Opinion
Index 51673/2019
11-05-2020
TATIANA PANICH and OLEG PANICH, Plaintiffs, v. ANGELO MATERIA, Defendant
Unpublished Opinion
DECISION AND ORDER
HON. TERRY JANE RUDERMAN, J.S.C.
The following papers were considered in connection with the motion by defendant Angelo Materia for an order pursuant to CPLR 3212, granting him summary judgment on the issue of damages, dismissing the complaint on the grounds that as a matter of law plaintiff Tatiana Panichss injuries do ~ot meet the serious injury threshold of Insurance Law S 5102, and that plaintiff Oleg Panich has failed to show that he incurred property damage to his motor vehicle as a result of the subject accident:
| Papers | Numbered |
| Notice of Motion, Affirmation, Exhibits A - G |
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| Affirmation in Opposition, Affidavit, Exhibit A, and Memorandum of Law |
|
| Reply Affirmation, Exhibit A |
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This is an action for personal injuries allegedly sustained by plaintiff Tatiana Panich, as well as property damage allegedly sustained by plaintiff Oleg Panich, as a result of a collision that occurred on September 21, 2055 at approximately 9:00 a.m., on Main Street at its intersection with Bank Street in White Plains, New York, when defendant's vehicle struck plaintiffs' vehicle in the rear as it waited at a traffic light. Plaintiff claims that the accident resulted in injury to her neck and back, and that the injuries she sustained qualify as serious injury under both the significant limitation and 90/180 categories.
Reference hereinafter to "plaintiff in the singular will refer to Tatiana Panich.
In moving for summary judgment, defendant contends that plaintiff s injuries do not satisfy the serious injury threshold defined by Insurance Law S 5102 (d). Defendant quotes from plaintiffs deposition testimony in an effort to establish that her claimed pain and discomfort are merely subjective, and to establish that after the accident she went for chiropractic treatment twice a week for only two or three months, and to physical therapy for only three months. Defendant also relies on the report of his expert, Dr. John R. Denton, a board certified orthopedic surgeon who performed an examination of plaintiff on October 21, 2019. Dr. Denton acknowledged that an MRI report from April 6, 2017 reported central disc herniation at L3-4 impinging upon the thecal sac, central/left paracentral disc herniation at L4-5 with extrusion into the left lateral recess and compression/posterior displacement of the left L5 nerve root; and L5-S1 shallow left paracentral disc herniation superimposed on annular disc bulge that contacts the left S1 nerve root. However, he asserted that his examination of plaintiff revealed a full range of motion except for a slightly limited range of motion in her cervical spine, with right and left rotation at 70 degrees (normal: 80 degrees), and right and left lateral bending at 40 degrees (normal: 45 degrees). Dr. Denton concluded that the accident had caused cervical and lumbar spine sprains, which have resolved, that plaintiffs subjective complaints of pain are not supported by positive, objective, correlative findings, and that there is no permanency of plaintiffs diagnosed injuries, or any medical necessity for further orthopedic treatment.
Defendant also challenges plaintiffs claim under the 90/180 category, in reliance on plaintiffs deposition testimony in which she stated that she returned to work after the accident.
In opposition, plaintiff submits her own affidavit stating that although she missed only a limited time from work during the six months following the accident and thereafter, she returned to her job in the accounts payable department at a law firm because she could not survive on no-fault benefits, although she was only able to work at 30-40% efficiency. She also asserts that she experiences great difficulty performing her daily activities, being unable to run or walk fast, having trouble climbing stairs, having difficulty with personal hygiene, and being unable to do cooking, laundry or household chores; she adds that it is extremely difficult for her to lift or carry objects, including relatives' children. Further, plaintiff explains that after the accident she was treated by a chiropractor for three months, until her no-fault benefits ended, after which she saw a different chiropractor for the next three months, and also went to a third chiropractor for two visits. She thereafter attended to yoga therapy, and then saw a physical therapist.
