrow edema at its insertion into the greater tuberosity of the humerus, as well as fluid in the subacromial bursa located directly above the rotator cuff musculature. None of these findings are identified. Other structures affected by impingement include the biceps tendon and glenoid labrum. Both are normal in appearance with no evidence of tenosynovitis, biceps tendinopathy or a glenoid cartilaginous labral tear, which would be associated with underlying glenoid bone marrow edema and a glenohumeral joint effusion, none of which are seen on this examination. No acute or recent posttraumatic changes are seen. [emphasis added]
Cervical Spine
Review of the cervical spine MRI examination performed just under four weeks following the incident reveals desiccation or drying out of the C4-5 through C6-7 intervertebral discs, a process over three months in development and with no traumatic etiology. It is associated with disc bulging at the same intervertebral disc levels. Disc bulging is not a traumatic process. It is degenerative in origin related to ligamentous laxity and weakening of the outer ligamentous fibers. It is a manifestation of degenerative disc disease at the most common levels in the population for cervical arthritis to occur. The disc desiccation and disc bulging strongly indicate that the small central C5-6 disc herniation is degenerative in origin as well. Degenerative disc disease is one of the most common etiologies for cervical disc herniations to develop and the C5-6 level is the most common level in the population for cervical arthritis to occur. No annular tear or hemorrhage in the disc fibers is noted to indicate a recent or traumatic disc injury. No bony contusion or prevertebral swelling is seen. The changes seen are classic in appearance for cervical degenerative disc disease to occur. [emphasis added]
Right Shoulder
Review of the MRI scan of the right shoulder performed one-and-a-half months following the incident reveals developmental and degenerative changes at the acromioclavicular joint resulting in narrowing of the subacromial space and effacement of the subacromial fat pad. A hooked acromion is seen, a common developmental variant in the population present in one-third of individuals. It results in effacement of the subacromial fat pad and impression on the subacromial space. It is compounded by hypertrophic bony spurring and capsular expansion seen at the acromioclavicular joint further narrowing the subacromial region and impressing on the structures passing through the subacromial space. These structures include the rotator cuff musculature, glenoid labrum and biceps tendon. No rotator cuff tear is seen. Mild distal supraspinatus tendon beyond the hook in the acromion is noted. Any traumatic etiology for this mild tendinopathy occurring one-and-a-half months prior to this examination would be associated with insertional bone marrow edema where the tendon is pulled off the bone, as well as subacromial/subdeltoid bursal fluid located directly above the subacromial space. None of these findings are seen on this examination. No biceps tendon or glenoid labral pathology is seen. No acute or recent posttraumatic osseous, tendinous, ligamentous or labral tears are seen to indicate any recent trauma or active inflammation casually related to the incident of 04/27/19. [emphasis added]
Left Ankle
Review of the left ankle MRI scan performed one month, sixteen days following the incident reveals degenerative cyst formation seen in the region of the sinus tarsi with no cortical disruption or marrow edema seen. This is a common developmental variant. Bone cysts have no traumatic etiology or association with the incident. No bony fractures, bone contusions or soft tissue swelling is seen. No tendinous or ligamentous abnormality is noted. No Achilles tendon or plantar aponeurosis pathology is seen. Not even a joint effusion to indicate any recent trauma or active inflammation is noted associated with the incident of 04/27/29. [emphasis added]
(3) Examination Before Trial [NYSCEF Doc No. 29]
Defendants' counsel, in their affirmation (NYSCEF Doc No. 23, Affirmation of Alejandra Lara in Support at 8-9) emphasized the following testimony given by Alejandro at his deposition, the transcript of which was submitted as NYSCEF Doc No. 29:
On April 27, 2019, he was a passenger in Trina's mother's KIA Sorento when they were rear-ended by Defendants' vehicle (citing NYSCEF Doc No. 28 at 11). After the accident, he experienced pain in his right shoulder, left ankle, upper back, and lower back (citing id. at 14). Before he drove home, EMTs gave him an ice pack and offered a cervical collar, which was declined (citing id. at 14-15).
Medical treatment was first sought a week after the accident (citing id. at 16). After a physical examination, including MRIs of his cervical spine, lumbar spine, left ankle, and right shoulder by Dr. Dowd at Healthwise, physical therapy for the afflicted areas was recommended (citing id. at 18). Physical therapy lasted only for the duration of 2019, during which time he also underwent right shoulder surgery with Dr. Dowd (citing id. at 18-21).
