Opinion
01-CV-263 (NG)
July 24, 2002
ORDER
Plaintiff Luis Mejia brought this personal injury action against Leisure Time Tours and Ceran Huseyin, a bus driver for Leisure Time Tours, in Supreme Court, Queens County on November 22, 2000. Defendants removed the case to this court based on diversity jurisdiction. See 28 U.S.C. § 1332. Defendants now moves for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff has not responded to defendants' motion, so defendants' motion will be treated as an unopposed motion for summary judgment.
FACTS
At his deposition, plaintiff testified that on April 20, 1999, Huseyin hit plaintiff at the intersection of Roosevelt Avenue and Prince Street in Queens. Plaintiff testified that, while waiting in the left lane of Roosevelt Avenue for a red light to change, the bus hit him on the right side of his automobile and proceeded to make a right turn down Prince Street. Plaintiff claims that there was damage to his vehicle on the right rear corner. However, plaintiff also testified that "[t]here was a big impact from my left." Plaintiff does not recall what part of his body made contact with the interior of his automobile; he just claimed his body "was bouncing all over the place." He testified that, after the impact, his automobile was propelled into oncoming traffic. He drove his automobile away from oncoming traffic, and chased the bus down Prince Street. About a block away from Roosevelt Avenue, the bus stopped. Whether the bus stopped because plaintiff was following the bus or because there was a scheduled stop is in dispute. Huseyin denies that any accident occurred that night, and claims that the first time he saw plaintiff was while he was at a scheduled stop.
When the bus was stopped, plaintiff knocked on Huseyin's driver-side window, claiming that the bus had hit plaintiff. Huseyin exited his bus, examined plaintiffs automobile, and telephoned the police because he did not believe an accident had occurred. Plaintiff claims that, when the police arrived at the scene, plaintiff told them what happened, but they did not complete a report or take any measurements of the alleged damage to plaintiffs automobile. Huseyin testified that the police took measurements of plaintiffs automobile and the bus, and completed a report. It is undisputed there was no damage to the bus.
Plaintiff told the police that he required medical assistance. An ambulance arrived, and plaintiff informed the paramedics that he was "dizzy, and . . . very uncomfortable." Plaintiff claims that he was "uncomfortable" all over his body, and that he had a strong stabbing pain in his lower back. He also claims that the back of his neck was hurt. The ambulance brought plaintiff to the emergency room of Flushing Hospital. Plaintiff told the doctor at the emergency room that he "was kind of dizzy and feel all this pains around my body, and he just said to see my doctor. He just told me that and give me some Tylenol." They did not perform any testing on plaintiff; no x-rays were taken. Plaintiff was released after an hour.
Plaintiff sought medical treatment three days later. Plaintiff testified that, at that time, his entire back hurt. He attended physical therapy with Dr. Mena, a physical therapist, for four to six months. Dr. Mena had not treated plaintiff prior to the accident. Plaintiff went to physical therapy four times a week for about two months, and then three times a week for about two more months. His treatment consisted of hot pads, massages, and "electrodes." Plaintiff testified that the treatment helped his pain. Plaintiff also saw another doctor, who he thinks was a chiropractor. At his deposition, plaintiff did not recall how often or what treatment he received. Plaintiff testified that he did not see any other doctors, and he did not receive any other treatment except for taking Tylenol.
Dr. Koval's report indicates that plaintiffs attorney referred him to both Dr. Mena and Dr. Rodriguez, a psychiatrist.
On June 17, 1999, plaintiff underwent an MM of the cervical spine, which revealed straightening and disc bulging from C2-3 through C5-6 with disc material approximating the ventral thecal sac. The cervical cord and craniocervical junction were unremarkable in appearance, and there was no evidence of central canal stenosis, bony lateral recess stenosis or neural foraminal stenosis. An MM of the lumbar spine conducted the same day, which indicated straightening and flattened appearance to the posterior aspect of the discs at L3-4 and L4-5, which may represent early disc bulging.