Plaintiff also submits an affirmed report of a physician, Yanina Kotlyar, M.D., who reviewed plaintiffs treatment history since the accident, performed a physical examination of her on July 29, 202,, and referred plaintiff for an MRI of the lumbar spine and an Electromyography and Nerve Conduction Studies, which were conducted on August 5, 2020 and August 25, 202, respectively. Dr. Kotlyar noted that plaintiffs range of motion was limited with respect to lumbar spine flexion at 45 degrees (normal: 60 degrees), extension at 20 degrees (normal: 25 degrees), and left and right lateral flexion at 20 degrees (normal: 25 degrees). The MRI revealed lumbar disc bulging and protrusion impinging on the thecal sac, as well as left side disc herniation. The report of the electronic study indicated that the results were "consistent with chronic lumbosacral radiculopathy limited to the left paraspinass muscles only," and "with sensorimotor peripheral neuropathy affecting bilateral lower extremities involving the peroneal and superficial peroneal nerves." Dr. Kotlyarss affirmed report dated September 9, 2020 concludes, based on a reasonable degree of medical certainty, that as a result of the accident at issue, plaintiff sustained lumbosacral myofasciitis and radiculopathy which are permanent in nature.
In reply, defendant notes that Dr. Kotylar, in reporting plaintiffs observed range of motion limitation,, does not indicate any objective measurement used to obtain those values. Defendant challenges as self-serving and subjective plaintiffs affidavit complaining of pain and restrictions, observing that plaintiff did not mention during her deposition the limitations she claims in her affidavit. Defendant argues that plaintiffs claimed limitations in her activities establish, at best, a light curtailment which is insufficient to raise a genuine issue regarding whether she was prevented from performing substantially all of the material acts which constituted her usual and customary daily activities.
Defendant adds that Dr. Kotylar failed to exclude plaintiffs subsequent accident, which occurred on October 8, 2015 - less than three weeks following the subject accident - as the cause of plaintiff s injuries. Finally, defendant highlights plaintiffs' failure to provide any evidentiary materials in support of Oleg Panichss property damage claim.
Analysis
To satisfy the statutory serious injury threshold based on the significant limitation and permanent consequential limitation categories, "there must be some objective proof of a plaintiffs injury" (see McEachin v City of New York, 137 A.D.3d 753, 756 [2d Dept 2016], citing Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 352 [2002] and Perl v Meher, 18 N.Y.3d 208, 266 [2011]). In addition, the mere fact that an MRI reveals the presence of soft tissue injury such as bulging or herniated discs is insufficient in itself to establish these categories of serious injury (see Kearse v New York City Tr. Auth., 16 A.D.3d 45, 46 [2d Dept 2005]). Where a claim of significant limitation or permanent consequential limitation is based on such a soft tissue injury, the plaintiff must also submit objective evidence of the extent and duration of physical limitations resulting from the claimed injury (see Clervoix v Edwards, 10 A.D.3d 626, 627 [2d Dept 2004]). Even if the plaintiff s claim is based on the "significant limitation of use" category of serious injury, which does not require permanence (see Miller v Miller, 100 A.D.2d 577, 578 . [2d Dept 1984]), objective evidence of physical limitations resulting from the disc injury must also establish its duration in order to demonstrate the significance of the claimed limitation (see Monette v Keller, 281 A.D.2d 523 [2d Dept 1984]).
The moving defendant bears the initial burden of establishing, prima facie, that the plaintiff did not sustain a serious injury caused by the accident (Smith v Matinale, 58 A.D.3d 829 [2d Dept 2009]). A defendant may satisfy that initial burden by a physicianss finding that the plaintiff has a full range of motion and lacks disabilities causally related to the motor vehicle accident (see Kearse v New York City Tr. Auth., 16 A.D.3d at 51). Here, the report of defendant's expert, Dr. Denton, concluding that Tatiana Panichss injuries consisted solely of resolved sprains, is sufficient to make a prima facie showing that plaintiff did not sustain a serious injury caused by the accident. Although Dr. Denton acknowledged that he found a 10-degree limitation in the left and right rotation of plaintiff s cervical spine"and a 5-degree limitation in the right and left lateral bending of her cervical spine, he added that these restrictions were not supported by any positive, objective, correlative findings. Moreover, the slight range of motion deficit Dr. Denton found in plaintiff s neck cannot serve as objective evidence of physical limitations resulting from her disc injuries, because plaintiffs established disc injuries as reflected in the MRIs are all in her lumbar spine, whereas her noted range of motion problem is in her cervical spine, where no injuries have been objectively demonstrated.