He missed at most one or two days of work following the accident (citing id. at 15-16). Despite his injuries, upon returning to work he was able to dishwash, bring groceries, make deliveries, and manage the restaurant for which he worked (citing id. at 7). Still, he alleges not being able to walk for more than a block, dance, sit or stand for too long, concentrate, have normal sexual intercourse, stretch, or sleep (citing id. at 30).
C. Discussion re Defendants' Evidence
As set forth above, Plaintiffs claimed the identical serious injury threshold categories in their bill of particulars (see NYSCEF Doc No. 27, Bill of Particulars). They claimed that the serious injuries were "[a]s a result of this occurrence" (id. at ¶ 9).
(1) Permanent Loss of Use of a Body Organ, Member, Function, or System
A plaintiff claiming this category must prove that the permanent loss of use is a total loss of use (see Oberly v Bangs Ambulance, Inc., 96 N.Y.2d 295 [2001]). Dr. Scarpinato's IME reports established a prima facie case that neither Plaintiff sustained the total loss of use of an organ, member, function, or system.
(2) Significant Limitation of Use of a Body Function or System
Dr. Scarpinato's IME reports (NYSCEF Doc Nos. 30, 31) showing no limitations in any body function or system made out Defendants' prima facie case that this limitation category was not met by Plaintiffs (see Toure, 98 N.Y.2d 345; Gaddy, 79 N.Y.2d 955).
(3) 90/180
This category is defined specifically as "a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material ac ts 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" (Insurance Law §5102[d] [emphasis added]). Defendants made out a prima facie case that there was no issue of fact concerning the 90/180 category, emphasizing that, although Plaintiffs identified a limited number of tasks presenting difficulty, there was no evidence to suggest that substantially all of their activities were curtailed for 90 of the 180 days following the accident (see Licari, 57 N.Y.2d 230; Lanzarone v Goldman, 80 A.D.3d 667 [2d Dept 2011]); Below v Randall, 240 A.D.2d 939 [3d Dept 1997]).
Trina neither took time off from work nor sought medical attention until a week after the accident. Trina's bill of particulars assertion that she was confined to bed/home for a period of three days (see NYSCEF Doc No. 27, Bill of Particulars ¶ 12), combined with her deposition testimony that she missed about six days from work since the accident (see NYSCEF Doc No. 28 at 40), impaired her 90/180 claim. (See Il Chung Lim v Chrabaszcz, 95 A.D.3d 950 [2d Dept 2012]; Balshan v Bouck, 206 A.D.2d 747 [3d Dept 1994].) Similarly, Alejandro's bill of particulars assertion that he was confined to bed/home for 14 days (see NYSCEF Doc No. 27, Bill of Particulars ¶ 12) precluded his 90/180 claim (see Il Chung Lim, 95 A.D.3d 950). Defendants therefore met their burden of proof to establish a prima facie showing that Plaintiffs failed to meet the 90/180 category.
(4) Proximate Causation
Dr. Scarpinato opined that Trina's right shoulder and spine conditions were not proximately caused by the subject motor vehicle accident (see NYSCEF Doc No. 30, Dr. Scarpinato's IME Report re Trina at 4). Trina's spine conditions were long-standing and non-representative of posttraumatic injury whereas the right shoulder condition was also associated with degenerative changes, according to Dr. Scarpinato (see id.). Dr. Eisenstadt concurred that Trina's lumbar and thoracic spine conditions were not causally related to the accident and had no post-traumatic etiology, whereas Trina's cervical spine and right shoulder were indicative of degenerative changes. Her findings in that regard were detailed and thorough. (See NYSCEF Doc No. 33, Dr. Eisenstadt's MRI Reports re Trina).
Dr. Scarpinato similarly opined that Alejandro's spine and shoulder conditions were not proximately caused by the accident (see NYSCEF Doc No. 31, Dr. Scarpinato's IME Report re Alejandro at 4). Alejandro's spine and shoulder conditions were chronic and unrelated to a traumatic event, according to Dr. Scarpinato (see id.). Dr. Eisenstadt also noted degenerative findings in Alejandro's cervical spine, lumbar spine, thoracic spine, right shoulder, left shoulder, and left ankle, and they too were detailed and thorough (see NYSCEF Doc No. 32, Dr. Eisenstadt's MRI Reports re Alejandro).
