Opinion
Index No. 16-618419
04-11-2019
ANDRES NARVAES-REYES, Plaintiff, v. JORGE JUAN PALOMINIO, III, and MILAGROS PALOMINIO,Defendants.
Mot. Seq. # 002 - MG; CASEDISP Attorney for Plaintiff CANNON & ACOSTA, LLP Attorney for Defendants LAW OFFICES OF MARTYN AND MARTYN
Unpublished Opinion
MOTION DATE 7-19-18
ADJ. DATE 9-27-18
Mot. Seq. # 002 - MG; CASEDISP
Attorney for Plaintiff CANNON & ACOSTA, LLP
Attorney for Defendants
LAW OFFICES OF MARTYN AND MARTYN
WILLIAM G. FORD Justice
Upon the following papers read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers by defendants, dated June 11.2018: Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by plaintiff, dated September 20.2018: Replying Affidavits and supporting papers by defendants, dated September 24. 2018: Other_; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by defendants Jorge Palomino and Milagros Palomino seeking summary judgment dismissing the complaint is granted.
Plaintiff Andres Narvaez-Reyes commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Brook Avenue and William Street in the Town of Islip on May 23, 2016. By his complaint, plaintiff alleges that the accident occurred when the vehicle owned by defendant Milagros Palomino and operated by defendant Jorge Palomino pulled to the side of the curb on Brook Avenue and then made a U-turn directly across path of travel of plaintiff s vehicle, causing his vehicle to strike the left side of the Palomino vehicle. Prior to the accident's occurrence, plaintiff s vehicle was traveling westbound behind the Palomino vehicle. By his bill of particulars, plaintiff alleges, among other things, that he sustained various personal injuries as a result of the subject collision, including disc herniations at levels Tl 1 through L3, and right knee derangement.
Defendants now move for summary judgment on the basis that the injuries alleged to have been sustained by plaintiff as a result of the subject accident fail to meet the serious injury threshold requirement of Insurance Law § 5102 (d). In support of the motion, defendants submit copies of the pleadings, plaintiffs deposition transcript, and the sworn medical reports of Dr. Gary Kelman and Dr. Sheldon Feit. At defendants' request, Dr. Kelman conducted an independent orthopedic examination of plaintiff on January 24, 2018. Also at defendants' request, Dr. Feit performed an independent radiological review of the magnetic resonance images ("MRI") film of plaintiffs lumbar spine taken on July 29, 2016. Plaintiff opposes the motion on the grounds that defendants failed to meet their prima facie burden that he did not sustain a serious injury within the meaning of the Insurance Law, and that the evidence submitted in opposition demonstrates that he sustained injuries within the "limitations of use" and the "90/180" categories of the Insurance Law. In opposition to the motion, plaintiff submits uncertified copies of his medical records regarding the injuries at issue, and the sworn medical report of Dr. Maxim Tyorkin.
It has long been established that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 84 N.Y.2d 795, 798,622 N.Y.S.2d 900 [1995]; see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]). Therefore, the determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Porcano v Lehman, 255 A.D.2d 430, 680N.Y.S.2d 590 [2d Dept 1988]; Nolan v Ford, 100 A.D.2d 579,473 N.Y.S.2d 516 [2d Dept 1984], affd 64 N.Y.2d 681, 485 N.Y.S.2d 526 [1984]).
Insurance Law § 5102 (d) defines a "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 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."
A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, [such as], affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept 1992]). A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians (see Fragale v Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001]; Grossman v Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 [2d Dept 2000]; Vignola v Varrichio, 243 A.D.2d 464,662 N.Y.S.2d 831 [2d Dept 1997]; Torres v Micheletti, 208 A.D.2d 519,616 N.Y.S.2d 1006 [2d Dept 1994]). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, supra; Tornabene v Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [4th Dept 2003]; Pagano v Kingsbury, supra).
Here, defendants have established a prima case that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra). Defendants' examining orthopedist, Dr. Kelman, used a goniometer to test the ranges of motion in plaintiffs spine, knees, and hips, and compared his respective findings to the normal range of motion values for each region (see e.g. Cantave v Gelle, 60 A.D.3d 988, 877 N.Y.S.2d 129 [2d Dept 2009]; Staff v Yshua, 59 A.D.3d 614, 874N.Y.S.2d 180 [2d Dept 2009]; Desulme v Stanya, 12 A.D.3d 557, 785 N.Y.S.2d 477 [2d Dept 2004]). The affirmed medical report of Dr. Kelman states that an examination of plaintiff revealed that he has full range of motion in his spine, knees, and hips, that there is no paraspinal tenderness or spasm upon palpation of the paraspinal muscles, that he does not have a limp or antalgic gait, and that the straight leg raising test is negative. Dr. Kelman states that plaintiffs muscle strength in his upper and lower extremities is 5/5, that his sensory responses are intact, and that there was no evidence of muscle atrophy. Dr. Kelman opines that the strains/sprains sustained to plaintiffs spine, right knee, and left hip as a result of the subject accident have resolved, that there is evidence "plaintiff responded to the treatment he received with an objective functional gain," and that the objective findings are not consistent with or proportional to the subjective complaints by plaintiff. Dr. Kelman further states that plaintiff does not require any further treatment or orthopedic treatment, that there is no evidence of an orthopedic disability causally related to the subject accident, and that plaintiff is capable of working full time without restrictions.
