Opinion
Index 718169/2018
12-07-2021
HONG SUK KIM, Plaintiff, v. PETER CAVAK, Defendant.
Unpublished Opinion
Motion Date: 9/20/2021
PRESENT: Donna-Marie E. Golia, JSC
DECISION & ORDER
Donna-Marie E. Golia, JSC.
The following electronically filed documents numbered EF28 to EF35 and EF4O to EF47 read on this motion by defendant for summary judgment pursuant to New York Civil Practice Law and Rules ("CPLR") 3212:
Papers Numbered
Notice of Motion, Affirmation and Exhibits, Memorandum of Law.................. EF28- EF35
Affirmation in Opposition, Exhibits, Affidavit of Service.......................... EF40 - EF46
Affirmation in Reply...................................................... EF47
Defendant Peter Cavak ("defendant") moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint on the ground that plaintiff failed to sustain a "serious injury" under New York Insurance Law ("NYIL") § 5102(d). Plaintiff Hong Suk Kim ("plaintiff') opposes the motion. Upon the papers submitted, defendant's motion is denied, as discussed more fully below.
Plaintiff commenced this action for personal injuries he sustained to his right ankle as a result of an alleged motor vehicle accident that occurred on October 17, 2018 when he was a pedestrian at Speedway Gas Station in Ozone Park in Queens, New York.
In his bill of particulars, plaintiff avers that he satisfies the following serious injury categories under NYIL § 5102(d): 1) permanent loss of use of a body organ, member, function or system, 2) permanent consequential limitation of use of a body organ or member, 3) significant limitation of use of a body function or system and 4) a medically determined injury or impairment of a nonpermanent nature, which prevents him from performing substantially all of the material acts, which constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the alleged occurrence ("90/180 category").
In his motion, defendant argues that plaintiff has failed to meet the serious injury threshold under NYIL § 5102(d). Specifically, defendant avers that there is no evidence that plaintiff sustained a permanent loss of use of a body organ, member, function or system as a result of the alleged accident since his examining physician, Dr. Arnold T. Berman ("Dr. Berman"), performed an independent medical examination of plaintiff on July 22, 2020 and opined that plaintiff did not sustain a permanent injury or disability as a result of the alleged accident.
Defendant also avers that plaintiff failed to sustain a serious injury under the permanent consequential and significant limitations categories of NYIL § 5102(d). In support of his argument, defendant annexes the medical report of Dr. Berman who conducted a range of motion test on plaintiff and found that plaintiff showed a normal range of motion in his knees, ankles and feet. Defendant also annexes the medical report of Dr. Stephen W. Lastig ("Dr. Lastig"), a radiologist who opined that there are no findings on plaintiffs MRIs that are causally related to the alleged accident.
Finally, defendant contends that plaintiff did not have any limitations in his daily activities following the alleged accident to qualify as a serious injury under the 90/180 category. Defendant also notes that plaintiff did not miss any time from work, but instead returned to work immediately after the alleged accident.
In opposition, plaintiff asserts that defendant's motion should be denied because Dr. Berman's report fails to indicate whether he used any objective testing to measure his range of motion. Plaintiff also avers that defendant's experts proffer conflicting diagnoses as to his right ankle injury and as to whether he sustained any injuries that are causally related to the alleged accident.
Additionally, plaintiff argues that defendant has failed to meet his prima facie burden with respect to the 90/180 category. Specifically, plaintiff avers that defendants experts failed to render any opinion regarding the effect(s) of his injuries during the 180-day period immediately following the alleged accident. By contrast, however, plaintiff contends that his daily life has been altered due to the injuries he sustained from the alleged accident.
In support of his motion, plaintiff submits the affirmation of his treating physician, Dr. Thomas A. Scilaris ("Dr. Scilaris") who examined him on November 5, 2018 and June 24, 2021 and determined that he sustained a permanent consequential limitation and a significant limitation of use to his right ankle. Plaintiff further notes that Dr. Scilaris attests that the injuries to his right ankle are solely related to the October 17, 2018 accident and not to any pre-existing and/or degenerative conditions.
In reply, defendant asserts that plaintiff has submitted no evidence with respect to the permanent loss of use category. Similarly, defendant argues that plaintiffs claims under the permanent consequential and significant limitations categories must be dismissed because Dr. Berman's exam was an "essentially normal exam of [his] right ankle and foot" and Dr. Lastig's impression upon reviewing his right ankle MRI taken less than a month after the alleged accident was that there were no findings that were causally related to the alleged accident.
DISCUSSION
As a threshold matter in personal injury actions involving an automobile accident a plaintiff is "required to plead and prove that he or she sustained a 'serious injury' as defined in the No-Fault Law" (Zecca v Riccardelli. 293 A.D.2d 31, 33 [2d Dept 20021 citing Licari v Elliott. 57 N.Y.2d 230, 236 [1982]; CPLR 5102(d)).