Defendants' initial burden on the issue of proximate causation has been satisfied (see Lemieux v Horn, 39 N.Y.3d 1108 [2023], affg 209 A.D.3d 1100 [3d Dept 2022]).
V. Plaintiffs' Evidence
Defendants having established a prima facie case to the effect that neither Plaintiff sustained a serious injury, the burden shifted to Plaintiffs to submit evidence, in admissible form, rebutting the presumption that there was no issue of fact as to the threshold question (see Franchini, 1 N.Y.3d 536; Grasso, 79 N.Y.2d 813). In opposition, Plaintiffs submitted an affirmation from their attorney Akiva Ofshtein that relied on affirmed reports from Dr. Ruben Oganesov, M.D., dated October 11, 2022, detailing his examinations of Plaintiffs, findings, and conclusions (see NYSCEF Doc Nos. 37, 38); Trina's procedure records and follow-up examinations by Dr. Richard Apple, M.D., on October 26, 2019 and January 26, 2020 (see NYSCEF Doc No. 39); Alejandro's medical records from Drs. Dowd and Jinghui Xie, dated June 12, 2019; October 12, 2019; and October 23, 2019 (see NYSCEF Doc. No. 40); and Plaintiffs' other medical records (see NYSCEF Doc Nos. 43, 44).
A. Medical Records
In NYSCEF Doc Nos. 41-42, Plaintiffs submitted MRI reports (referenced in Dr. Scarpinato's IME reports).
(1) Trina's MRIs
Trina's MRI films revealed the following (see NYSCEF Doc No. 41):
MRI of the Cervical Spine (June 8, 2019)
INTERPRETATION:
Lordosis is maintained. Diffuse loss of disc signal and height C2-C3 through C6-C7. C2- C3: no herniation, foraminal encroachment, or stenosis. C3-C4: broad bulge and spondylotic ridge impressing on the thecal sac; no herniation or foraminal encroachment; no stenosis. C4-C5: broad bulge and spondylotic ridge with central herniation and no contact of the cord; no stenosis; Luschka hypertrophy on the right with no foraminal encroachment. C5-C6: broad bulge with asymmetry of right herniation impressing on the thecal sac with no contact of the cord; no stenosis; Luschka hypertrophy with inferior foraminal encroachment. C6-C7: broad bulge; no herniation, foraminal encroachment, or stenosis. C7-C11: no herniation, foraminal encroachment, or stenosis. Cord demonstrates no atrophy or enlargement. Craniometrical junction is normally positioned. Facets are aligned and ligaments are intact. No pre or paravertebral soft tissue lesion. No posterior fluid collection.
IMPRESSION:
Diffuse loss of disc signal and height C2-C3 through C6-C7. C3-C4 broad bulge and spondylotic ridge impressing on the thecal sac; no herniation or foraminal encroachment; no stenosis. C4-C5 broad bulge and spondylotic ridge with central herniation and no contact of the cord; no stenosis; Luschka hypertrophy on the right with no foraminal encroachment. C5-C6 broad bulge and asymmetry of right herniation impressing on the thecal sac with no contact of the cord; no stenosis; Luschka hypertrophy with inferior foraminal encroachment. C6-C7 broad bulge; no herniation, foraminal encroachment, or stenosis.
MRI of the Lumbar Spine (June 13, 2019)
INTERPRETATION:
There is lumbar levoconvexity spasm idiopathic, which may be secondary to reflex muscle spasm idiopathic. L4/5 and L5/Sl: Posterior central disc bulges indents the thecal sac; no central canal or neural foraminal stenosis seen. Schmorl's nodes are noted at L1 and L2 vertebra. No evidence for fracture, anterolisthesis, central stenosis, facet arthropathy, intraosseous lesion. Examination, otherwise, demonstrates the remaining lumbar vertebral bodies and intervertebral discs to be unremarkable in height, alignment and signal. The conus medullaris is unremarkable in signal, morphology and position. No other significant intrusions are noted into the neural canal, recesses or foramina. No focal prevertebral or posterior paraspinal abnormal masses or altered signals are, otherwise, noted.
IMPRESSION:
Lumbar levocunvexity. Posterior central disc bulges L4/5 and L5/S1 indents the thecal sac.
