Opinion
Index No. 151176/2019
05-17-2022
Aejin PARK, Plaintiff, v. Kuldeep SAINI, John Doe, Defendant.
PLAINTIFF, Jeffrey Kim, Esq., 42-40 Bell Blvd., Suite 402, Bayside, NY 11361 DEFENDANT, Summer Tinnie, Esq., Baker McEvoy & Moscovits, P.C., Attorneys for Defendant Kuldeep Saini, 1 MetroTech Center, 8th Floor, Brooklyn, NY 11201
PLAINTIFF, Jeffrey Kim, Esq., 42-40 Bell Blvd., Suite 402, Bayside, NY 11361
DEFENDANT, Summer Tinnie, Esq., Baker McEvoy & Moscovits, P.C., Attorneys for Defendant Kuldeep Saini, 1 MetroTech Center, 8th Floor, Brooklyn, NY 11201
James G. Clynes, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 were read on this motion to/for JUDGMENT - SUMMARY.
This is a negligence action, in which plaintiff Aejin Park seeks damages for personal injuries that she allegedly sustained on November 26, 2018, when she was riding a bike and struck from behind by defendant Kuldeep Saini's vehicle, a yellow cab, and knocked to the ground. After the accident, plaintiff was transported by ambulance to NYU Langone Health for treatment of lower back, neck, chest, right elbow, right shoulder, and right knee pain resulting from the accident. Plaintiff alleges that her injuries resulted in "serious injuries" as that term is defined in Insurance Law § 5102.
Defendant now moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint on the ground that plaintiff cannot meet the serious injury threshold requirement as mandated by Insurance Law § 5102 (d).
For the reasons set forth below, defendant's motion for summary judgment is denied.
DISCUSSION
" ‘[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact’ " ( Ayotte v Gervasio , 81 NY2d 1062, 1063 [1993] [citation omitted]; Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851 [1985] ). The burden is a heavy one: the facts must be viewed in the light most favorable to the non-moving party and every available inference must be drawn in the non-moving party's favor ( Sherman v New York State Thruway Auth. , 27 NY3d 1019, 1021 [2016] ). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" ( Winegrad , 64 NY2d at 853 ; see also Lesocovich v 180 Madison Ave. Corp. , 81 NY2d 982 [1993] ).
The party opposing summary judgment has the burden of presenting evidentiary facts sufficient to raise triable issues of fact ( Zuckerman v City of New York , 49 NY2d 557, 562 [1980] ; CitiFinancial Co. [DE] v McKinney , 27 AD3d 224, 226 [1st Dept 2006] ). The court is required to examine the evidence in a light most favorable to the party opposing the motion ( Martin v Briggs , 235 AD2d 192, 196 [1st Dept 1997] ). Summary judgment is a drastic remedy that may be granted only when it is clear that no triable issues of fact exist ( Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986] ), and "should not be granted where there is any doubt as to the existence of a triable issue" of fact ( American Home Assur. Co. v Amerford Intl. Corp. , 200 AD2d 472, 473 [1st Dept 1994] ; accord Birnbaum v Hyman , 43 AD3d 374, 375 [1st Dept 2007] ).
Plaintiff alleges that she sustained "serious injuries," as that term is defined in Insurance Law § 5102 (d) (see complaint, [NYSCEF Doc No. 1], ¶ 9). In the Verified Bill of Particulars (NYSCEF Doc No. 22), plaintiff alleges that she sustained soft tissue injuries to her cervical spine, lumbar spine and right shoulder. Plaintiff claims that these allegations constitute serious injuries under the applicable categories of the statute.
" ‘Under New York's No-Fault Law, an injured party's right to bring a personal injury action for noneconomic losses ... arising out of an automobile accident is limited to those instances where such individual has sustained a serious injury’ " ( Mesiti v Martin , 190 AD3d 1145, 1146 [3d Dept 2021 [citation omitted] ; see Insurance Law § 5102 [d] ). Under Insurance Law § 5102 (d), a serious injury includes, as is relevant here:
"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 90 days during the 180 days immediately following the occurrence of the injury or impairment."
"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 of qualitative nature of an injury based on the normal function, purpose and use of the body part" ( Dufel v Green , 84 NY2d 795, 798 [1995] [citations omitted]; accord Toure v Avis Rent A Car Sys. , 98 NY2d 345, 353 [2002] ).
On a motion for summary judgment, the defendant bears the initial burden of establishing, through competent medical evidence, that the plaintiff did not sustain a serious injury as a result of the subject accident (see Antepara v Garcia , 194 AD3d 513, 513 [1st Dept 2021] ; Cohen v Bayer , 167 AD3d 1397, 1398 [3d Dept 2018] ). If this threshold burden is met, the plaintiff must come forward with objective medical evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury ( Toure , 98 NY2d at 350-352 ; see Cortez v Bray , 192 AD3d 451, 451 [1st Dept 2021] ). Specifically, a plaintiff must show proof of (1) contemporaneous treatment — quantitative or qualitative — establishing that the plaintiff's injuries were causally related to the accident; and (2) a recent examination establishing the permanency of the injuries (see Perl v Meher , 18 NY3d 208, 217-218 [2011] [no requirement for contemporaneous quantitative measurements, treating doctor may observe and record plaintiff's symptoms in qualitative terms, and later do more specific quantitative measurements in anticipation of litigation]).
