Opinion
Index No. 609451/2020 CAL. No. 202200764MV Mot. Seq. No. 003 MG; CASEDISPNYSCEF Doc. No. 91
10-03-2022
PAMELA C. LOSQUADRO, Plaintiff, v. DARIAN A. BRIZILL and VIDA A. BRIZILL, Defendants.
ZLOTOLOW & ASSOCIATES. P.C. Attorney for Plaintiff JAMES F. BUTLER & ASSOCIATES Attorney for Defendants
Unpublished Opinion
MOTION DATE 7/22/22
ADJ. DATE 7/26/22
ZLOTOLOW & ASSOCIATES. P.C.
Attorney for Plaintiff
JAMES F. BUTLER & ASSOCIATES
Attorney for Defendants
SHORT FORM ORDER
HON. MARTHA L. LUFT, A.J.S.C.
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motions/Order to Show Cause and supporting papers by defendants, dated June 8, 2022; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers by plaintiff, dated July 11, 2022; Replying Affidavits and supporting papers by defendants, dated July 18, 2022: Other _____; it is
ORDERED that the motion by defendants for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102 (d) is granted.
This is an action to recover damages for personal injuries sustained by plaintiff when her vehicle was rear-ended by a vehicle owned by defendant Vida Brizill and operated by defendant Darian Brizill. The accident allegedly occurred on October 10, 2019, on the eastbound Long Island Expressway, near Old Nichols Road in Islandia, New York. By her bill of particulars, plaintiff alleges that, as a result of the subject accident, she sustained serious injuries and conditions, including herniated discs and radiculopathy in the cervical region and sprains and strains in the left shoulder.
Defendants move for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102 (d). In support of their motion, defendants submit, inter alia, the pleadings, the bill of particulars, the affirmed medical report of Dr. Dorothy Scarpinato, and the transcript of plaintiffs deposition testimony.
As the party moving for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury'' within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Gonzalez v Krumholz, 192 A.D.3d 1086, 141 N.Y.S.3d 715 [2d Dept 2021]). The defendant may satisfy this burden by submitting the plaintiffs deposition testimony and the affirmed medical report of the defendant's own examining physician (see Ocasio v New York City Tr. Auth., 134 A.D.3d 789, 20 N.Y.S.3d 655 [2d Dept 2015]; Pamphile v Bastien, 61 A.D.3d 659, 877 N.Y.S.2d 137 [2d Dept 2009]).
Here, defendants made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) through the affirmed report of the moving defendants' examining physician (see Reyes-Mendez v City of New York, 192 A.D.3d 464, 139 N.Y.S.3d 818 [1st Dept 2021]; Wettstein v Tucker, 178 A.D.3d 1121, 112 N.Y.S.3d 557 [2d Dept 2019]). On June 4, 2021, approximately one year and eight months after the subject accident, the moving defendants' examining orthopedist, Dr. Dorothy Scarpinato, examined plaintiff and performed certain orthopedic and neurological tests, including the impingement sign. Dr. Scarpinato found that all the test results were negative or normal. Dr. Scarpinato performed range of motion testing on plaintiff s cervical region and left shoulder, using a goniometer to measure her joint movement. Dr. Scarpinato found that plaintiff exhibited normal joint function in her cervical region and left shoulder.
Further, at her deposition, plaintiff testified that following the accident, she did not miss any time from work. She testified that there is no activity that she is unable to perform because of the accident, although she has difficulty in cooking, lifting a laundry basket, and sitting and standing for a long period of time. Plaintiffs deposition testimony established that her injuries did not prevent her from performing substantially all of the material acts constituting her customary daily activities during at least 90 out of the first 180 days following the accident (see Narvaez-Reyes v Palomino, 186 A.D.3d 492, 126 N.Y.S.3d 390 [2d Dept 2020]; Toussaint v Zomah, 183 A.D.3d 657, 658, 121 N.Y.S.3d 615 [2d Dept 2020]; Knijnikov v Mushtaq, 35 A.D.3d 545, 827 N.Y.S.2d 198 [2d Dept 2006]).
Thus, defendants met their initial burden of establishing that plaintiff did not sustain a permanent consequential limitation of use of a body organ or member or significant limitation of use of a body function or system, and that she was not prevented from performing substantially all of her usual and customary daily activities for 90 of the first 180 days following the accident within the meaning of Insurance Law § 5102 (d) (see Narvaez-Reyes v Palomino, supra).