MRI of the Right Shoulder (August 27, 2019)
INTERPRETATION:
AC joint hypertrophy. No suspension. No lateral sloping of the acromion. No inferior curvation. No narrowing of the supraspinatus outlet or humeral-acromial interval. Infraspinatus tendinopathy with 2-mm and 3-mm subchondral cysts at the humeral head insertion. No muscle atrophy or tear. Supraspinatus tendon is intact. Biceps is intact in the groove and at the anchor. No tenosynovitis. Subscapularis is intact. Anterior capsular thickening extending to the rotator interval. Posterior capsule is intact. Posterior labrum is intact. Sublabral foramen favored over SLAP tear. No effusion or fracture.
IMPRESSION:
Sublabral foramen favored over SLAP tear. Capsular thickening more noted anteriorly, which ca be seen with adhesive capsulitis. Infraspinatus tendinopathy with 2-mm and 3-mm subchondral cysts at the humeral head insertion.
MRI of the Thoracic Spine (June 13, 2019)
INTERPRETATION:
There is a dextroscoliotic curvature and slightly increased thoracic kyphosis. T2-T3: posterior central disc bulge identified indents the central CSF space. No focal thoracic disc herniation, central canal or neural foraminal stenosis identified. Thoracic spinal cord does not demonstrate any signal abnormality, focal expansion, syrinx, atrophy or mass lesion. Conus terminates at T12-L1. No evidence for marrow edema, fracture, arthropathy or intraosseous lesion. Posterior vertebral elements and paraspinal soft tissues are unremarkable.
IMPRESSION:
T2-T3 posterior central disc bulge. Thoracic dextroscoliosis and slightly increased thoracic kyphosis.
(2) Alejandro's MRIs
Alejandro's MRI films revealed the following (see NYSCEF Doc No. 42):
MRI of the Cervical Spine (June 10, 2019)
INTERPRETATION:
Vertebral bodies maintain unremarkable height, alignment and signal characteristics. Suspicion is not raised for compression fracture, subluxation or marrow replacement process. Anterolisthesis and retropulsion are absent. Posterior elements remain intact. Lordotic straightening is compatible with muscular spasm. Significant degenerative spondylosis has not developed. Uniform interspace heights. Endplates exhibit discogenic irregularities. C5-C6 possesses posterocentral subligamentous herniation. This extruded disc deforms ventral dural tube subarachnoid space. In addition, concentric annular bulges arise at C4-C5 and C5-C7. These discs efface epidural compartment and thecal sac as well. Central canal integrity is compromised. Intracanalicular caliber is reduced to about 1 cm. Adequately patent exiting neural foramina bilaterally. Spinal cord emanates homogeneous intramedullary matrix pattern. No discrete mass, syrinx cavitation, or fluid collection is declared.
IMPRESSION:
Cervical multilevel discopathy. C5-C6 herniation. C4-C5 and C6-C7 annular bulges. Spinal canal impingement produced. Cord preserved. Discogenic endplate reaction. Hypolordosis. No gross lesion suspected.
MRI of the Lumbar Spine (June 11, 2019)
INTERPRETATION:
L1-L2: Annular disc bulge; canal and neural foramina are patent. L2-L3, L3-L4: No disc herniation or central stenosis. L4-L5: Posterior central disc herniation with thecal sac deformity. L5-S1: Posterior central disc bulge; canal and neural foramina are patent. Disc hydration loss at L4-L5. O disc space narrowing, anterolisthesis, fracture, and central stenosis, or facet arthropathy. Examination otherwise demonstrates the remaining lumbar vertebral bodies and intervertebral discs to be unremarkable in height and signal. The conus medullaris is unremarkable in signal, morphology and position. No focal prevertebral or posterior paraspinal abnormal masses or altered signals are otherwise noted.
IMPRESSION:
L4-L5 posterior central disc herniation with thecal sac deformity. L5-S1 posterior central disc bulge.
MRI of the Left Ankle (June 13, 2019)
INTERPRETATION:
No fracture of the tibia. No fracture of the fibula. No osteochondral defect of the talar dome. No coalition. No erosion. Spurring of the talus projecting into the tarsal sinus with scarring of the tarsal sinus ligaments. Dorsal spurring of the talonavicular joint. Calcaneocuboid joint is intact with dorsal lateral spurring. Plantar fascia is thickened at the origin. Achilles insertional tendinopathy. Extensor tendons are intact. No tenosynovitis. Personal tendons are intact. No tenosynovitis or subluxation. Posterior tibial tendon is intact. Tenosynovitis. No lesion of the tarsal tunnel. No lesion of the tarsal sinus. Scarring of the tarsal sinus ligaments and fat. No soft tissue lesion.
