Opinion
014252/12
02-19-2015
Blanca Mendez Gomez, Plaintiff, v. Fredis R. Salmeron, JOSEPH W. SERPA and CAROLINA LEASING, INC., Defendants.
Sanford L. Pirotin, P.C. Attorneys for Plaintiff 323 Madison Street Westbury, NY 11590 (516) 333-2553 Nancy Isserlis, Esq. Attorneys for Defendant, Salmeron 36-01 43rd Avenue Long Island City, NY 11101 (718) 361-1514 Martyn, Toher, Martyn & Rossi Attorneys for Defendants, Serpa & Carolina Leasing 330 Old Country Road, Suite 211 Mineola, NY 11501 (516) 739-0000
Sanford L. Pirotin, P.C.
Attorneys for Plaintiff
323 Madison Street
Westbury, NY 11590
(516) 333-2553
Nancy Isserlis, Esq.
Attorneys for Defendant, Salmeron
36-01 43rd Avenue
Long Island City, NY 11101
(718) 361-1514
Martyn, Toher, Martyn & Rossi
Attorneys for Defendants, Serpa & Carolina Leasing
330 Old Country Road, Suite 211
Mineola, NY 11501
(516) 739-0000
Randy Sue Marber, J.
Upon the foregoing papers, the motion (Mot. Seq. 01) by the Defendants, JOSEPH W. SERPA (hereinafter "Serpa") and CAROLINA LEASING, INC., (hereinafter "Carolina") and the Cross-motion (Mot. Seq. 02) by the Defendant, FREDIS R. SALMERON (hereinafter "Salmeron"), seeking an order granting them summary judgment pursuant to CPLR § 3212 dismissing the complaint of the Plaintiff, BLANCA MENDEZ GOMEZ, on the grounds that the Plaintiff's injuries do not satisfy the "serious injury" threshold requirement of Insurance Law § 5102 (d), are determined as hereinafter provided.
Although a Stipulation of Discontinuance, discontinuing the action as against the Defendant, Salmeron, was dated November 21, 2014, it was not filed in the Office of the Nassau County Clerk until February 2, 2015. Also, as counsel for the parties inexplicably failed to notify the Court of this discontinuance, the Court drafted a decision prior to obtaining a copy of the Stipulation. Counsel for all parties are reminded of the requirements of 22 NYCRR § 202.28 and are admonished that due to their failure to comply with this Rule, the Court needlessly expended judicial resources. As a reminder to counsel, 22 NYCRR § 202.28 provides:
Discontinuance of Civil Actions and Notice to the Court
(a) In any discontinued action, the attorney for the defendant shall file a stipulation or statement of discontinuance with the county clerk within 20 days of such discontinuance. If the action has been noticed for judicial activity within 20 days of such discontinuance, the stipulation or statement shall be filed before the date scheduled for such activity.
(b) If an action is discontinued under paragraph (a), or wholly or partially settled by stipulation pursuant to CPLR 2104, or a motion has become wholly or partially moot, or a party has died or become a debtor in bankruptcy, the parties promptly shall notify the assigned judge in writing of such an event.
The instant Motion and Cross-motion arise out of a personal injury action, commenced by the Plaintiff in this Court on November 19, 2012 by the filing of a Summons and Verified Complaint in the Office of the Nassau County Clerk. The Plaintiff allegedly sustained injury resulting from a motor vehicle accident. The Defendant, Salmeron, also set forth cross-claims against the Defendants, Serpa and Carolina, alleging that they were primarily and actively and solely at fault for the Plaintiff's injuries.
The Plaintiff alleges, inter alia, the following injuries in her Verified Bill of Particulars: "C3-4 and C4-5 posterior disc bulges which impress upon the ventral surface of the thecal sac; Cervical radiculopathy; L5-S1 disc bulge and facet hypertrophy causing mild spinal stenosis and left foraminal narrowing; lumbar radiculopathy; Restricted Range of Motion-lumbar spine; Rotator cuff syndrome-left shoulder; Small amounts of fluid within subacromial and subdeltoid bursae-left shoulder; Impingement syndrome-left shoulder; Restricted Range of Motion-left shoulder; Internal derangement-left knee; Restricted Range of Motion-left knee.."
