Opinion
Index No. EF2019-534
08-09-2022
THELMA HARRELL, Plaintiff, v. LAURIE E. MALLEN, Defendant.
Plaintiff: Regina A. Fitzpatrick Attorney for Thema Harrell O'CONNOR & PARTNERS, PLLC Defendant(s): Alan B Brill Attorney for Laurie E. Mallen ALAN B. BRILL, P.C.
Unpublished Opinion
Plaintiff:
Regina A. Fitzpatrick
Attorney for Thema Harrell
O'CONNOR & PARTNERS, PLLC
Defendant(s):
Alan B Brill
Attorney for Laurie E. Mallen
ALAN B. BRILL, P.C.
Present: Hon. Kevin R. Bryant, J.S.C.
DECISION & ORDER ON MOTION
Kevin R. Bryant Judge:
On or about February 13, 2019, a summons and verified complaint were filed by Thelma Harrell (hereinafter referred to as "Plaintiffs") alleging, inter-alia, that she was involved in an automobile accident with Laurie E. Mallen (hereinafter referred to as "Defendant") wherein Defendant negligently struck Plaintiffs vehicle and that Plaintiff suffered serious injuries greater than basic economic loss as defined by §5104 of the Insurance Code of the State of New York; and
A verified answer having been submitted to the Court by Defendant; and
A Notice of Motion having been filed by Defendant on September 21, 2020, requesting, inter-alia, an Order granting Summary Judgment on the grounds that Plaintiff has not met the personal injury threshold; and
An affirmation in opposition and a reply having been filed.
NOW, it is hereby ORDERED, that the motion is denied.
In determining this motion, this Court has considered documents filed on NYSCEF as cited above as well as all other filings in this matter that have been electronically filed with the Court.
Findings of Fact
On November 1, 2017, the parties were involved in an automobile accident on State Route 44/55 in the Town of Lloyd, New York, County of Ulster. Specifically, the parties were both driving on the Mid-Hudson bridge when Defendant's vehicle struck Plaintiffs vehicle from behind. Plaintiffs Bill of Particulars outlines numerous injuries that she allegedly sustained as the result of the accident. Plaintiff is a retired corrections officer. She suffered work related injuries in 2010 and 2013. Both injuries were subject to worker's compensation claims.
NYSCEF doc. 39, para 4
Defendant argues in this motion for Summary Judgment that Plaintiff has not suffered serious injury as defined under Insurance Law §5102. Specifically, counsel argues that Plaintiff has failed to submit evidence of a serious physical injury, nor has she established that her injuries or symptoms are casually related to the accident at issue. Defendant further alleges that Plaintiff was already on medical leave prior to the accident and maintained that Plaintiffs injuries were minor and non-permanent. Defendant points to the Independent Medical Examinations prepared by John V. Ioia, M.D. and Loren E. Rosenthal, M.D. and argues that these reports establish that Plaintiffs injuries do not meet the applicable threshold set forth in §5102. Defendant further argues that Plaintiffs injuries were pre-existing conditions that were the result of her prior work-related accidents.
In opposition to the motion, Plaintiff argues that she has suffered significant injury and cites to the extensive list of injuries outlined in her Bill of Particulars. With regard to the conclusions of Dr. Ioia and Dr. Rosenthal that the injuries pre-date the accident, Plaintiff correctly notes that Dr. Rosenthal examined Plaintiff twenty-seven months after the accident, and he makes no assertions regarding the limitations on Plaintiffs daily activities for the first one-hundred days after the accident. As such, according to Plaintiff, "his report is insufficient to be relied upon by the defendant to meet his burden regarding the 90 out of 180-day category of Insurance Law §5101(d)". Plaintiff raises the same issues with regard to Dr. Ioia.
NYSEF doc. 37, para. 13, 14
Plaintiff also submitted an affirmation from David T. Stamer, M.D., a board-certified orthopedic surgeon who treated Plaintiff between November 2017 and February 2020. According to Dr. Stamer, when he initially examined Plaintiff, he diagnosed "right hand numbness in the radial 3-1/2 digits, loss of dexterity and complaints of wrist pain. She had pain in the forearm, elbow and shoulder. Upon my examination of the right wrist, I found thenar atrophy and decreased sensation to light touch along the radial 3-1/2 digits. There was decreased grip strength. There was positive Tinel's and positive Phalens sign". Dr. Stamer recommended right carpal tunnel release surgery to address Plaintiffs loss of dexterity, grip strength and restricted range of motion. According to Dr. Stamer, Plaintiffs severe limitations to the use of her right hand and arm "was casually related to the motor vehicle accident of November 1, 2017". Plaintiffs symptoms continued throughout the time she was treated by Dr. Stamer and "fifteen months out from the surgery, [she] continued to evidence disability to her right arm and back. Throughout [Plaintiffs] treatment she has been treated with physical therapy, bracing, and medications . . . [her]activities of daily living continued to be affected by the injuries she sustained in the collision of November 1, 2017" . Plaintiff also submitted her own affidavit wherein she described her injuries and her ongoing physical limitations.
NYSCEF doc. 38, para. 11, 12, 19
Summary Judgment
"A party moving for summary judgment must demonstrate that the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in the moving party's favor ... the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence to demonstrate the absence of any material issues of fact" Jacobsen v. N.Y.C. Health and Hospitals Corp., 22 N.Y.3d 824 (2014)). See also. P.R.B. v. State of New York, 201 A.D.3d 1237 (3rd Dept, 2022); Ferretti v. Village of Scotia, 200 A.D.3d 1243 (3rd Dept., 2021)). "To determine whether there are any factual issues, this Court must view the evidence in a light most favorable to the nonmoving party and give that party the benefit of every favorable inference" (McEleney v. Riverview Assets, 201 A.D.3d 1159 (3rd Dept, 2022)).