IMPRESSION:
Posttraumatic scarring of the tarsal sinus ligaments and fat with spurring of the talus projecting into the sinus. Findings can be seen with sinus tarsi syndrome. Thickening of the plantar fascia at the origin with no tear or fracture. Insertional tendinopathy of the Achilles with no tear.
MRI of the Left Shoulder (June 10, 2019)
INTERPRETATION:
AC joint hypertrophy. No separation. No lateral sloping of the acromion. No inferior curvature. No narrowing of the supraspinatus outlet or humeral-acromial interval. Infraspinatus is intact. Supraspinatus is intact. Tendinopathy. Biceps is intact in the groove and at the anchor. Subscapularis is intact. Anterior capsular thickening extending to the rotator interval. Posterior capsular thickening. Inferior labrum is intact. Superior labrum is intact. Effusion. No fracture or dislocation.
IMPRESSION:
Joint effusion. Capsular thickening, which can be seen with adhesive capsulitis in the right clinical setting.
MRI of the Right Shoulder (June 11, 2019)
INTERPRETATION:
AC joint is intact. No lateral sloping of the acromion. No inferior curvature. No narrowing of the supraspinatus outlet or humeral-acromial interval. Infraspinatus tendinopathy. No muscle atrophy or tear. Supraspinatus tendinopathy and fraying. No muscle atrophy or tear. Biceps is intact in the groove. Tendinopathy of the horizontal segment and anchor. Tenosynovitis. Subscapularis tendinopathy. Anterior capsular thickening extending to the rotator interval. Posterior inferior capsular thickening. Inferior labrum is intact. Superior labrum is intact. No dislocation. No fracture. Joint effusion.
IMPRESSION:
Supraspinatus tendinopathy and fraying. Capsular thickening, which can be seen with adhesive capsulitis. Joint effusion. Biceps tenosynovitis.
(3) Discussion re MRIs
The spine MRI reports recorded disc herniations and bulges (see NYSCEF Doc Nos. 41- 42). These reports did not create an issue of fact as to serious injury since they did not provide objective evidence of the extent or degree or alleged physical limitations (see Pommels v Perez, 4 N.Y.3d 566 [2005]; Kearse v New York City Transit Authority, 16 A.D.3d 45 [2d Dept 2005]; Pierre v Nanton, 279 A.D.2d 621 [2d Dept 2001]. Trina's MRI of the right shoulder taken Aug. 27, 2019 revealed sublabral foramen favored over SLAP tear, capsular thickening, and tendinopathy (see NYSCEF Doc No. 41). Alejandro's left ankle MRI taken June 13, 2019 showed posttraumatic scarring, thickening, and tendinopathy; left shoulder MRI taken June 10, 2019 had joint effusion and capsular thickening; and right shoulder MRI taken June 11, 2019 had tendinopathy, fraying, capsular thickening, and joint effusion (see NYSCEF Doc No. 42). These reports did not create an issue of fact as to serious injury since they did not relate any conditions to limitations (see McLoud v Reyes, 82 A.D.3d 848 [2d Dept 2011]; Acosta v Alexandre, 70 A.D.3d 735 [2d Dept 2010]; Washington v Mendoza, 57 A.D.3d 972 [2d Dept 2008]).