When asked what activities he could not perform as a result of the accident, plaintiff, who was unemployed at the time of the alleged accident, stated that he played soccer once a week prior to the accident, but since the accident, he has been afraid to play soccer. However, at another point, he testifies that he is limited to playing goalkeeper. He also testified that he cannot move heavy furniture or have sexual intercourse as often as he did prior to the accident, but defendants' counsel, in a sworn affirmation, claims that plaintiff's live-in girlfriend, who accompanied plaintiff to his deposition, appeared to be about eight months pregnant. Finally, plaintiff claims that he was confined to his home for about two months after the accident, but he admits that he drove to his doctor's appointments.
Dr. Koval, a licensed orthopedic and traumatic surgeon, examined plaintiff on behalf of defendants on October 2, 2001. He also reviewed plaintiff's medical files. Plaintiff complained of "some pain" in his lower back, but that it never radiated into his arms or legs. He also informed Dr. Koval that his condition had greatly improved and that he was not taking any medication. An orthopedic examination revealed normal stance and gate, that plaintiff moved his neck freely and came within one inch of touching his toes. Dr. Koval found no deformity, swelling, or asymmetry of the cervical spine, and no tenderness or spasm upon palpitation or inspection. He found that plaintiff had a full range of active and passive cervical motion in all directions, which was painless. He also found a full range of spinal motion in all directions, with no muscle spasm. Upon sitting on the edge of the examination table, plaintiff could flex his neck, spine and bring his legs up to 90 degrees without complaints of pain or restriction of motion. Straight leg raising was free and unrestricted bilaterally. There was no tenderness along the sciatic nerve and no spasm of the supporting muscles of the neck or back. Examination of the upper and lower extremities were within normal limits. Dr. Koval concluded that:
In short, I found no objective findings relating to Mr. Mehai's accident. Mr. Mehia most likely sustained a sprain to his neck and back, which has long since subsided. I am puzzled as to why Mr. Mehia continued treatment for so long.
This was a completely negative exam. I found no disability, impairment or restriction of any kind and also feel that Mr. Mehia has completely recovered.
On June 27, 2001, Dr. Robert Karlan, a licensed neurologist, examined plaintiff on behalf of defendants. He also reviewed plaintiff's medical files. Plaintiff stated that after the accident he had headaches, but that he no longer had headaches. He notes that plaintiff denied any neck injury from the accident, and did not complain about cervical pain. Plaintiff complained about nonraidating midline back pain that occurs with physical labor or excursion. Upon examination, plaintiff's strength in both arms and legs were intact, and there was no weakness or atrophy of any muscle group in the arms or legs. Motor exam was unremarkable, and reflexes were present and equal. There were no sensory defects. Plaintiff was able to bend easily without paravertebral spasm or lumbar tenderness. Straight leg raising was negative bilaterally in both the sitting and lying position. Plaintiff's neck was supple in all directions, with no radicular symptoms. Dr. Karlan concluded that plaintiff's neurological examination was normal and that he did not require any neurological care.
DISCUSSION
Summary Judgment Standards
Motions for summary judgment are granted if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995). The moving party must demonstrate the absence of any material factual issue genuinely in dispute. Id. The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the non-moving party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986). The party must produce specific facts sufficient to establish that there is a genuine factual issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Defendants' Summary Judgment Motion
It is undisputed that this case is governed by New York law. In cases such as this case, where a plaintiff alleges that he has sustained a "serious injury" in order to avoid the limitation contained in the Comprehensive Motor Vehicle Insurance Reparations Act ("no fault"), N.Y. Insurance Law § 5101, et seq., on actions for personal injuries arising out of negligence in the use or operation of a motor vehicle, the trial court must "decide the threshold question of whether the evidence would warrant a jury finding that the injury falls within the class of injuries that, under no-fault, should be excluded from judicial remedy." Licari v. Elliott, 57 N.Y.2d 230, 238 (1982). The statute defines serious injury as:
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limiting 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.
N.Y. Insurance Law § 5102(d). On summary judgment motions, a defendant must establish a prima facie case by presenting evidence to warrant a finding as a matter of law that a plaintiff has not sustained a serious injury. Plater v. Brennan, 173 A.D.2d 945 947 (3rd Dept. 1991). In response, it is the plaintiffs burden to go forward and submit competent evidence raising a triable issue of fact that a serious injury was sustained. Id. at 947-48.
