Opinion
No. 2200–11.
2013-01-16
Joann R. GAUDIO, Plaintiff, v. Darlene A. STARING and Eric G. Staring, Defendants. Joann R. Gaudio, Plaintiff, Julian Mader, Defendant. Joann R. Gaudio, Plaintiff, v. Julian Mader, Defendant.
Ackerman, Wachs and Finton, P.C., (F. Stanton Ackerman, Esq., of Counsel), Albany, Attorneys for Plaintiff. Law Offices of Theresa J. Puleo, (Christian Warhola, Esq., of Counsel), Albany, Attorneys for Defendant Mader.
Ackerman, Wachs and Finton, P.C., (F. Stanton Ackerman, Esq., of Counsel), Albany, Attorneys for Plaintiff. Law Offices of Theresa J. Puleo, (Christian Warhola, Esq., of Counsel), Albany, Attorneys for Defendant Mader.
MICHAEL C. LYNCH, J.
On September 1, 2009, plaintiff was involved in an automobile accident, and allegedly sustained injuries to her neck, back and left wrist (action no. 1). On October 27, 2009, plaintiff was involved in a second automobile accident (action no. 2). By Decision and Order (Lynch, J.) dated September 19, 2012, the Court ordered the two actions joined for trial, noting that “plaintiff maintains she sustained an injury to her left wrist in the first accident, and further injured the same wrist in the second accident”. Notably, each accident involved a rear end collision, with each defendant conceding liability for causing the accident.
By Notice of Motion returnable October 19, 2012, defendant in action no. 2 seeks an order of summary judgment dismissing the complaint on the grounds plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102[d]. Plaintiff has opposed the application and cross moved for an award of summary judgment in her favor as to the serious injury threshold question, and sanctions. In support of his motion, defendant includes the affirmed report of Dr. Harvey L. Siegel, an orthopaedic surgeon who evaluated the plaintiff on June 30, 2012 with regard to the second accident (Exhibit “2”). After providing a detailed review of plaintiff's medical records, Dr. Siegel opines that plaintiff did not injure her left wrist in any way in the October 27, 2009 accident, and that her treatment, including surgeries to her left wrist was not causally related to the October 27, 2009 accident. In particular, Dr. Siegel points out that the November 2, 2009 office note of Dr. Khuri, plaintiff's treating orthopaedic surgeon, indicates that plaintiff injured her neck in the second accident “but she did not hurt her wrist” (see Exhibit “Q”, 11/2/09 note). Dr. Siegel further opined that plaintiff's complaints of neck and back pain from the October 27, 2009 accident, involved cervical and lumbracral sprain/strains, superimposed on the continuing injuries sustained in the September 1, 2009 accident, that have since resolved. In the Court's view, through Dr. Siegel's affirmed report, defendant established a prima facie basis for an award of summary judgment. As such, it was incumbent upon plaintiff to come forward with competent medical evidence to sustain her serious injury claim (Hildenbrand v. Chin, 52 AD3d 1164, 1165 [2008] ).
The focus of plaintiff's opposition and cross motion is on her left wrist injury, which she contends was aggravated in the second accident.
Notably, in responding plaintiff speaks only to the left wrist injury, and makes no assertion that a serious injury claim exists against defendant Mader with respect to her back and neck.
As a baseline, it is important to recognize that an October 5, 2009 MRI arthrogram of plaintiff's left wrist showed “thickening of the scapholunate intercarpal ligament and mild widening of the scapholunate interval compatible with a sprain or partial tear. No full thickness ligament tear identified” (see Exhibit “P”). On April 6, 2010, Dr. Khuri performed a left wrist athroscopy (see Exhibit “Q” at 4/6/10 note). Thereafter, Dr. Goldstock, an orthopaedic surgeon, performed a left wrist fusion in April, 2011.
In opposition, plaintiff has submitted an unsworn letter from Dr. Goldstock dated July 22, 2011 (Exhibit “A”); an unsworn, unsigned letter from Dr. Goldstock based on a September 25, 2012 evaluation (Exhibit “B”) and a copy of a June 12, 2012 affirmed report of Dr. Louis Benton, an orthopaedic surgeon, who performed an independent orthopaedic examination of plaintiff on June 12, 2012 in relation to action no. 1 (Exhibit “C”). Since the two letters from Dr. Goldstock are unsworn, neither constitutes evidentiary proof in admissible form (see CPLR 2106; Grasso v. Angerami, 79 N.Y.2d 813;Sauter v. Calabretta, 90 AD3d 1702, 1704;Conti v. Valeriano, 259 A.D.2d 655).