(4) Other Medical Reports and Records
Dr. Ruben Oganesov conducted initial examinations of Plaintiffs on May 7, 2019, as reflected in reports dated October 11, 2022 (see NYSCEF Doc Nos. 37-38). He noted reduced ranges of motion for Trina's cervical and lumbar spine and opined: "Ms. Cosme remained grossly symptomatic five months following her injuries... which prevented her from performing substantially all... customary daily activities for no less than 90 of the 180 days" (NYSCEF Doc No. 37). Similarly, he noted decreased ranges of motion for Alejandro's cervical and lumbar spine and opined: "Mr. Estrella remained grossly symptomatic for about 3 months following his injuries. He had persistent spasm and restricted range of motion in cervical and lumbar spine and right shoulder, which prevented him from performing... customary daily activities for no less than 90 of the 180 days" (NYSCEF Doc No. 38). For each Plaintiff, Dr. Oganesov stated: "The [injuries are] directly and casually related to the injuries sustained in the automobile accident occurring on April 27, 2019" (NYSCEF Doc Nos. 37-38). Dr. Oganesov did not mention use of a goniometer, which means his findings are conclusory as he failed to establish objective findings of limitations (see Gersbeck v Cheema, 176 A.D.3d 684 [2d Dept 2019]; Alvarez v NYLL Management Ltd., 24 N.Y.3d 1191 [2015], affg 120 A.D.3d 1043 [1st Dept 2014]). Dr. Oganesov also did not address the degenerative conditions found by Dr. Eisenstadt, the failure of which has been reason for courts to grant summary judgment (see e.g. Devito v Anatra, 189 A.D.3d 1175 [2d Dept 2020]).
Dr. Richard Apple also conducted initial and follow-up examinations of Trina. He noted that Trina walked with an antalgic gait and observed decreased ranges in motion in her cervical spine, thoracic spine, lumbar spine, shoulders, and hip/pelvis (NYSCEF Doc No. 39). He further opined on October 26, 2019 that:
The motor vehicle accident that occurred on 04/27/2019 involving Cosme-Almandoz, Trina Aixa was a substantial factor and proximate cause in bringing about the injuries described above in this report. The basis of my opinion, to a reasonable degree of medical certainty, is the fact that she was involved in a motor vehicle accident, the patient's symptomatology, the patient's complaints, the correlating comparative diagnostic testing, the lack of previous medical history to the injured body parts, the corroborating MRI report, patient's response to conservative treatment, and scope of the professionals' evaluations, all point to a trauma induced injury.(NYSCEF Doc No. 39.)
In addition to not rebutting degenerative findings in either his October 26, 2019 and January 26, 2020 reports, Dr. Apple failed to specify the use of a goniometer, meaning findings of limitations were conclusory and not objective (see Gersbeck, 176 A.D.3d 684; Alvarez., 24 N.Y.3d 1191). While Dr. Apple's reports are unsworn, however, they are referenced in Dr. Scarpinato's affirmed reports and are therefore admissible evidence (see Djetoumani v Transit, Inc., 50 A.D.3d 944 [2d Dept 2008]).
Dr. Dowd's operative report dated June 12, 2019 discussed Alejandro's shoulder surgery on October 23, 2019, while Dr. Jinghui Xie's operative report detailed injections on October 12, 2019 (NYSCEF Doc No. 40). Dr. Dowd's operative report failed to quantify limitations as there was no mention of a goniometer. Furthermore, even though degrees are listed, it is of no probative value as an unaffirmed report. (See Grasso, 79 N.Y.2d 813; Matra v Raza, 53 A.D.3d 570 [2d Dept 2008]). Similarly, Dr. Jinghui Xie failed to list measurements of limitations (see Grasso, 79 N.Y.2d 813).
Plaintiffs also submitted treatment records for Trina totaling 149 pages (NYSCEF Doc Nos. 43). Trina's treatment records consisted of reports of an initial comprehension exam on May 7, 2019 and follow-up examinations July 3, 2019 and October 9, 2019 with Caroline Boubert, P.A.; physical therapy initial and follow-up evaluations and referral letters; prescription order forms; and examinations by chiropractor Jordan Nixia, D.C. on May 23, 2019; June 3, 2019; June 17, 2019; June 12, 2019; July 12, 2019; July 18, 2019; August 19, 2019; and September 11, 2019, in addition to progress reports. Limitations discussed in the documents are conclusory as there are no mentions of using a goniometer (see Gersbeck, 176 A.D.3d 684; Alvarez, 24 N.Y.3d 1191). While the aforementioned records are unsworn, they are referenced in Dr. Scarpinato's IME report for Trina and are therefore admissible (see Djetoumani, 50 A.D.3d 944; NYSCEF Doc No. 30).
