Opinion
Index 610589/2017E
04-05-2019
Richard Padgett, Plaintiff, v. Carlos M. Figueroa and Julio S. Patzan-Borrayo, Defendants.
Attorney for Plaintiff: Kaplan Lawyers, P.C. Attorney for Defendants: Martyn & Martyn
Unpublished Opinion
Motion Date: 9/12/18
Submitted: 1/23/19
Motion Sequence No.: 001; MD
Attorney for Plaintiff: Kaplan Lawyers, P.C.
Attorney for Defendants: Martyn & Martyn
WILLIAM B. REBOLINI JUSTICE
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motions and supporting papers dated August 7, 2018; Answering Affidavits and supporting papers dated January 9, 2019; Replying Affidavits and supporting papers dated January 14, 2019; it is
ORDERED that the motion by defendants for an order granting summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102 (d) is denied.
This is an action to recover damages for personal injuries sustained by plaintiff when his vehicle collided with a vehicle owned by defendant Carlos Figueroa and operated by defendant Julio Patzan-Borrayo. It is undisputed that the accident occurred on October 22, 2016, at the intersection of Route 112 and Horseblock Road, in Medford, New York. By his bill of particulars, plaintiff alleges that, as a result of the subject accident, he sustained serious injuries and conditions, including herniated discs in the cervical and lumbar regions, cervical and lumbar radiculopathy, and sprains in the spine and shoulders.
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).
Insurance Law § 5102 (d) 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 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."
In order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 N.Y.2d 295, 727 N.Y.S.2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed, or there must be a sufficient description of the "qualitative nature" of plaintiffs 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]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Cebron v Tuncoglu, 109 A.D.3d 631, 970 N.Y.S.2d 826 [2d Dept 2013]).
On a motion 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 Gaddy v Eyler, 79 N.Y.2d 955, 582N.Y.S.2d 990 [1992]; Akhtar v Santos, 57 A.D.3d 593, 869 N.Y.S.2d 220 [2d Dept 2008]). The defendant may satisfy this burden by submitting the plaintiff s deposition testimony and the affirmed medical report of the defendant's own examining physician (see Moore v Edison, 25 A.D.3d 672, 811 N.Y.S.2d 724 [2d Dept 2006]; Farozes v Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706 [2d Dept 2005]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]; Boone v New York City Tr. Auth., 263 A.D.2d 463, 692 N.Y.S.2d 731 [2d Dept 1999]).
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 their examining physician (see Bailey v Islam, 99 A.D.3d 633, 953 N.Y.S.2d 39 [1st Dept 2012]; Sierra v Gonzalez First Limo, 71 A.D.3d 864, 895 N.Y.S.2d 863 [2d Dept 2010]; Staff v Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 [2d Dept 2009]). On March 28, 2018, approximately 17 months after the subject accident, moving defendants' examining orthopedist, Dr. Gary Kelman, examined plaintiff and performed certain orthopedic and neurological tests, including the foraminal compression test, the straight leg raising test, the impingement sign, and the O'Brien test. Dr. Kelman found that all the test results were negative or normal, and that there was no spasm or tenderness in plaintiffs spine. Dr. Kelman also performed range of motion testing on plaintiffs spine and shoulders, using a goniometer to measure his joint movement, and found that plaintiff exhibited normal joint function. Dr. Kelman opined that plaintiff had no orthopedic disability at the time of the examination (see Willis v New York City Tr. Auth., 14 A.D.3d 696, 789 N.Y.S.2d 223 [2d Dept 2005]).
Further, at his deposition, plaintiff testified that following the accident, he did not miss any time from work for approximately three months until January 25, 2017, when he underwent cervical spine surgery. After the surgery, he missed a week from work. Plaintiff testified there is no activity that he is unable to perform because of the accident. Plaintiffs deposition testimony established that his injuries did not prevent him from performing "substantially all" of the material acts constituting his customary daily activities during at least 90 out of the first 180 days following the accident (see Burns v McCabe, 17 A.D.3d 1111, 794 N.Y.S.2d 267 [4th Dept 2005]; Curry v Velez, 243 A.D.2d 442, 663 N.Y.S.2d 63 [2d Dept 1997]).
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 he was not prevented from performing substantially all of his usual and customary daily activities for 90 of the first 180 days following the accident within the meaning of Insurance Law § 5102 (d) (see Gonzalez v Green, 24 A.D.3d 939, 805 N.Y.S.2d 450 [3d Dept 2005]).
The burden, therefore, shifted to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, supra). A plaintiff claiming injury within the "limitation of use" categories must substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitation of movement 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]; Cerisier v Thibiu, 29 A.D.3d 507, 815 N.Y.S.2d 140 [2d Dept 2006]). 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 of the plaintiff or 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, supra; Toure v Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; 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; Cebron v Tuncoglu, supra). Furthermore, a plaintiff claiming serious injury who ceases treatment after the accident must offer a reasonable explanation for having done so (Pommells v Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380 [2005]; see Vasquez v John Doe #1, 73 A.D.3d 1033, 905 N.Y.S.2d 188 [2d Dept 2010]; Rivera v Bush wick Ridge wood Props., Inc., 63 A.D.3d 712, 880 N.Y.S.2d 149 [2d Dept 2009]).
Plaintiff opposes the motion, arguing defendants' expert report is insufficient to meet their burden on the motion. Plaintiff also argues that the affirmations of his treating physicians, Dr. Jordan Sudberg and Dr. John Velez, raise a triable issue as to whether he suffered injury within the "significant limitation of use" category of Insurance Law § 5102 (d). In his affirmation, Dr. Sudberg states that he first examined plaintiff on November 28, 2016, approximately five weeks after the subject accident. During the initial consultation, plaintiff complained of pain in his cervical region and right shoulder. Dr. Sudberg administered range of motion testing on plaintiffs cervical region, using a goniometer to measure his joint movement. Dr. Sudberg found that there were significant range of motion restrictions in plaintiffs cervical region: 30 degrees of flexion (50 degrees normal), . 30 degrees of extension (50 degrees normal), 65 degrees of left rotation and 60 degrees of right rotation (85 degrees normal), and 25 degrees of left and right lateral flexion (45 degrees normal).
In his affirmation, Dr. Velez states that he first examined plaintiff on May 24, 2017 and administered range of motion testing on his cervical region. Dr. Velez found that there were significant range of motion restrictions in plaintiffs cervical region. On August 22, 2018, Dr. Velez re-examined plaintiff and administered range of motion testing on his cervical region, using a goniometer to measure his joint movement. Dr. Velez found that there were significant range of motion restriction in plaintiff's cervical region: 40 degrees of flexion (50 degrees normal), 50 degrees of extension (60 degrees normal), and 70 degrees of left and right rotation (80 degrees normal).
Here, plaintiff submitted competent medical evidence raising a triable issue of fact as to whether he sustained a significant limitation of use of a body function or system constituting a serious injury as defined by Insurance Law § 5102 (d) (see Perl v Meher, supra; Gooden v Joseph, 137 A.D.3d 1215, 27 N.Y.S.3d 393 [2d Dept 2016]). In addition, plaintiff, with minimal adequacy, explained his treatment gap by testifying that he underwent chiropractic treatment until no-fault insurance benefits were terminated (see Giap v Hathi Son Pham, 159 A.D.3d 484, 71 N.Y.S.3d 504 ). Accordingly, defendants' motion for summary judgment dismissing the complaint is denied.