The Plaintiff claims a serious injury under Insurance Law § 5102 (d) in that her said personal injuries resulted in the permanent loss of use of a body organ, function, and/or system, and a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety (90) days during the one hundred eighty (180) days immediately following the accident.
On October 20, 2010, at about 10:30 a.m., the Plaintiff was a passenger in a taxi operated by the Defendant, Salmeron. While traveling westbound on Drexel Avenue, in the Village of Westbury, County of Nassau, the Defendant, Salmeron, attempted to make a left turn onto southbound Post Avenue, when the vehicle owned by the Defendant, Carolina, and operated by the Defendant, Serpa, made contact with the Defendant, Salmeron's vehicle.
The Plaintiff claimed that a "girl" who "came out of the" pharmacy located in the immediate vicinity of the accident site, and the Defendant, Salmeron, insisted that the Plaintiff exit the vehicle before the police arrived, over her objection. She claimed that the Defendant, Salmeron, stated a concern because of a prior accident he had about six months prior.
The Plaintiff was transported to Nassau University Medical Center by the Defendant, Salmeron's daughter, who appeared at the scene about one hour after the accident. The Plaintiff presented with complaints of pain in her knee, neck and shoulder. She was released about four hours later with pain medication and a muscle relaxer. She returned to the hospital the next day, as she was not "able to move". After six hours, she was released with a collar and a different prescription. The Plaintiff presented to a chiropractor the same day where her treatment regiment included, heating pads, injections, and acupuncture.
The Plaintiff treated with the chiropractor about four times a week for one year, then for six months, about "three or two" times a week. She stopped treatment because her "insurance didn't want to continue paying for it". (EBT of Plaintiff at p. 43, l. 19 attached to the Notice of Motion as Exhibit "E") The Plaintiff also underwent neurological testing, MRI examinations, and physical therapy. The Plaintiff ceased treatment at the "beginning of 2013". (Id. at p. 60, l. 24) At all relevant times herein, the Plaintiff was a homemaker, who was not employed outside of her home.
The Defendants argue that the Plaintiff has not established that she incurred a permanent loss of use of a body organ, member, function or system, and any such deficit in her range of motion is mild or minimal at best. As such, mild and/or minimal limitations do not meet the criteria of a serious injury. Further, they argue that the Plaintiff's cessation of treatment is fatal to her claim of serious injury. The Defendants rely upon the report of their expert, Isaac Cohen, M.D., F.A.A.O.S.
The Plaintiff contends that she meets the criteria under Insurance Law § 5102 (d), based on her limitations in her daily living activities. Further, the Plaintiff contends that the Defendants failed to disprove her claim under the 90/180 day category in that Dr. Cohen did not address that issue in his report.
Dr. Cohen examined the Plaintiff on April 25, 2014. He observed the Plaintiff to have full functional capacity of the musculoskeletal system and she indicated no evidence of functional sequelae. He concluded that her post-accident complaints were resolved, no further treatment was necessary, and no functional disability was present.