Internal citations, quotations and punctuation omitted in all quotations contained herein.
Recovery for personal injuries sustained in motor vehicle accidents is limited by the provisions of New York's No-Fault Law. As explained by the Court of Appeals in Oberly v. Bangs Ambulance Inc., 96 N.Y.2d 295 (2001) "[t]he No-Fault Law provides a plan for compensating victims of automobile accidents for their economic losses without regard to fault or negligence. An injured party may bring a plenary action in tort, however, to recover for non-economic loss, pain and suffering, but must show that he or she has suffered a serious injury within the meaning of the No-Fault Law". "[W]hether a limitation of use or function is 'significant' or 'consequential' relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Shea v. Ives. 137 A.D.3d 1404 (3rd Dept., 2016)). See also, Fillette v. Lundberg, 150 A.D.3d 1575 (3rd Dept., 2017)).
In support of the request for Summary Judgment, Defendant argues that Plaintiff has failed to submit evidence of a serious injury as defined under Insurance Law §5102. Specifically, counsel cites to the report of Dr. John V. Ioia who performed an orthopedic examination of Plaintiff and reviewed "all of her medical records, including but not limited to, radiological reports, physical therapy records, and hospital records". According to counsel, "Dr. Ioia opined that. . . this boils down to subjective complaints of neck and back, both shoulders, elbow, and wrist... and no evidence to support permanent or prolonged disability and no documentation to suggest issues directly related to this accident".
NYSCEF doc. 6, para. 15
para. 18
Counsel further cites to the Independent Medical Examination conducted by Loren E. Rosenthal, M.D. and the conclusions that "plaintiffs cervical and lumbar spinal changes were due to the plaintiffs previous falls in 2010 and 2013" and "[t]he neurological examination was completely within normal limits and plaintiff has the ability to return to her activities of daily living and work". Defendant argues that "Plaintiff has not shown significant disfigurement or fracture; a permanent loss of a body organ, member or function or system; permanent consequential limitation of a body organ or member; or a significant limitation of use of a body function or system". Defendant further argues that "plaintiff has not shown that the alleged injury constitutes a medically determined injury of a non-permanent nature which prevented the plaintiff from performing substantially all of the material acts which constituted her usual and customary daily activities for 90-out-of-the 180 days after this occurrence". As such, Defendant argues that they have met their burden of submitting a lack of a serious injury thereby shifting the burden to Plaintiff.
para. 24
para. 31
In response, Plaintiff initially argues that the motion is not "sufficiently complete" because Defendant has not submitted a copy of any of Plaintiff s medical records and instead relies on a report of an expert who examined Plaintiff twenty-seven months after the accident. Counsel further notes that while Dr. Rosenthal concludes that many of Plaintiff s injuries pre-exist the accident before the Court, he failed to review any of Plaintiff s pre-existing medical records and completely fails to address numerous injuries that are outlined in the Bill of Particulars. With regard to Dr. Ioia, counsel for Plaintiff argues that he failed to inquire regarding Plaintiffs activities during the first six months after the accident. Counsel further argues that Dr. Ioia himself found a significant reduction in Plaintiffs range of motion. Counsel raises similar objections to the findings and conclusions of Dr. Rosenthal. Finally, counsel argues that given issues related to the credibility of Defendant's witnesses and the reliability of their conclusions, there remains a significant issue of fact that can only be determined by a jury.
Counsel further argues that should this Court finds that Defendant's experts satisfied their initial burden on this Summary Judgment motion, that the findings of David T. Stamer, M.D. and Plaintiffs medical records create an issue of fact that precludes Summary Judgment. Notably, according to Dr. Stamer's affirmation, from November 2017 through February 2020, Plaintiff received treatment at his office for injuries sustained as the result of the accident before the Court. In his affidavit, Dr. Stamer outlines the treatment, injuries and limitations that Plaintiff sustained in detail, and he provided a copy of Plaintiff s medical records. The Court also received Plaintiffs own affidavit where she outlines the nature and extent of her injuries and provides information regarding her pre-existing conditions, she explains how these conditions were aggravated and she outlines the specific long-term impacts of the accident at issue.
It is the finding of this Court that under the circumstances, while Defendant has made a prima-facie showing of entitlement to judgment, Plaintiff has raised sufficient questions of fact in response to defeat the motion for Summary Judgment. The question of whether Plaintiffs injuries are pre-existing or related to the accident and the extent that these pre-existing conditions were aggravated by the accident remain in dispute. This is particularly true given that Dr. Ioia and Dr. Rosenthal did not review medical records that pre-dated the accident. As argued by Plaintiff, without reviewing these records, their conclusions regarding Plaintiffs pre-existing conditions are suspect. Similarly, the submissions in support of and in opposition to the motion do not resolve the nature and extent of the injuries and to what degree Plaintiffs overall range of motion and daily functioning have been impacted as the consequence of the accident. These issues must be further explored at trial, the parties must present evidence to support their respective positions, and these outstanding questions of fact must be put before a jury.
For the foregoing reasons, it is the finding of this Court that with regard to this motion, Plaintiff is entitled to every favorable inference, and she has presented sufficient evidence of questions of fact to defeat the motion for Summary Judgment. As such, the motion is denied.
This shall constitute the Decision and Order of the Court.
The signing of this Decision and Order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.