Under NYIL § 5102(d), a 'serious injury" is defined as one which results in, inter alia, significant disfigurement, 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" (see Oberlv v Bangs Ambulance Inc.. 96 N.Y.2d 295, 298 [2d Dept 2001]).
As the "'legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries, '" courts "have required objective proof of a plaintiffs injury in order to satisfy the statutory serious injury threshold" (Toure v Avis Rent A Car Svs., Inc., 98 N.Y.2d 345, 350 [2002] [citations omitted]). Therefore, a "defendant has the initial burden of making a prima facie showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)" (Akhtar v Santos, 57 A.D.3d 593 [2d Dept 2008]; Farozes v Kamran. 22 A.D.3d 458, 458 [2d Dept 2005]). In doing so, where a defendant "relies solely on findings of the defendant's own medical witnesses, those findings must be in admissible form, i.e., affidavits or affirmations, and not unsworn reports, in order to make a 'prima facie showing of entitlement to judgment as a matter of law'" (Pagano v Kingsbury. 182 A.D.2d 268 270 [2d Dept 1992] [citation omitted]).
Once defendant has made a prima facie showing, the burden shifts to "the plaintiff to come forward with sufficient evidence that [he or] she sustained a serious injury" (Lisa v Pastor, 262 A.D.2d 368 [2d Dept 1999]). Similarly, "a plaintiffs opposition, to the extent that it relies solely on the findings of the plaintiffs own medical witnesses, must be in the form of affidavits or affirmations, unless an acceptable excuse for failure to comply with this requirement is furnished" (Paqano. 182 A.D.2d at 270, supra).
I. Permanent Loss of Use of Body Organ, Member, Function or System
Defendant argues that plaintiff has not suffered a permanent loss of any body part, member or system as a result of the alleged accident to qualify as a serious injury under NYIL § 5102(d).
As defendant is the movant, he "bears 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'" under the permanent loss of use category (see, Smith v Usman, No. 2019 WL 5423759, at *2 [NY Sup Ct Kings County Oct 18, 2019] citing Toure. 98 N.Y.2d at 352, supra). Upon making a prima facie showing, the burden shifts to plaintiff to submit evidence to establish "a total loss of use" of the injured body part (see, Qberly 96 N.Y.2d at 296, supra; Nesci v Romanelli. 74 A.D.3d 765, 766 [2d Dept 2010]; Alburv v OReilly, 70 A.D.3d 612 [2d Dept 2010]).
Here, defendant has failed to establish, prima facie, that plaintiff did not suffer a permanent loss of any part of his body. Indeed, while Dr. Berman states in his medical report that plaintiffs "[r]ight heel contusion, strain/sprain with Achilles tendinitis - plantar fasciitis on MRI" were "now resolved clinically with no objective residuals" and that there was "[n]o permanency or disability," Dr. Berman failed to set forth any objective test or tests that he performed to support his conclusion (see, Def. Exh. D; Giammanco v Valerio. 47 A.D.3d 674, 675 [2d Dept 2008]; Palladino v Antonelli. 40 A.D.3d 944, 945 [2d Dept 2007]). Indeed, in the absence of any indication that Dr. Berman performed any objective testing on plaintiffs right ankle, his determination that plaintiffs right ankle injuries were now "resolved" without any "permanency or disability" is speculative, conclusory and insufficient to satisfy defendant's prima facie burden (see, Lisa, 262 A.D.2d at 368, supra Besso v DeMaaaio. 56 A.D.3d 596, 597 [2d Dept 2008]).
As defendant has failed to establish his prima facie entitlement to judgment as a matter of law as to plaintiffs claim of a permanent loss of use of his right ankle, the Court "need not consider the sufficiency" of plaintiffs opposition papers (see, Giammanco. 47 A.D.3d at 675, supra). Accordingly, the branch of defendant's motion seeking summary judgment dismissing plaintiffs claim of a permanent loss of use of his right ankle under NYIL § 5102(d) is denied (see, Id.).
II. Permanent Consequential Limitation of Use of a Body Organ or Member
Defendant argues that plaintiffs injuries do not qualify as a serious injury under the permanent consequential limitation of use of a body organ or member category of NYIL § 5102(d).
Defendant, as the movant, "bears 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'" under the permanent consequential limitation category of NYIL § 5102(d) (see, Smith, No. 2019 WL 5423759, at *2, supra, citing Toure, 98 N.Y.2d at 352, supra). Once defendant has made a prima facie showing, the burden shifts to plaintiff to submit medical evidence containing "objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiffs present limitations to the normal function, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 A.D.3d 1027, 1029 [3d Dept 2003] citing Toure, 98 N.Y.2d at 353, supra).
