Opinion
E2019002903
04-13-2021
Alexis GONZALEZ and Joanna Ferreira, Plaintiffs, v. Richard L. MCCARVER, Falls of Neuse Management, LLC, Single Source, Inc., and National Coatings & Supplies, Inc., Defendants.
In this personal injury action plaintiff Alexis Gonzalez alleges neck and back injuries arising out of a two-vehicle motor vehicle accident on August 17, 2017 when he was "rear-ended" by the defendant while travelling on West Ridge Road in the Town of Greece, County of Monroe.
Co-plaintiff Joanne Ferreira is Alexis Gonzalez’ wife and has a derivative action for loss of services. The Amended Affidavit of Ferreira, submitted in support of the plaintiffs’ motion, states that the plaintiffs were married in July 2018, which is approximately eleven (11) months after the accident. Medical records also indicate that Gonzalez was not married at the time of the accident.
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Plaintiffs now move for partial summary judgment, arguing that there is no factual dispute that 1) defendant Ricard L. McCarver was negligent in his operation of his motor vehicle, and 2) that plaintiff Alexis Gonzalez sustained a "serious injury" as that term is defined at Insurance Law § 5102(d).
Defendants oppose the motion, arguing that there is at least a question of fact as to whether defendant McCarver was negligent, and cross-move for summary judgment dismissing the complaint on the ground that the plaintiff Gonzalez's history of medical treatment does not meet the threshold for "serious injury."
For the reasons below, the defendants’ motion to dismiss is Granted.
Negligence of the Defendant
The parties agree that plaintiff Gonzalez and defendant McCarver were travelling west on W. Ridge Road, the defendant behind the plaintiff, and that the defendant struck the plaintiff in the rear. Plaintiff Gonzalez testified that he had stopped for a yellow light at the intersection of W. Ridge Road and Buckman Road, and that defendant McCarver failed to stop and struck him.
Defendant McCarver's testimony, although at times conflicting, is that both vehicles had passed through that intersection on a green light, and were entering onto an on-ramp of Interstate 390. McCarver observed that traffic on the ramp began to slow and stop, that the vehicle in front of him was slowing down, and that McCarver "braked slower than he did and ran into the back of his car."
Defendant asserts that the plaintiff's vehicle was not stopped, but rather, was "slowing down" when he struck it.
It is well-settled that "A rear-end collision with a vehicle that is stopped or is in the process of stopping "creates a prima facie case of liability with respect to the [driver] of the rearmost vehicle, thereby requiring that [driver] to rebut the inference of negligence by providing a nonnegligent explanation for the collision" ( Rosario v Swiatkowski , 101 AD3d 1609, 1609 [4th Dept 2012] ; Chepel v. Meyers, 306 AD2d 235, 237 [2d Dept 2003] ).
Here, defendants have offered no non-negligent explanation other than that there is a difference as to whether the accident occurred at the intersection or on the "on ramp," a difference without significance. Either way, plaintiff Gonzalez was safely stopped or coming to stop, and defendant McCarver, by his own admission, failed to stop in time to avoid the collision. There is no testimony or evidence that the plaintiff came to a stop abruptly or suddenly or "slammed" on his brakes, a scenario which often provides the defendant for a non-negligent explanation for a collision (see e.g. Rosario v Swiatowski,101 AD3d 1609, 1609 [4th Dept 2012] ; Brooks v High St. Professional Bldg., Inc. , 34 AD3d 1265, 1267 [4th Dept 2006] ).
Accordingly, the plaintiffs’ motion for partial summary judgment on the issue of negligence alone is granted.
Serious injury
Defendants move for summary judgment on the issue of whether plaintiff Gonzalez sustained either a "significant limitation of use," and/or a "permanent consequential limitation," which are the two categories under the Insurance Law definition of "serious injury" the plaintiffs are claiming were caused by the motor vehicle accident (see, Affidavit of R. Colin Campbell, Esq., counsel for the plaintiff, at paragraph 7, sworn to on October 6, 2020).
In establishing their entitlement to judgment as a matter of law ("As proponents of the motion for summary judgment, defendants bore the initial burden of establishing, through competent medical evidence, that plaintiff did not sustain a serious injury caused by the accident," Lavrinovich v Conrad , 180 AD3d 1265, 1267 [3d Dept 2020] ; see also Hedgecock v Pedro , 93 AD3d 1250, 1251 [4th Dept 2012] ), the defendants rely entirely on the plaintiff's own treatment records, never having asked the plaintiff to submit to an Independent Medical Examination.
Those records show that plaintiff Gonzalez presented to Rochester General Hospital immediately after the accident where he complained of "neck pain." The records specifically note "no back pain" and "negative for back pain," and a normal range of motion. A CT scan showed no fracture or subluxation and normal alignment of the cervical spine. He was discharged.
Two months went by before Gonzalez was seen again, on October 30, 2017, at Unity Internal Medicine, at which time he complained of back pain, but not neck pain or stiffness. While pain with a straight leg raise test at 45 degrees was noted, no numeric percentage of the restriction of the range of motion was indicated.