The burden, therefore, shifted to plaintiff to come forward with objective medical evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury (see Mesiti v Knight, 190 A.D.3d 1141, 138 N.Y.S.3d 740 [3d Dept 2021]; Burns v Childress, 189 A.D.3d 1939, 138 N.Y.S.3d 270 [3d Dept 2020]; Calera v Singh, 89 A.D.3d 929, 932 N.Y.S.2d 530 [2d Dept 2011 ]). To prove significant physical limitation, a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based on a recent examination or a sufficient description of the "qualitative assessment" of plaintiffs limitations, with an objective basis, correlating plaintiff s limitations to the normal function, purpose, and use of the body part (see Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]; Toure v Avis Rent A Car Systems, Inc., supra'. Rosenblum v Irby, 194 A.D.3d 1147, 148 N.Y.S.3d 268 [3d Dept 2021]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Burns v Childress, supra; Black v Gordon, I 72 A.D.3d 580, 101 N.Y.S.3d 310 [1st Dept 2019]; Cebron v Tuncoglu, 109 A.D.3d 631, 970 N.Y.S.2d 826 [2d Dept 2013]).
Plaintiff argues that defendants' expert report is insufficient to meet their burden on the motion. Plaintiff also argues that the medical reports prepared by her treating physicians raise a triable issue as to whether she suffered injury within the "significant limitation of use" category of Insurance Law § 5102 (d).
In opposition, plaintiff submits, inter alia, the unaffirmed report, dated October 21, 2019, of plaintiff s treating physician assistant, Michelle Bimonte, the sworn medical reports of her treating physician. Dr. Gregory Lieberman, from November 8, 2019 to May 28, 2021, the unsworn operative report of her treating physician, Dr. Marco Palmieri, and the unsworn magnetic resonance imaging (MRI) examination reports of Dr. Joseph Hanono. The uncertified records and unsworn physician reports submitted by plaintiff are insufficient to raise a triable issue of fact, as they are not in admissible form (see Grasso v Anger ami, 79 N.Y.2d 813, 580 N.Y.S.2d 178 [1991]; Scheker v Brown, 91 A.D.3d 751, 936 N.Y.S.2d 283 [2d Dept 2012]; Karpinos v Cora, 89 A.D.3d 994, 933 N.Y.S.2d 383 [2d Dept 2011]).
Dr. Lieberman's reports indicate that he treated plaintiff from November 2019 to May 2021. His reports set forth plaintiffs complaints and the findings at his initial consultation on November 8, 2019, approximately three weeks after the subject accident. Dr. Lieberman administered range of motion testing on plaintiffs cervical region and left shoulder on the same day and found that although plaintiff exhibited normal joint function in her cervical region, she had significant range of motion restrictions in her left shoulder: 150 degrees of active forward flexion, 165 degrees of passive forward flexion, and 50 degrees of external rotation. However, Dr. Lieberman failed to compare these findings to the normal range of motion (see Olivare v Tomlin, 187 A.D.3d 642, 131 N.Y.S.3d 159 [1st Dept 2020]; Sanchez v L.R.S. Cab Corp., 169 A.D.3d 733, 91 N.Y.S.3d 708 [2d Dept 2019]). Moreover, Dr. Lieberman failed to identify the objective tests that were utilized to measure plaintiff s ranges of motion (see Cho v Demelo, 175 A.D.3d 1235, 108 N.Y.S.3d 159 [2d Dept 2019]; Zavala v Zizzo, 172 A.D.3d 793, 794, 99 N.Y.S.3d 354 [2d Dept 2019]). Dr. Lieberman also administered range of motion testing on plaintiff s cervical region and left shoulder from November 2019 to May 2021 and found that there were significant range of motion restrictions in plaintiffs left shoulder. Again, however, Dr. Lieberman failed to compare these findings to the normal range of motion (see Olivare v Tomlin, supra; Sanchez v L.R.S. Cab Corp., supra). In view of the foregoing, Dr. Lieberman's reports are insufficient to establish a prima facie case that plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d).
Further, even assuming that plaintiff was entitled to rely on the unaffirmed MRI reports prepared by Dr. Hanono, those reports are insufficient to warrant denial of defendants' motion for summary judgment. The MRI reports revealed a herniated disc in plaintiff s cervical region. However, the mere existence of a herniated or bulging disc, in the absence of objective evidence as to the extent of the alleged physical limitations resulting from the injuries and their duration, is not evidence of serious injury (see McLoud v Reyes, 82 A.D.3d 848, 849, 919 N.Y.S.2d 32 [2d Dept 2011]; Pierson v Edwards, 77 A.D.3d 642, 909 N.Y.S.2d 726 [2d Dept 2010]; Byrd v J.R.R. Limo, 61 A.D.3d 801, 878 N.Y.S.2d 95 [2d Dept 2009]). Nor did plaintiff offer competent evidence that she sustained nonpermanent injuries that left her unable to perform substantially all of her normal daily activities for at least 90 of the 180 days immediately following the accident (see Chung v Reed, 178 A.D.3d 661, 115 N.Y.S.3d 366 [2d Dept 2019]; John v Linden, 124 A.D.3d 598, 1 N.Y.S.3d 274 [2d Dept 2015]; Il Chung Lim v Chrabaszcz, 95 A.D.3d 950, 944 N.Y.S.2d 236 [2d Dept 2012]).
Accordingly, the motion is granted.