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Moore v. Arucyunov

Civil Court of the City of New York, Kings County
Jan 27, 2005
2005 N.Y. Slip Op. 50053 (N.Y. Civ. Ct. 2005)

Opinion

3290/2000.

Decided January 27, 2005.


Upon the close of plaintiff's case in this action to recover damages for personal injuries, the defendant moved for a directed verdict on the ground that the plaintiff failed to make a prima facie case that he sustained a "serious injury" within the meaning of Insurance Law § 5102[d]. For the following reaons, defendant's motion is GRANTED.

Factual Background:

The plaintiff commenced this action to recover damages for personal injuries sustained as a result of a motor vehicle accident that occurred on January 1, 1998. Plaintiff's alleged injuries include a herniated disc as L5-S1 and several bulging discs in the cervical and lumbar spine. The defendant conceded liability and a trial on the issue of damages followed.

During the trial, plaintiff testified that he was treated for his injuries once or twice in emergency room of Kings County Hospital and for approximately six months at a medical facility located on Montague Street in Brooklyn. None of plaintiff's treating doctors were called as witnesses. Plaintiff further testified that he was involved in two subsequent motor vehicle accidents, one in 1999 and the other in either 2000 or 2001, wherein he sustained additional injuries to his neck and back. Following each of these accidents, he was treated for several months. None of the doctors who treated him following these accidents were called as witnesses nor were they identified.

The only medical records admitted in evidence during the trial was a record of one of plaintiff's emergency room visits to the of Kings County Hospital and a series of cervical and lumbar MRI films taken in January 1998. The only medical expert to testify on plaintiff's case was Dr. Aric Haustenecht who examined the plaintiff for the first and only time in September 2004, almost six years following the accident. Dr. Haustenecht testified that he found certain limitations and restrictions in plaintiff's lumbar and cervical spine as well as tenderness, spasm and muscle weakness. He further testified that the MRI films admitted in evidence revealed that that plaintiff was suffering from several bulging dics in in his cervical and lumbar spine and a herniated disc at L5-S1. He concluded that the disc bulges and the disc herniation, as well as the limitations plaintiff presented with in September 2004, were caused by January 1, 1998 accident. His testimony as to causation was based primarily on plaintiff's testimony that he had never injured his back or neck prior to January 1, 1998. Dr. Haustenecht never reviewed any of the medical records concerning plaintiff's treatment for the injuries he sustained in either of the subsequent accidents and he only became aware of these accidents after he conducted his examination.

Discussion:

In order to establish a prima facie case, it was incumbent upon the plaintiff to present sufficient evidence establishing that he sustained a "serious injury" within the meaning of Insurance Law § 5102[d] as a result of the January 1, 1998 accident.

There is no merit to plaintiff's first contention that the evidence supports a finding of "serious injury" under the category of a "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 the injured person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence" (Insurance Law § 5102[d]). Plaintiff offered no objective medical evidence as to the nature and extent of his limitations during the one hundred eighty day period immediately following the accident. Absent such evidence, plaintiff's self-serving statements concerning his inability to perform his daily activities was insufficient to create a triable issue of fact of "serious injury" under the 90/180 day category ( see Rosenbaum v. City of New York, 282 AD2d 514, 723 NYS2d 92; Herman v. Church, 276 AD2d 471, 714 NYS2d 87; Turchuk v. Town of Wallkill, 255 AD2d 576, 681 NYS2d 72; Delgado v. Hakim, 287 AD2d 592, 593, 732 NYS2d 233, 234). Equally without merit is plaintiff's second contention that the evidence supported a finding of a "permanent consequential limitation of use of a body organ or member" and/or a "significant limitation of use of a body function or system" (Insurance Law § 5102[d]). Although sufficient evidence was presented supporting plaintiff's claim that he had sustained bulging discs and a herniated disc as a result of the accident, these kinds of injuries by themselves do not constitute a "serious injury" as a matter of law. It is well settled that to meet the "serious injury" threshold, a plaintiff suffering from a disc injury must provide objective evidence of the extent or degree of the limitations resulting from the injury and their duration ( Fauk v. Jenkins, 301 AD2d 564, 564, 754 NYS2d 317; Duldulao v. City of New York, 284 AD2d 296, 297, 725 NYS2d 380; Foley v. Karvelis, 276 AD2d 666, 667, 714 NYS2d 337) and demonstrate that the limitations were not "minor, mild or slight" ( Gaddy v. Eyler, 79 NY2d 955, 957, 582 NYS2d 990, 591 NE2d 1176; see also Lanuto v. Constantine, 192 AD2d 989, 991, 596 NYS2d 944, lv. denied 82 NY2d 654, 602 NYS2d 803, 622 NE2d 304).