Plaintiffs also submitted treatment records for Alejandro totaling 134 pages (NYSCEF Doc No. 44). Alejandro's treatment records consisted of reports of an initial comprehension exam on May 7. 2019 and follow-up examinations May 28, 2019 and October 1, 2019 with Caroline Boubert, P.A.; physical therapy initial and follow-up examinations and referral letters; electrodiagnostic reports on May 15, 2019; prescription orders; and examinations by chiropractor Jordan Nixia, D.C. on May 7, 2019 and October 1, 2019 (NYSCEF Doc No. 44). Limitations noted are conclusory as there is no mention of use of a goniometer (see Gersbeck, 176 A.D.3d 684; Alvarez, 24 N.Y.3d 1191). While the records are unsworn, they are referenced in Dr. Scarpinato's IME Report for Trina and are thus admissible (see Djetoumani, 50 A.D.3d 944; NYSCEF Doc No. 30).
B. Further Discussion re Plaintiff's Evidence
This Court finds that Dr. Oganesov's reports lacked probative value for the reasons set forth hereinabove. However, if they are considered probative, they failed to directly rebut Drs. Scarpinato's and Eisenstadt's findings of degenerative conditions and instead contained the following conclusory statement: "The [injuries suffered from are] directly and casually related to the injuries sustained in the automobile accident occurring on April 27, 2019" (see Lemieux, 39 N.Y.3d 1108; Barnes v Paukar, 215 A.D.3d 615 [2d 2023]; NYSCEF Doc Nos. 37-38).
This is particularly notable due to the recent case law placing the burden on plaintiffs to directly rebut a defendant's medical expert's finding of degenerative conditions. Cases regarding this have become especially common in the First Department where experts' use of the term "degenerative" to describe causality has become prevalent. In three-to-two decisions that ensued, the dissenting justices have vigorously disagreed with the majority finding that summary judgment is correctly awarded to defendants when plaintiffs do not meet this burden, pointing to discrepancies in medical reports of opposing sides as an issue of fact. The Court of Appeals has consistently upheld the First Department's majority opinions in this area of motor vehicle accident serious injury law, utilizing its alternative review procedures set forth at 22 NYCRR 500.11. (See Franklin v Gareyua, 29 N.Y.3d 925 [2017], affg 136 A.D.3d 464 [1st Dept 2016]; Rivera v Fernandez & Ulloa Auto Group, 25 N.Y.3d 1222 [2015], affg 123 A.D.3d 509 [1st Dept 2014]; Alvarez, 24 N.Y.3d 1191; see also Lemieux, 39 N.Y.3d 1108, affg 209 A.D.3d 1100 [3d Dept dissent referring to eggshell plaintiff rule].
Although the Second Department did not experience the same trend of split decisions in motor vehicle accident serious injury law regarding degenerative conditions, its recent case law is in accord with the Court of Appeals' (see e.g. Angulo v Yogi Trans Corp., ___ A.D.3d ___, 2023 NY Slip Op 03899 [July 26, 2023]; Tamar v Allstate Dismantling Corp., ___ A.D.3d ___, 2023 NY Slip Op 03721 [July 5, 2023]; Merone v Five Towns Review, Corp., 215 A.D.3d 951 [2d Dept 2023]; Barnes, 215 A.D.3d 615).
Such precedents have only further made stricter a plaintiff's means of refuting degenerative condition evidence, finding that the plaintiff's medical expert must rebut with objective medical evidence (see Perl v Meher, 18 N.Y.3d 208 [2012]; Lemieux, 39 N.Y.3d 1108). This Court is constrained to follow precedent set by the Court of Appeals as it is applicable statewide - even when the decisions are issued under its alternative review procedures set forth at 22 NYCRR 500.11.
Conclusory statements, such as those utilized by Dr. Oganesov in describing causality, are therefore insufficient to properly rebut detailed degenerative-condition findings by Defendants' radiologist, Dr. Eisenstadt (see Franklin, 29 N.Y.3d 925; Lemieux, 39 N.Y.3d 1108; Rivera, 25 N.Y.3d 1222; Alvarez, 24 N.Y.3d 1191).