In this case, defendants have established a prima facie case that the injuries sustained by plaintiff were not serious within the meaning of the no fault laws through the affidavits and medical reports of Dr. Koval, an orthopedist, and Dr. Karlan, a neurologist, both of whom examined plaintiff. Dr. Koval indicated that his exam was "completely negative. . . . I found no disability, impairment or restriction of any kind and also feel that Mr. Mehia has completely recovered." Likewise, Dr. Karlan concluded that plaintiff's neurological examination was normal and that he did not require any neurological care. See Meric v. Cancela, 275 A.D.2d 309, (2nd Dept. 2000) (holding that defendants met their burden of presenting evidence to warrant a finding that a plaintiff has not sustained a serious injury through affirmed reports of a neurologist and an orthopedist finding that plaintiff had no disability).
Plaintiff has submitted no evidence in response raising a triable issue of fact that a serious injury was sustained. The only evidence in the record is an MM that revealed disc bulging and plaintiffs subjective complaints of pain. While bulging discs, as revealed by an MM, might constitute a serious injury within the meaning of the no fault laws, see Faruque v. Ponce, 259 A.D.2d 464, 464 (2nd Dept. 1999); Maisonaves v. Friedman, 255 A.D.2d 494, 495 (2nd Dept. 1998), MRI evidence revealing disc bulging, "standing alone, do[es] not raise a triable issue of fact as to serious injury. For a bulging disc . . . to constitute a serious injury, there must also be objective evidence of the extent or degree of the alleged limitation resulting from the injury and its duration." Foley v. Karvelis, 276 A.D.2d 666, 667 (2nd Dept. 2000) (citing Guzman v. Paul Michael Management, 266 A.D.2d 508, 509 (2nd Dept. 1999)); Noble v. Ackerman, 252 A.D.2d 392, 394 (2d Dept. 1998). In this case, as in Guzman, plaintiff submits no other medical evidence, such as reports or affidavits from treating or examining physicians, connecting his bulging discs to any limitation of motion, and his subjective complaints of pain are insufficient for this purpose. See Guzman, 266 A.D.2d at 509.
As in Noble, plaintiff's testimony concerning his physical limitations was unspecific. Noble, 252 A.D.2d at 395. Plaintiff testified that he was "very uncomfortable" after the accident, and that he informed doctors in the emergency room that he had "pain all around [his] body." Further, he reported to Dr. Koval that he was in "some [nonradiating] pain" in his lower back and his only complaint to Dr. Karlan was of non-radiating midline back pain when plaintiff engages in physical labor. While at one point plaintiff testified that he had "strong stabbing pain in his lower back," this claim is belied by his limited treatment. Plaintiff has not taken prescription medication; he has only taken Tylenol and received massages, hot pad treatment, and "electrodes." Further, he testified that this treatment eased his pain, and he informed Dr. Koval that his pain was greatly improved. Therefore, plaintiff has failed to raise a material issue of fact genuinely in dispute that he suffered a personal injury which resulted in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limiting of use of a body organ or member; or significant limitation of use of a body function or system.
Finally, plaintiff has not raised a genuine issue of material fact that he suffered 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. Plaintiffs claim that he was afraid to play soccer, or to play any position besides goalkeeper, that he could not lift heavy furniture, and that he could not have sexual intercourse as often as he did prior to the accident (a claim that is questionable in light of defense counsel's affidavit indicating that plaintiff was accompanied to his deposition by his visibly pregnant live-in girlfriend), is insufficient to establish that the injury prevented him from performing substantially all of the material acts which constitute his usual and customary daily activities. Further, while plaintiff claims that he was confined to his house, he admits that this only was for two months; not ninety days.
Since defendants are entitled to summary judgment on the grounds that plaintiff has failed to show he suffered a serious injury, this court need not reach defendants alternative claim that plaintiff has failed to raise a genuine issue of material fact that an accident actually occurred.
CONCLUSION
Petitioner has failed to raise a genuine issue of material fact that he suffered a serious injury, as required by New York's no fault law. Therefore, defendants are entitled to summary judgement.The clerk of court is directed to close this case.
SO ORDERED.