The Plaintiff attaches a copy of the record from the Plaintiff's October 21, 2011 visit to the Nassau University Medical Center Emergency Room. The report of the X-Ray of the Plaintiff's cervical spine indicated the following findings: "There is no evidence of acute fracture or subluxation. The cervical disc space are within normal limits. The vertebral body heights are maintained. Posterior margins of the cervical vertebral bodies are aligned. The prevertebral soft tissues are within normal limits". (See Exhibit "B" attached to the Plaintiff's Affirmation in Opposition)
The Plaintiff attaches the report of James Liguori, D.O., dated October 27, 2011, who examined the Plaintiff in neurological consultation on October 27, 2011. He indicated in his report that his impression of the Plaintiff injuries were: "Status post head trauma with a post concussion headache syndrome; cervical radiculopathy; status post bilateral shoulder trauma; thoracic derangement; and status post left knee trauma". (See Exhibit "D" attached to the Plaintiff's Affirmation in Opposition)
The Plaintiff attaches the reports of Sunil H. Butani, M.D., who examined the Plaintiff on several occasions from February 27, 2012 through November 16, 2012. (See Exhibit "E" attached to the Plaintiff's Affirmation in Opposition) He indicated in his report, dated November 16, 2012, that the Plaintiff suffered from "cervical and lumbar radiculopathy, internal derangement of the left knee and left rotator cuff syndrome." (Id.) In his report dated, August 25, 2012, Dr. Butani ruled out the internal derangement of the left knee. In his report dated, July 27, 2012, he indicated a "[s]lightly decreased range of motion of the cervical and lumbar spine", and full range of motion of the shoulder, but with "mild pain". The report, dated June 1, 2012, sets forth an impression of "[r]esolving cervical and lumbar spine radiculopathy.
The Plaintiff attaches her MRI reports from Action Open MRI, which include reports from November 3, 2011 through December 21, 2011. (See Exhibit "G" to the Plaintiff's Affirmation in Opposition) The report dated December 21, 2011, shows the results of an exam of the Plaintiff's lumbar spine and indicates an impression of disc bulge, facet hypertrophy with mild spinal stenosis and left foraminal narrowing. (Id.) The report dated December 1, 2011, shows the results of an exam of the Plaintiff's left shoulder and indicates an impression of "very small amounts of fluid within the subacromial and subdeltoid bursae which could reflect mild bursitis". (Id.) The report dated November 17, 2011, shows the results of an exam of the Plaintiff's cervical spine, which revealed C3-4 and C4-5; posterior disc bulges. (Id.) The MRI of the brain, performed on 11/3/11, indicated an "unremarkable contrast MRI of the brain". (Id.) (Emphasis added)
The Plaintiff also attaches the report, dated September 25, 2014, by Dr. Butani. (See Exhibit "F" to the Plaintiff's Affirmation in Opposition) According to the report, Dr. Butani assessed the Plaintiff as exhibiting a 50% restriction of rotation of the cervical spine, and 66% restriction of flexion of the lumbosacral spine, with 50% restriction of internal and external rotation of the left shoulder, and 30% restriction of flexion and abduction of the left shoulder. (Id.) Dr. Butani found that the Plaintiff has a permanent partial disability in regards to the neck, lower back, left knee, and shoulder. (Id.)
In a personal injury action, a summary judgment motion seeking to dismiss requires that a defendant establish a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). (Gaddy v. Eyler, 79 NY2d 955 [1992]) Upon such a showing, it becomes incumbent on the plaintiff to come forward with sufficient evidence in admissible form to demonstrate the existence of a question of fact on the issue. (Gaddy v. Eyler, supra) The court must then decide whether the plaintiff has established a prima facie case of sustaining serious injury. (Licari v. Elliot, 57 NY2d 230 [1983])
It is now well settled that when a defendant moves for summary judgment dismissing the complaint based on the plaintiff's failure to establish "serious injury" and relies on the findings of the defendant's own medical witnesses, those findings must be in admissible form, in order to make a prima facie showing of entitlement to judgment as a matter of law. (Pagano v. Kingsbury, 182 AD2d 268 [2d Dept. 1992]; see also, Miller v. Metropolitan Suburban Bus Auth., 186 AD2d 116 [2d Dept. 1992])
Insurance Law § 5102 (d) defines serious injury, in relevant part, to mean a personal injury which results in: "... 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."
Regarding the Plaintiff's claims of permanent loss of use of a body organ, member, function or system and of permanent consequential limitation of use of a body organ or member, the Defendants met their initial burden by submitting competent proof in admissible form showing that the Plaintiff's injuries did not fall within the statutory definition of serious injury by way of the Plaintiff's testimony and Dr. Cohen's independent and/or expert medical report.