Here defendant has failed to establish, prima facie, that plaintiff did not suffer a permanent consequential limitation of use to his right ankle under NYIL § 5102(d). While Dr Berman made specific range of motion findings as to plaintiffs right ankle and foot and compared them to the normal ranges per the American Medical Association's "Guides to the Evaluation of Permanent Impairment," Dr. Berman does not indicate whether such findings were based on any objective testing, such as using a goniometer or inclinometer to compare plaintiffs range of motion to the normal active range of motion (see, Def. Exh. E; Cho v Demelo. 175 A.D.3d 1235, 1237 [2d Dept 2019]; Grisales v City of New York, 85 A.D.3d 964, 965 [2d Dept 2011]). Indeed, in the absence of any showing that Dr. Berman performed any objective test or tests on plaintiff's right ankle to determine the extent or degree of physical [imitation and its duration to this body part, Dr. Berman's conclusions that plaintiffs "[r]ight heel contusion, strain/sprain with Achilles tendinitis -plantar fasciitis on MRI" were "now resolved clinically with no objective residuals," that there "were no objective findings to substantiate [plaintiffs] subjective complaints of right heel pain on examination" and that plaintiff "did not sustain any permanent injury or disability as a result of the [alleged] accident" are merely speculative and conclusory (see. Def. Exh. D; Lisa, 262 A.D.2d at 368, supra: Besso. 56 A.D.3d at 597, supra).
Similarly, Dr. Lastig's June 10, 2020 medical report in which he reviewed plaintiffs November 10, 2018 MRI of the right ankle is insufficient to establish defendant's prima facie showing that plaintiff did not suffer a permanent consequential limitation of use to his right ankle. Indeed, Dr. Lastig's impression and conclusions were not based on a recent examination or radiological study of plaintiffs right ankle, but rather, on an MRI taken in 2018, more than two years prior to defendant's motion for summary judgment (see, Def. Exh. E; see, e.g., Mauchv v Nieves. 19 A.D.3d 560, 561 [2d Dept 2005]; Bidetto v Williams, 276 A.D.2d 516, 517 [2d Dept 2000]; Kauderer v Penta. 261 A.D.2d 365, 366 [2d Dept 1999]; Evans v Mohammad. 243 A.D.2d 604, 605 [2d Dept 1997]).
As defendant has failed to establish, prima facie, that plaintiff did not sustain a permanent consequential limitation of use to his right ankle under NYIL § 5102(d), the Court need not determine whether plaintiffs opposition papers are sufficient to raise a triable issue of fact (see, Cho, 175 A.D.3d at 1237, supra; Kanq v Guillen. 151 A.D.3d 827, 828 [2d Dept 2017]; Mercado v Mendoza. 133 A.D.3d 833, 834 [2d Dept 2015])! Accordingly, the branch of defendant's motion seeking summary judgment dismissing plaintiffs claim of permanent consequential limitation of use to his right ankle under NYIL § 5102(d) is denied.
III. Significant Limitation of Use of a Body Function or System
Defendant argues that plaintiffs injuries do not qualify as a serious injury under the significant limitation of use of a body function or system category of NYIL § 5102(d).
Under the significant limitation category of NYIL § 5102(d), "any assessment of the 'significance' of a bodily limitation necessarily requires consideration not only of the extent or degree of limitation, but of its duration as well, notwithstanding the fact that Insurance Law § 5102(d) does not expressly set forth any temporal requirement for a significant limitation'" (Griffiths v Munoz. 98 A.D.3d 997 [2d Dept 2012]; Toure, 98 N.Y.2d at 353, supra).
Here, defendant has failed to establish, prima facie, that plaintiff did not suffer a significant limitation of use to his right ankle under NYIL § 5102(d). Indeed, Dr. Berman failed to indicate whether he perform any objective range of motion test or tests on plaintiffs right ankle to determine the extent or degree of physical limitations and its duration to this body part (see, Def. Exh. D; Cho, 175 A.D.3d at 1237, supra; Grisales. 85 A.D.3d at 965, supra). Rather, Dr. Berman speculates in a conclusory manner that plaintiffs "strain/sprain/contusion injury related to the incident on 10/17/18" were now "resolved with no clinical residuals" and that there "were no objective findings to substantiate [plaintiffs] subjective complaints of right heel pain on examination" (see Id., Holiday v United Steel Prod., Inc., 139 A.D.3d 804, 805 [2d Dept 2016]; Lisa, 262 A.D.2d at 368, supra). However, without indicating whether his range of motion findings were based on objective testing, such as using a goniometer or inclinometer to compare plaintiffs range of motion to the normal active range of motion, Dr. Berman's findings as to plaintiffs right ankle and foot lack probative value and are insufficient to satisfy defendant's prima facie burden (see, id., Bidetto, 276 A.D.2d at 517, supra).