Furthermore, reference to plaintiff s own deposition testimony sufficiently refutes the allegations that he sustained injuries within the limitations of use categories and within the 90/180 category of the Insurance Law (see Pryce v Nelson, 124 A.D.3d 859,2 N.Y.S.3d 214 [2d Dept 2015]; Knox v Lennihan, 65 A.D.3d 615, 884 N.Y.S.2d 171 [2d Dept 2009]; Rico v Figueroa, 48 A.D.3d 778, 853 N.Y.S.2d 129 [2d Dept 2008]). Plaintiff testified at an examination before trial that he was a student at the time of the accident, and was on summer vacation from school when the accident occurred, so he did not miss any classes as a result of the accident. Plaintiff testified that he did not miss any time from his summer employment due to any injuries that he sustained in the accident, and that his duties at work were not altered following the accident. Plaintiff further testified that he received physical therapy for approximately five months, but he ceased all physical therapy and medical treatment at the end of October 2016, and that he does not have any medical treatments or appointments currently scheduled related to the injuries he sustained in the accident.
Defendants, having made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of the statute, shifted the burden to plaintiff to come forward with evidence to overcome defendants' submissions by demonstrating the existence of a triable issue of fact that a serious injury was sustained (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]). A plaintiff claiming a significant limitation of use of a body function or system must substantiate his or her complaints with objective medical evidence showing the extent or degree of the limitation caused by the injury and its duration (see Ferraro v Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408 [2d Dept 2008]; Mejia v DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 772 [2d Dept 2006]; Laruffa v Yui Ming Lau, 32 A.D.3d 996, 821 N.Y.S.2d 642 [2d Dept 2006]; Kearse v New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281 [2d Dept 2005]). "Whether a limitation of use or function is 'significant' or 'consequential' (i.e. important...), 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" (Dufel v Green, supra at 798). To prove the extent or degree of physical limitation with respect to the "limitations of use" categories, either objective evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration based on a recent examination of the plaintiff must be provided or there must be a sufficient description of the "qualitative nature" of plaintiff s limitations, with an objective basis, correlating plaintiffs 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 at 350; see also Valera v Singh, 89 A.D.3d 929,923 N.Y.S.2d 530 [2d Dept 2011]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, supra). However, evidence of contemporaneous range of motion limitations is not a prerequisite to recovery (see Perl v Meher, supra; Paulino v Rodriguez, 91 A.D.3d 559, 937 N.Y.S.2d 198 [1st Dept 2012]).
In opposition, plaintiff has failed to raise a triable issue of fact as to whether he sustained a serious injury as a result of the subject accident (Romero v Braithwaite, 154 A.D.3d 894, 62 N.Y.S.3d 170 [2d Dept 2017]; Small v City of New York, 148 A.D.3d 959, 49 N.Y.S.3D 176 [2dDept2017]; Washington v Pichardo, 140 A.D.3d 950, 32 N.Y.S.3d 508 [2d Dept 2016]). A plaintiff is required to present nonconclusory expert evidence sufficient to support a finding not only that the alleged injury is within the serious injury threshold of Insurance Law § 5102 (d), but also that the injury was casually related to the subject accident in order to recover for noneconomic loss related to personal injury sustained in a motor vehicle accident (see Valentin v Pomilla, 59 A.D.3d 184, 873 N.Y.S.2d 537 [1st Dept 2009]). Plaintiff has submitted the affirmed medical report of Dr. Maxim Tyorkin, who concludes that plaintiff sustained cervicalgia, lumbar radiculopathy, internal derangement of the right knee, and significant range of motion restrictions in his spine, which prevent him from performing his usual and customary daily living activities, and that such injuries and limitations are directly related to the trauma he sustained in the subject accident. Dr. Tyorkin also states that plaintiff was asymptomatic prior to the subject accident, that he continues to display positive symptomology in his spine, and that the symptomology is related to the trauma he underwent in the subject accident and not from a degenerative condition. However, Dr. Tyorkin's initial examination of plaintiff occurred on August 22,2018, more than two years after the subject accident. Thus, Dr. Tyorkin is unable to substantiate the extent or degree of the limitation to plaintiffs cervical and lumbar regions or right knee caused by the alleged injury and its duration (see Caliendo v Ellington, 104 A.D.3d 635,960 N.Y.S.2d 471 [2d Dept 2013]; Bacon v Bostany, 104 A.D.3d 625, 960 N.Y.S.2d 190 [2d Dept 2013]; Calabro v Petersen, 82 A.D.3d 1030, 918 N.Y.S.2d 900 [2d Dept 2011]), since he did not examine plaintiff contemporaneously with the subject accident. More important, Dr. Tyorkin, in his medical report, relies upon the unsworn, inadmissible medical reports of other doctors and physical therapists in deriving his conclusions. Thus, his report fails to raise a triable issue of fact (see Kreimerman v Stunis, 74 A.D.3d 753, 902 N.Y.S.2d 180 [2d Dept 2010]; Cotto v JND Concrete & Brick, Inc., 41 A.D.3d 315,837 N.Y.S.2d 728 [2d Dept 2007]; Margras v Colasuonno, 278 A.D.2d 388, 717 N.Y.S.2d 627 [2d Dept 2000]).
Finally, plaintiff failed to produce any objective medical evidence to substantiate the existence of an injury which limited his usual and customary daily activities for at least 90 of the first 180 days immediately following the subject accident (see Catalano v Kopmann, 73 A.D.3d 963,900 N.Y.S.2d 759 [2d Dept 2010]; Haber v Mali, 69 A.D.3d 796, 892 N.Y.S.2d 531 [2d Dept 2010]). Accordingly, defendants' motion for summary judgment dismissing the complaint is granted; and it is
ORDERED that, if applicable, within 30 days of the entry of this decision and order that defendant is also hereby directed to give notice to the Suffolk County Clerk as required by CPLR 8019(c) with a copy of this decision and order and pay any fees should any be required; and it is further
ORDERED that defendant serve a copy of this decision and order with a notice of entry on the defendant.