Regarding the Plaintiff's claim under the 90/180 category of the New York Insurance Law, the Defendants rely on the Plaintiff's testimony and have submitted the same into evidence. Her own testimony indicates that the accident caused her to be confined to her bed for about a week. The Plaintiff, a homemaker, was not incapacitated for any extended period of time. The Plaintiff does not provide any other evidence to substantiate a claim under the 90/180 category of the New York Insurance Law.
As to the remaining criteria regarding the Plaintiff's claims of permanent loss of use of a body organ, member, function or system and permanent consequential limitation of use of a body organ or member, in addition to the medical evidence, the Plaintiff's own testimony evinces that she cannot: "jump around with her children; do any type of "heavy exercising"; "carry anything heavy", or go to supermarket by herself. She testified that she "needs help from other people". The foregoing does not support a permanent restriction of her daily life activities. It is noted that she does not claim a significant restriction and or loss of a body system or organ in her Bill of Particulars.
In light of the foregoing, the Defendants met their initial burden by submitting competent proof in admissible form showing that the Plaintiff's injuries did not fall within the statutory definition of serious injury. The burden now shifts to the Plaintiff to offer proof in admissible form sufficient to create a material issue of fact.
In opposition, the Plaintiff has not submitted evidence to support a serious injury claim under the 90/180 category. The medical reports and the other supporting papers are devoid of evidence supporting that the Plaintiff was restricted or confined to her residence and that she was unable to substantially perform her daily activities. (Gonzales v. Green, 24 AD3d 939 [3rd Dept. 2005])
To prevail on a 90/180 claim, a plaintiff must provide competent, objective medical evidence to support the alleged limitations on his daily activities. (Monk v. Dupuis, 287 AD2d 187, 191 [3rd Dept. 2001]) When construing the statutory definition of a 90/180 claim, the words "substantially all" should be construed to mean that the person has been prevented from performing his usual activities to a great extent rather than some slight curtailment." (Sands v. Stark, 299 AD2d 642 [2d Dept. 2002]) Generally, courts have been unwilling to find a "serious injury" under the 90/180-day limitation where the plaintiff's treating physician placed no restrictions on them or their activities. ( Gonzales v. Green, 24 AD3d 939 [3rd Dept. 2005]; Clements v. Lasher 15 AD3d 712 [3rd Dept. 2005])
As to the gap in treatment, the year and a half gap in treatment must be explained. Courts have applied the seminal case, Pommels v. Perez, 4 NY3d 566 (2005), in determining that a reasonable explanation must be concrete and substantiated by the record. An explanation that she ceased treatment because of a denial of further payment by her no-fault insurance must be supported by sufficient evidence. It is noted that the Plaintiff testified that she ceased treatment in the early part of 2013, (see Notice of Motion, Exhibit E., Gomez EBT, p. 53, l. 7-9, p. 60, l. 17-25), while her Affidavit stated that she treated with Dr. Butani until November 16, 2012, when no-fault refused to pay for any additional treatment. (See Affirmation in Opposition, Exhibit A, ¶17)
While some courts have accepted a plaintiff's statement in an affidavit as sufficient evidence to explain a gap of treatment due to discontinuation of no-fault benefits, (See Abdelaziz v. Fazel, 78 AD3d 1086 [2d Dept. 2010]), other courts considered such an affidavit with the submission of additional objective evidence. In Gomez v. Ford Motor Credit Co.,10 Misc 3d 900 (NY Sup 2005), in considering the sufficiency of an affidavit from a doctor who treated the plaintiff after the cessation of treatment, arising out of a claim that further treatment would be palliative, the court rationalized that similar scrutiny should be applied to the explanation that the gap or cessation of treatment occurred when no-fault benefits were discontinued. The court further noted that no additional evidence was provided, and at the very least, counsel for the plaintiff should have provided a letter from the insurance carrier as to when and why the carrier discontinued coverage. (Gomez v. Ford Motor Credit Co., supra, Peluso v. Janice Taxi Co., Inc., 77 AD3d 491 [1st Dept 2010])
The Court of Appeals in Ramkumar v. Grand Style Transp. Enters. Inc., 22 NY3d 905 (2013), also considered the denial of further no-fault benefits and the ensuing cessation of treatment, and found that the requirement of additional evidence to support a plaintiff's statement was an unwarranted expansion of the landmark case, Pommels v. Perez, supra. The court noted that while it would have been preferable for the plaintiff to submit an affidavit in opposition to summary judgment explaining why the no-fault insurer terminated his benefits and that he did not have medical insurance to pay for further treatment, the plaintiff satisfied the bare minimum required to raise an issue of fact regarding "some reasonable explanation" for the cessation of physical therapy.