According to the defendants, Gonzalez sought no further treatment for another 16 months, at which time he treated with a chiropractor in Florida, complaining of increased neck and back pain. Gonzalez made multiple visits, then was referred to an orthopedic group there. He was sent for an MRI, which revealed multiple disc bulges and herniations throughout his cervical, thoracic and lumbar spine, and was given a diagnosis of cervical sprain and strain with herniations at C5/6 and C6/7; thoracic sprain /strain with herniation at T4/5, T7/8 and T9/10; and lumbar sprain and strain with herniation at L5/S1. Gonzalez ultimately underwent a "microdiscectomy" of right-sided L5-S1 and a "facet rhizotomies of L3-L4, L4-L5, L5-S1."
Defendants’ argument that the plaintiff did not sustain a "serious injury" is predicated on 1) a gap in treatment, and 2) an absence of proof of limitations rising to the level of a "significant" limitation or "consequential" limitation.
Gap in treatment
It is well settled that an unexplained gap in treatment may be fatal to a plaintiff's serious injury claim, and accordingly necessitate dismissal of a plaintiff's complaint ( Pommells v Perez , 4 NY3d at 574, see also Smyth v McDonald , 101 AD3d 1789, 1790 [4th Dept 2012] [31 month unexplained gap in treatment]; (see McCarthy v Bellamy , 39 AD3d 1166, 1167, [4th Dept 2007] [15 month unexplained gap in treatment]; citing to Black v Regalado, 36 AD3d 437 [1st Dept 2007] ; Park v Champagne, 34 AD3d 274, 276 [1st Dept 2006] ; Caracci v Miller, 34 AD3d 515 [2d Dept 2006] ; see generally Pommells, 4 NY3d at 574 ).
Here, plaintiff offers no explanation for his delay in seeking further treatment. He attempts to shorten the gap by pointing to records from a visit he made to Unity Internal Medicine in February 2018 and noting that they show that he was still being prescribed muscle relaxants and pain medications. However, those notes also indicate he was "negative for back pain, neck pain, and stiffness."
Plaintiff asserts, as an explanation as to why he did not seek treatment, that during the period of non-treatment he was taking medication and doing therapy at home. There is no authority for the proposition that home health care and self-administered conservative treatments can provide the explanation for failure to see a health-care provider for what are claimed to be "significant" and "consequential" limitations. In any event, his explanation appears disingenuous, because during that time, the plaintiff moved to Florida and established a painting company. Before plaintiff returned for treatment he had completed at least "7 or 8" exterior and interior painting jobs, and his labor included painting, completing flooring jobs, power washing, prep work, and working on a ladder.
Nor does his orthopedic surgeon offer any explanation (see Phillips v Zilinsky , 39 AD3d 728, 729 (2d Dept 2007) ["neither the plaintiff nor her treating orthopedic surgeon adequately explained the 15-month gap between the date when the plaintiff, by her own admission in her deposition testimony, stopped treatment, and the date on which she was examined ..."]).
As the plaintiff has failed to offer any "reasonable explanation" for the gap in treatment, that gap is fatal to the plaintiff's claims.
Accordingly, the defendants’ motion is granted, and the complaint is dismissed.
Having dismissed the complaint on the basis that a gap in treatment severed any causative link of the motor vehicle accident to the plaintiff's later surgery and complaints of limitations, the court declines to decide, as moot, whether the limitations described by the plaintiff — that he is limited to doing handyman work, cannot play basketball, weight-lift and mow the lawn - constitute "significant" limitations and/or "consequential" limitations.
It also declines to consider plaintiffs’ argument that evidence that Gonzalez underwent back surgery eliminates, as a matter of law, any issue of fact as to whether the plaintiff sustained a "significant" limitation and/or a "permanent consequential limitation." The court notes however that plaintiffs in support of their argument cite to Karamanos v. Bateman , 11 AD3d 926 (4th Dept 2004), where the court set aside a jury verdict finding that the plaintiff, who had "fusion surgery" in his lumbar spine, had not sustained a "significant limitation." Here, the plaintiff had a "microdiscectomy," which is substantially different and less invasive than a fusion surgery, by which a plate is inserted to hold vertebra together and which almost by definition limits one's range of motion (see Lindquist v Knowledge Systems & Research, Inc. , 295 AD2d 889 [4th Dept 2002] ; see also Fortune v Sacks and Sacks , 272 AD2d 277, 277-78 [1st Dept 2000]). Also, "[p] roof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury" ( Cummings v Jiayan Gu , 42 AD3d 920, 922 [4th Dept 2007] ; quoting Pommells , 4 NY3d at 574 ).
In light of the foregoing, it is hereby
ORDERED that the plaintiff's motion for partial summary judgment on the issue of negligence is GRANTED, and the plaintiff's motion for partial summary judgment on the issue of serious injury is DENIED; and it is further
ORDERED that the defendants’ cross-motion for summary judgment on the issue of serious injury is GRANTED; and it is further
ORDERED that the plaintiffs’ Complaint is DISMISSED; and it is further
ORDERED that any additional relief requested in the parties’ respective motions, but not specifically addressed herein, is DENIED.