Here, the only probative medical evidence presented as to the extent and degree of plaintiff's limitations was Dr. Haustenecht's testimony concerning his examination of the plaintiff in September 2004. No probative medical evidence was presented as to the nature of the injuries plaintiff sustained as a result of the two subsequent accidents nor of the limitations that resulted from those injuries. In view of the foregoing, and given the almost six year gap between the accident and Dr. Haustenecht's examination of the plaintiff, Dr. Haustenecht testimony that the limitations found in September 2004 resulted from the accident of January 1, 1998, and not from the two subsequent accidents, can only be viewed as speculative. His testimony was therefore insufficient to support a finding of "serious injury" ( see Finkelshteyn v. Harris, 280 AD2d 579, 579-580, 721 NYS2d 90, 91] [physician's opinion as to limitations based on a single examination conducted on January 3, 2000 was insufficient to establish an issue of fact as to "serious injury" where the accident occurred on July 10, 1997 and where plaintiff was involved in a prior accident in February 1994 on and a subsequent accident in December 1998]; Rogers v. Chiarelli, 10 AD3d 355, 781 NYS2d 368 [defendant's motion for summary judgment granted where plaintiff's medical expert failed to account for the neck and back injuries plaintiff sustained in a prior and subsequent accident]; McNeil v. Dixon, 9 AD3d 481, 780 NYS2d 635, 637 [defendant's motion for summary granted where plaintiff failed to present objective evidence distinguishing the injuries he sustained in one accident from those sustained in another]; Barrow v. Budhu, 2 Misc 3d 133[A], 784 NYS2d 918] [Plaintiff's doctor's affirmation was insufficient to defeat summary judgment as it failed to address plaintiff's involvement in one prior and two subsequent accidents for which she received medical attention]; McCreesh v. Hoehn, 307 AD2d 638, 639, 762 NYS2d 527, 528] ["Plaintiff's submissions are also deficient in failing to distinguish the neck spasms plaintiff suffered before and after the accident, as well as any injuries sustained in the subsequent accident in 1999"]; Uber v. Heffron, 286 AD2d 729, 730, 730 NYS2d 174, 175 ["Furthermore, the experts failed to explain * * * the possible significance of related injuries sustained by the plaintiff in a subsequent automobile accident"]; see also Cacaccio v. Martin, 235 AD2d 384, 652 NYS2d 74 [2d Dep't 1997]; Mooney v. Edwards, 12 AD3d 424, 784 NYS2d 599). Accordingly, it is hereby

ORDERED that defendant's motion for a directed verdict is GRANTED and plaintiff's complaint, except for the cause of action for property damage, is hereby dismissed. The property damage claim is hereby severed with leave granted to the plaintiff to persue the claim in Small Claims Court.

This constitutes the decision and order of the court.


Summaries of

Moore v. Arucyunov

Civil Court of the City of New York, Kings County
Jan 27, 2005
2005 N.Y. Slip Op. 50053 (N.Y. Civ. Ct. 2005)
Case details for

Moore v. Arucyunov

Case Details

Full title:WILLIAM MOORE, Plaintiff, v. VLADISLAV ARUCYUNOV and "JOHN DOE", Defendants

Court:Civil Court of the City of New York, Kings County

Date published: Jan 27, 2005

Citations

2005 N.Y. Slip Op. 50053 (N.Y. Civ. Ct. 2005)