In support of his motion for summary judgment, defendant submits the affirmed medical report of Pierce Ferriter, MD, an orthopedist (NYSCEF Doc No. 23), as well as the transcript of plaintiff's deposition testimony given on October 25, 2019 (NYSCEF Doc No. 24). Defendant argues, based upon the Dr. Ferriter's report and plaintiff's deposition testimony, that plaintiff's allegations of injury are unsubstantiated, and cannot meet the statutory threshold requirements of "serious injury", under any of the applicable categories.
Plaintiff's deposition testimony establishes that an ambulance was called to the scene of the accident, and that she was taken to NYU Langone Health (see pl dep at 55, 63-64). Plaintiff testified that, thereafter, she underwent physical therapy for approximately eight months, setting forth a cessation (see id. at 80). Plaintiff further testified that that she was confined to her bed for approximately one week after the date of accident (see id. at 108-109, 111).
On December 16, 2019, Dr. Ferriter performed an orthopedic examination on plaintiff. Dr. Ferriter found plaintiff's injuries to her cervical spine sprain/strain to be resolved, with normal range of motion and negative objective testing. Specifically, Dr. Ferriter found that inspection of the spine revealed no swelling, discoloration, or deformity. Dr. Ferriter also found no muscle spasm upon palpation of the paracervical muscles. Dr. Ferriter further found that active range of motion revealed flexion to 50 degrees (50 degrees normal), extension to 60 degrees (60 degrees normal), right lateral flexion to 45 degrees (45 degrees normal), left lateral flexion to 45 degrees (45 degrees normal), right rotation to 80 degrees (80 degrees normal) and left rotation to 80 degrees (80 degrees normal).
Dr. Ferriter concluded that plaintiff presented with a normal orthopedic examination on all objective testing, and that the orthopedic examination was objectively normal, and indicated no findings which would result in orthopedic limitations in use of the body parts examined. Dr. Ferriter further concluded that plaintiff is capable of functional use of the examined body parts for normal activities of daily living, as well as usual daily activities, including work duties. Dr. Ferriter did not review any of plaintiff's medical records, stating that "[t]here were no actual medical records for my review" (Ferriter report at 3).
This proof satisfies defendant's initial prima facie burden of establishing, by competent medical evidence, that plaintiff did not sustain a serious injury caused by the accident (see Toure , 98 NY2d at 250-352). Defendant's orthopedist's findings of normal range of motion, negative objective testing and resolved injuries, establishes his prima facie case with respect to whether plaintiff sustained a "serious injury" (see Antepara , 194 AD3d at 513 ; Blumenberg v Lora , 193 AD3d 445 [1st Dept 2021] ; Cortez , 192 AD3d at 451 ; Tarjavaara v Considine , 188 AD3d 509, 510 [1st Dept 2020] ; see e.g. Brownie v Redman , 145 AD3d 636, 637 [1st Dept 2016] ["Defendants made a prima facie showing that plaintiff did not sustain a serious injury to her left knee by submitting the report of an orthopedist, who found no objective evidence of disability and full range of motion"]).
In opposition, plaintiff raises triable issues of fact as to whether she suffered permanent or significant injuries causally related to the underlying automobile accident, by submitting the medical reports of physicians who examined and treated her in the aftermath of the accident, quantifying persistent and significant limitations of movement, as well as her medical records, her affidavit, and relevant portions of her deposition (see Reyes v Se Park , 127 AD3d 459 [1st Dept 2015] ).
Plaintiff alleges that she was hit by a taxicab while on a bicycle and knocked to the ground, and that she immediately felt pain to her chest, right shoulder, right elbow, right knee/leg, lower back, neck and head (Park aff [NYSCEF Doc No. 31], ¶ 2). She further alleges that she experienced pain, numbness, weakness and tingling in those areas of her body (id. ).
From the accident scene, plaintiff was transported by ambulance to NYU Langone Health emergency room for lower back, neck, chest, right elbow, right shoulder, and right knee pain resulting from the accident (plaintiff's dep at 56, 63, 64 and 66; see also Park aff, ¶ 4). At the hospital, plaintiff was examined, treated and released, with instructions to follow-up with doctors (Park aff, ¶ 4; see NYU hospital records [NYSCEF Doc No. 33]).