Likewise, the medical report of Dr. Lastig is insufficient to establish defendant's prima facie showing that plaintiff did not suffer a significant limitation of use to his right ankle since Dr. Lastig's impression and opinions were not based on a recent examination or radiological study of plaintiffs right ankle (see, Def. Exh. E; see, e.g., Mauchv 19 A.D.3d at 561, supra; Bidetto, 276 A.D.2d at 517, supra; Kauderer. 261 A.D.2d at 366, supra).
As defendant has failed to establish, prima facie, that plaintiff did not sustain a significant limitation of use to his right ankle, the Court need not determine whether plaintiffs opposition papers are sufficient to raise a triable issue of fact (see Singleton v F & R Royal, Inc., 166 A.D.3d 837, 838 [2d Dept 2018]; Nunez v Alies. 162 A.D.3d 1058, 1059 [2d Dept 2018]). Accordingly, the branch of defendants motion seeking summary judgment dismissing plaintiffs claim of significant limitation of use to his right ankle under NYIL§ 5102(d) is denied.
IV. 90/180 Category
Defendant argues that plaintiff did not sustain a medically determined injury or impairment that prevented him from performing substantially all of the material acts constituting his customary daily activities during at least 90 of the first 180 days following the alleged accident.
As the movant, defendant "bears 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'" under the 90/180 category of NYIL § 5102(d) (see, Smith, No. 2019 WL 5423759, at *2, supra, citing Toure, 98 N.Y.2d at 352, supra). Once defendant has made a prima facie showing, the burden shifts to plaintiff to "establish that he or she 'has been curtailed from performing his [or her] usual activities to a great extent"' rather than "some slight curtailment" (Lanzarone v Goldman. 80 A.D.3d 667, 669 [2d Dept 2011]; DeFilippo v White. 101 A.D.2d 801, 803 [2d Dept 1984]).
Here, defendant has failed to establish, prima facie, that plaintiff did not suffer a serious injury under the 90/180 category of NYIL § 5102(d). Indeed, while defendant relies on plaintiffs deposition testimony to establish, prima facie, his entitlement to judgment as a matter of law under the 90/180 category, plaintiffs testimony did not address his usual and customary daily activities "during the specific relevant time frame" and "did not compare . . . [his] pre-accident and post-accident activities during that relevant time frame" (see, Hall v Staraot. 187 A.D.3d 996, 996 [2d Dept 2020]; Reid v Edwards-Grant, 186 A.D.3d 1741, 1742 [2d Dept 20201; Jong Cheol Yang v Gravline NY. Tours, 186 A.D.3d 1501, 1502 [2d Dept 2020]). Moreover, to the extent that Dr. Berman opines that plaintiffs "[r]ight heel contusion, strain/sprain with Achilles tendinitis - plantar fasciitis on MRI" were "resolved" with no "permanency or disability" and that plaintiff "can participate in all activities of daily living . . . [and] may work at his regular employment, full time without restrictions," Dr. Berman based his opinion on an examination performed on July 22, 2020, nearly two years after the alleged accident and did not relate his findings to the relevant period of time following the alleged accident (see, Def. Exh. D; Scinto, 57 A.D.3d at 647, supra; Daddio v Shapiro. 44 A.D.3d 699, 700 [2d Dept 2007]; Greenidge v Righton Limo, Inc., 43 A.D.3d 1109, 1110 [2d Dept 2007]).
Similarly, Dr. Lastig's medical report based on plaintiffs November 10, 2018 MRI of the right ankle is insufficient to establish defendant's prima facie showing under the 90/180 category of NYIL § 5102(d). Indeed, in his report, Dr. Lastig does not mention or proffer any opinion as to whether plaintiff sustain a medically determined injury or impairment that prevented him from performing substantially all of his activities of daily living or whether plaintiff has been curtailed from performing his usual activities to a great extent during the relevant period of time (see, Def. Exh. E; Lanzarone, 80 A.D.3d at 669, supra; DeFilippo, 101 A.D.2d at 803, supra).
As defendant has failed to establish his prima facie entitlement to judgment as a matter of law as to plaintiffs claim of a serious injury under the 90/180 category, the Court "need not consider the sufficiency" of plaintiffs opposition papers (see. Hall, 187 A.D.3d at 996, supra: Owens-Stephens v PTM Mqmt. Corp., 191 A.D.3d 691 [2d Dept 2021]; Ali v. Williams, 187 A.D.3d 1107 [2d Dept 2020]). Accordingly, the branch of defendant's motion seeking summary judgment dismissing plaintiffs claim of a serious injury under the 90/180 of NYIL § 5102(d) is denied (see, id.).
In sum, defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff failed to sustain a "serious injury" under NYIL § 5102(d) is denied in in its entirety.
This constitutes the Decision and Order of the Court.