Analyzing this alternatively, Plaintiffs' expert, Dr. Apple, elaborated on why Trina's injuries were causally related to the accident but his explanation falls short of meeting the three prongs of the Jilani v Palmer standard. In Jilani, the Court found that the plaintiff's medical expert sufficiently rebutted the defendant's prima facie showing of preexisting degenerative changes by offering (a) Plaintiff's statement of no prior injuries, (b) his exam, and (c) a review of MRI films, electro-diagnostic studies, Plaintiff's medical history, and Plaintiff's medical records (see Jilani v Palmer, 83 A.D.3d 786 [2d Dept 2011]). While Dr. Apple referenced Trina's statement of no prior injuries in his examination, he failed to analyze previous medical history or MRI films (id.). Even if arguendo Dr. Apple's reports successfully disputed degenerative findings, neither he nor Dr. Oganesov mentioned use of either a goniometer in measuring range of motion and thereby failed to list objective ranges of motion (see Gersbeck, 176 A.D.3d 684; NYSCEF Doc No. 39), which denudes his reports of probative value.
Plaintiffs further offered insufficient evidence on the serious injury threshold to rebut Defendants' prima facie case. Medical records presented in support of permanent loss failed to show "complete and total loss of an organ, function, or system" (see Oberly, 96 N.Y.2d 295). Likewise, Dr. Oganesov's reports contained no probative evidence regarding the significant limitation category as no goniometer was used to measure range of motion (see Gersbeck, 176 A.D.3d 684).
In terms of the 90/180 claim, Trina missed at most six days of work and likewise there is no evidence that Alejandro missed any significant time from work. This is insufficient for Plaintiffs to meet the minimum time requirements of this category. Furthermore, Plaintiffs' claim that household chores and extracurricular activities were curtailed by the alleged injuries is not corroborated by any medical experts. (See Jones v Sharpe, 63 N.Y.2d 645, affd for reasons at App Div 99 A.D.2d 859 [3d Dept 1984]; Licari, 57 N.Y.2d 230; Atamian v Mintz, 216 A.D.2d 430 [2d Dept 1995]; Balshan, 206 A.D.2d 747). Although Plaintiffs argue Dr. Scarpinato did not examine them within 180 days following the accident and therefore cannot properly judge their conditions for a 90/180 claim, one can still rely on plaintiffs' deposition testimony regarding this time period (see Perl, 18 N.Y.3d 208; Tinyanoff v Kuna, 98 A.D.3d 501 [2d Dept 2021]; Heesook Choi v Mendez, 161 A.D.3d 1054 [2d Dept 2018]; Knox v Lennihan, 65 A.D.3d 615 [2d Dept 2009]).
To the extent Dr. Oganesov opined that Plaintiffs were prevented from performing daily activities for no less than 90/180 days following the accident, he did not identify the activities, and his opinions are conclusory and tailor made (see Gaddy, 79 N.Y.2d 955; Lopez v Senatore, 65 N.Y.2d 1017 [1985]; Toure, 98 N.Y.2d 345; Kenna v Trappen, 294 A.D.2d 405 [2d Dept 2002]; Calucci v Baker, 299 A.D.2d 897 [4th Dept 2002]). At best his reports state that Plaintiffs had "difficulty with everyday basic activities and household chores, such as walking, running, sitting or standing for too long" (NYSCEF Doc No. 37 at 5; NYSCEF Doc No. 38 at 6 [identical language in both reports]). Difficulty does not constitute "prevented" (see Lanzarone, 80 A.D.3d 667; Lauretta v County of Suffolk, 273 A.D.2d 204 [2d Dept 2000]; Balshan, 206 A.D.2d 747).
VI. Conclusion
On this motion for summary judgment, Defendants made out their prima facie case that Plaintiffs' alleged injuries were not serious as defined in Insurance Law §5102 (d), as required by Insurance Law §5104 (a). Further, to the extent Plaintiffs complained of certain injuries, Defendant's established a lack of proximate causation. Plaintiffs' evidence submitted in opposition to the motion failed to adequately rebut Defendants' prima facie case with admissible evidence. There are no material issues of fact regarding the asserted threshold categories and the aforesaid issue of proximate causation.
More specifically, Plaintiffs failed to demonstrate an issue of fact as to their complained of conditions meeting the asserted categories of serious injury in their bill of particulars as Dr. Oganesov's and Dr. Apple's post-accident treatment examination reports lacked objective measurements and Defendants' lack-of-causality defense of pre-existing degenerative conditions went undisputed.
Defendants are entitled to judgment dismissing Plaintiffs' complaint as a matter of law on the basis of a failure to maintain an action for serious injuries arising out of negligence in the use of a motor vehicle.
Accordingly, IT IS HEREBY ORDERED that Defendants' motion for summary judgment is GRANTED. The Clerk is directed to enter judgment dismissing the complaint.