Plaintiffs submissions in opposition fail to establish the existence of questions of fact on the issue of serious injury based on significant limitation. Plaintiffs subjective experience of pain in her neck and back after the accident does not suffice to establish that she sustained serious injury; nor is the threshold satisfied by MRI results reflecting the presence of bulging, protruding, or herniated discs, without more (see Kearse v New York City Tr. Auth, 16 A.D.3d at 46). While the lumbar spine injuries reflected in the April 6, 2017 MRI report could be sufficient if plaintiff provided objective evidence of physical limitations resulting from those injuries, a physician asserting a range of motion limitation must identify the objective tests utilized to measure the plaintiffs range of motion (see Nicholson v Kwarteng, 180 A.D.3d 695, 696 [2d Dept 2020]; Gersbeck v Cheema, 176 A.D.3d 684, 686 [2d Dept 2019] ["plaintiffs chiropractor failed to identify the objective tests that were utilized to measure range of motion and, thus, did not support the conclusion that the plaintiff sustained a range-of-motion limitation as a result of the accident"]). Dr. Kotlyar's report of range of motion limitations in plaintiffs lumbar spine fails to indicate what objective tests were utilized to arrive at those measurements. Nor does Dr. Kotlyarss report discuss any other positive objective test results attributable to the injuries caused by the accident.
Therefore, Dr. Kotlyar's conclusion that plaintiff sustained lumbosacral myofasciitis and radiculopathy of a permanent nature as a result of the accident fails to satisfy the showing necessary to establish that plaintiff sustained a serious injury as that term is defined in Insurance Law § 5102(d).
Defendant also made a prima facie showing that plaintiffs serious injury claim pursuant to the 90/180 category should be dismissed, based on plaintiffs acknowledgment at her deposition that she returned to work after the accident, and the burden therefore shifted to plaintiff to submit evidentiary materials sufficient to establish the existence of a question of fact. To satisfy that burden, plaintiff must proffer competent objective evidence that she sustained a medically-determined injury which prevented her from performing her usual and customary activities for 90 of the 180 days following the subject accident (see Larkin v Goldstar Limo Corp., 46 A.D.3d 631, 632 [2d Dept 2007], citing Sainte-Aime v Ho, 21A A.D.2d 569 [2d Dept 2000]; Nunez v Motor Veh Ace. Indem. Corp., 96 A.D.3d 917, 919 [2d Dept 2012]). Plaintiff has not submitted objective evidence that the medically-determined injury she sustained prevented her from performing her usual and customary activities for 90 of the 180 days following the subject accident. A plaintiffs mere assertion that he or she returned to work on "limited light duty" (see Thomas v City o/New York, 99 A.D.3d 580 [1st Dept 2012]) or on a"reduced work schedule" (Perez v Corr, 84 A.D.3d 646 [1st Dept 2011]), has been held insufficient to raise a triable issue of fact (see also DeFilippo v White, 101 A.D.2d 801 [2d Dept 1984]). Plaintiffs recitation of activities that now she finds more difficult is not enough: "Even assuming that plaintiffs self-serving testimony and affidavit sufficiently allege that she was unable to perform substantially all of her regular activities for the required period of time, such conclusion is not supported by [her submitted medical] records" (Larrabee v Bradshaw, 96 A.D.3d 1257, 1261 [3d Dept 2012]).
Since plaintiffs have not offered the necessary evidence creating an issue of fact as to either the 90/180 category or the significant limitation category, defendant's motion seeking summary judgment dismissing the personal injury cause of action for failure to satisfy the serious injury threshold is granted.
As to the property damage cause of action, defendant submits photographs which plaintiff Tatiana Panich testified portray plaintiffs' vehicle after the accident, which photographs appear to show, at worst, minor scratches and the rear bumper slightly detached from the body of the vehicle. Defendant asserts that Oleg Panich has made no attempts to prosecute his property damage claim, failing to provide any itemization of his alleged damages, or to testify as to his damages claim. Plaintiff has submitted nothing in opposition to defendant's motion with regard to this cause of action, and consequently, no question of fact has been shown to exist. This branch of defendant's motion must therefore be granted as well.
Based upon the foregoing, it is hereby, ORDERED that defendant's motion for summary judgment is granted, and the complaint is dismissed.
This constitutes the Decision and Order of the Court.