The Court notes that by letter dated October 30, 2012, plaintiff has attempted to remedy this evidentiary flaw by submitting what purports to be a certified copy of the 9/25/12 letter of Dr. Goldstock. Interestingly enough, this copy includes Dr. Goldstock's signature. Beyond the fact this submission comes almost two weeks after the return date on the motion, Dr. Goldstock's letter report, which includes an opinion as to causation, is not admissible as a business record (see Daniels v. Simon, 99AD3d 658, 660; Matter of Bronstein–Becher v. Becher, 25 AD3d 796, 797;Wilson v. Bodian, 130 A.D.2d 221, 229–231). As such, the “certification” of this letter does not render it admissible here.
As for Dr. Benton's affirmed report, defendant maintains that he has offered no opinion as to whether the second accident caused an injury to plaintiff's left wrist. Importantly, the submissions show that plaintiff had a second MRI arthrogram of her left wrist on November 5, 2010. The MRI report was included with the records reviewed by Dr. Benton (see Cross Motion Exhibit “C”, p. 4), and by Dr. Siegel (Exhibit “Z” at p. 17). In his report, Dr. Siegel describes the radiologist's impression as follows: “There is a tear of the membranous portion of the scapholunate interosseous ligament as described above”. Dr. Benton's report includes the following description: “Impression Tear of the membranous portion of scapholunate interosseous ligament”. Significantly, there is no indication that the MRI report characterizes the degree of the tear. For his part, Dr. Siegel merely observes that “The study was not compared with any prior studies” (see Exhibit “Z” at p. 17).
Plaintiff maintains that Dr. Benton determined that the second MRI revealed a full thickness tear, confirming that the second accident caused further injury to the left wrist (emphasis added). In support of the contention, plaintiff refers to the “History of Auto Accident” section of Dr. Benton's report, which includes the following comment:
“However, because the wrist was significantly more painful, she had another MRI arthrogram post second accident which revealed a full thickness tear, and she was told that there was some separation in the wrist bones, indicating that the second accident had contributed significantly to the injury of the left wrist” (Cross Motion Exhibit “C”, p. 2).
Taken literally, the quoted statement supports plaintiff's thesis. The difficulty, however, is that it is uncertain whether the quoted phrase represents plaintiff's history given to Dr. Benton, or his own interpretation. Notably, in the “opinion” section of his report, Dr. Benton merely states “the claimant is status post injury of September 1, 2009, with subsequent complaints of low back and cervical spine pain and left wrist pain” (Cross Motion Exhibit “C”). It is also noteworth that Dr. Benton concluded that “the claimant continues with pain at the left wrist. She has not fully recovered from her injuries, particularly at the left wrist (Cross Motion Exhibit “C” at p. 7).
Given the above uncertainty as to the nature of the tear depicted in the second MRI, and the failure of either party to present a medical comparison of the two studies, when considered in a light most favorable to the non-moving party ( Hildenbrand, Supra at 1166), the Court finds a question of fact remains as to whether the plaintiff sustained further injury to her left wrist in the second accident. For that reason, defendant's motion for an award of summary judgment is denied. Correspondingly, plaintiff's cross-motion is also denied. Her additional sanctions request is without merit. As a final note, given that the July 22, 2011 letter of Dr. Goldstock was not provided to defendant in response to an authorization served on Northeast Orthopaedics on August 18, 2011, plaintiff is directed to provide a new authorization to defendant within ten (10) days of the date of this decision.
This Memorandum constitutes the Decision and Order of the Court. This original Decision and Order is being returned to the attorneys for plaintiff. The original papers are being sent to the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.
SO ORDERED!
Papers Considered:
(1) Notice of Motion returnable October 19, 2012, with Affidavit of Christian
Warhola, Esq. dated September 24, 2012, with Exhibits “A”-“Z”;
(2) Plaintiff's Cross Motion returnable October 26, 2012 with Affirmation of F. Stanton Ackerman, Esq. dated October 10, 2012; Affidavit of Joann Gaudio dated October 10, 2012, with Exhibits “A”-“D”;
(3) Reply Affirmation of Christian Warhola, Esq. dated October 17, 2012;
(4) Sur-reply Affidavit of F. Stanton Ackerman, Esq. dated October 23, 2012;
(5) October 30, 2012 letter submission of Justin de Armas, Esq., with attachment from Northeast Orthopaedics; and
(6) Sur-reply Affidavit of Christian Warhola, Esq.