However, in addition to the explanation for the cessation of treatment, the Ramkumar plaintiff's medical evidence indicated that the arthroscopic surgery, which was performed on the plaintiff's knee for a meniscal tear injury, was determined to be causally related to the car accident. In addition, the evidence set forth that the meniscus permanently lost its stability with onset of scar tissue, had loss of range of motion, and pain, which plaintiff would have for the rest of his life.
In light of the foregoing, although the instant Plaintiff's explanation in her deposition and in her affidavit would be sufficient under Ramkumar, the matter at bar is distinguishable in that the Ramkumar court accepted such a minimum explanation while considering the medical evidence and concluded that the plaintiff sufficiently raised an issue of fact that he sustained a serious injury. The instant record does not support the serious injury criteria. In some aspects, it undermines it.
In sum, this Court finds that the Plaintiff's minimum explanation does not overcome her insufficient medical evidence before this Court. This issue is particularly significant when the 2012 medical reports from the same treating physicians set forth that the Plaintiff indicated a [s]lightly decreased range of motion of the cervical and lumbar spine", and full range of motion of the shoulder, but with "mild pain", an impression of "[r]esolving cervical and lumbar spine radiculopathy, and that the left shoulder "gets better if the [plaintiff] does physical therapy". Yet, after the gap in treatment, the same treating physicians, in 2014, determined that the Plaintiff's range of motion as to the cervical and lumbosacral spine was 50% and was 30% as to the left shoulder.
Notwithstanding the foregoing, the mere existence of a bulging or herniated disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration. Taken together, the Plaintiff has not established that she is suffering from such physical limitations under the statutory criteria. (See Vidor v. Davila, 37 AD3d 826 [2d Dept. 2007]).
Finally, in order for the Plaintiff to sustain proof of permanency, she must demonstrate the existence of such injury through objective medical tests which demonstrate the duration and extent of the injuries alleged. (Orr v. Miner, 220 AD2d 567 [2d Dept. 1995]). However, the Plaintiff's treating physicians fail to provide specifics regarding such permanent limitation of a body part, member, or system, to support a claim of permanency. They instead provided a terse statement; "[t]he patient has permanent partial disability in regards to neck, lower back, left knee, and shoulder."
Further, the mere use of the word "permanent" by the Plaintiff's physicians is also insufficient to defeat summary judgment. Regarding "permanent limitation" of a body organ, member or system, the Plaintiff must demonstrate that she has sustained such permanent limitation. The word "permanent" can be sustained only with proof that the limitation is not "minor mild, or slight" but rather "consequential". (Gaddy v. Eyler, 79 NY2d 955 [1992]).
Based on the foregoing, the Plaintiff has not raised a triable issue of fact to defeat the Defendants' prima facie entitlement.
Accordingly, it is hereby
ORDERED, that the motion (Mot. Seq. 01) by the Defendants, Serpa and Carolina, and the Cross-motion (Mot. Seq. 02) by the Defendant, Salmeron, seeking an order granting them summary judgment pursuant to CPLR § 3212 dismissing the complaint of the Plaintiff on the grounds that the Plaintiff's injuries do not satisfy the "serious injury" threshold requirement of Insurance Law § 5102 (d), are GRANTED.
This decision constitutes the decision and order of the court.
DATED:Mineola, New York
February 19, 2015
________________________________
Hon. Randy Sue Marber, J.S.C.
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