Shortly after the accident, plaintiff was examined by Jinghui Xie, MD, an orthopedist. Dr. Xie noted that, during her initial evaluation for pain management on December 20, 2018, plaintiff's chief complaints included pain in the lower back, neck, right shoulder and mid back (Xie affirmation [NYSCEF Doc No. 36], ¶ 4). Dr. Xie performed a musculoskeletal and spine exam, and found significant limitations in her range of motion. Specifically, Dr. Xie found that her cervical range of motion was decreased secondary to pain, with flexion at 30 degrees, extension at 30 degrees, left lateral rotation at 45 degrees, right lateral rotation at 45 degrees, left flexion at 30 degrees, and right flexion at 30 degrees (id. , ¶ 11). Dr. Xie also found that her lumbar range of motion was decreased secondary to pain, with flexion at 50 degrees, extension at 0 degrees, left lateral rotation at 20 degrees, right lateral rotation at 20 degrees, left flexion at 5 degrees and right flexion at 5 degrees (id. ). Dr. Xie likewise found that the range of motion in her right upper arm and shoulder was decreased secondary to pain (id. ).
Subsequently, plaintiff went to a clinic and was evaluated by Dr. Thomas Nguyen, a chiropractor, and underwent acupuncture, chiropractic and physical therapy treatments for approximately 8 months (plaintiff's dep at 74-80; see clinic records [NYSCEF Doc No. 36]). Plaintiff alleges that, throughout the course of active treatment at that clinic, she underwent various examinations, including MRIs at Precision Accelerad, and nerve tests called NCV/EMG (id. , ¶ 7; see also plaintiff's dep at 83).
Plaintiff submits the Physician's Affirmation of radiologist Siddharth Praksh, MD, of Precision Accelerad, which sets forth his findings with respect to plaintiff's MRIs (see NYSCEF Doc No. 35). Dr. Praskh avers that he performed MRI examinations of plaintiff's lumbar spine on December 28, 2018, as well as MRI examinations of her right shoulder and cervical spine on December 26, 2018. His diagnosis with respect to plaintiff's lumbar spine is as follows:
"Grade 1 retrolisthesis and broad-based central posterior disc herniation with annular tear at L4-L5 indenting the thecal sac, lateral recesses, and foramina with bilateral facet inflammation.
Straightening of the normal lordosis, which may be secondary to spasm"
(Praskh affirmation, ¶ 5).
Dr. Praskh's diagnosis of plaintiff's cervical spine is as follows:
"Broad-based central posterior disc herniations at CS-C4 and C4-C5 indenting the thecal sac and neural foramina abutting the exiting left C5 nerve root at C4-C5 with an annular tear. Please correlate for radiculopathy in this distribution. An EMG may be beneficial for assessment.
Broad-based central posterior disc herniation at C5-C6 causing spinal canal stenosis, cord impingement, and foraminal narrowing, abutting the exiting left C6 nerve root, without myelamalacia.
Left paracentral broad-based disc herniation at C6-C7 indenting the thecal sac and left foramina abutting exiting left C7 nerve root.
Straightening of the normal lordosis, which may be secondary to spasm"
(id. , ¶ 6).
Dr. Praskh's diagnosis of plaintiff's right shoulder is as follows:
"Partial-thickness undersurface anterior supraspinatus tendon insertional tear.
Long head biceps tenosynovitis and glenohumeral joint effusion"
(id. , ¶ 7).
Plaintiff alleges that she continued to follow-up with Dr. Xie for continued pain, acute at times, in the lower back, neck, right shoulder and mid back, and that Dr. Xie performed in-depth evaluations and examinations during the course of her medical treatment (Park aff, ¶ 5). Plaintiff alleges that she was experiencing horrific pain in her neck, and numbness (id. ). At Dr. Xie's recommendation, she attended physical therapy and acupuncture, and underwent multiple trigger point injections under ultrasound guidance to her lower back (id. , ¶ 6). She alleges that, although her lower back pain has gotten somewhat better, her neck pain is constant and persistent (id. ). Not finding much relief from sharp shooting neck pain, even from steroid injections to her neck (cervical interlaminal epidural injection at C6-C7), she decided, at Dr. Xie's recommendation, to have surgery to her neck under anesthesia (percutaneous cervical discectomy and decompression of C4-5 and C5-6) (id. ; see NYSCEF Doc No. 36 [medical records and operative reports documenting the evaluation, examinations and treatments underwent by plaintiff]).
Dr. Xie recently examined plaintiff, on November 22, 2021. With respect to plaintiff's neck injury, Dr. Xie correlates the MRI findings of "disc herniations at C3-4 and C4-5 indenting the thecal sac and neural foramina, abutting the exiting left C5 nerve root at C4-5 with annular tear," and "disc herniation at C5-6 causing spinal canal stenosis, cord impingement, and foraminal narrowing, abutting the exiting nerve root" to the accident (see Xie affirmation, ¶ 14). After examining plaintiff, Dr. Xie found continuing significant limitations in the ranges of motion of plaintiff's cervical spine, as well as of the lumbar spine and right shoulder (id. , ¶ 12).
With respect to causation, Dr. Xie specifically avers that "[b]ased on the information available to me, to a reasonable degree of medical certainty, there is causal relationship between Ms. Park's condition and her accident on 11/26/2018" (id. at ¶ 17). With respect to plaintiff's injuries, Dr. Xie reached the following conclusions:
"I found the injuries which AEJIN PARK suffered to be serious and permanent in nature. After interviewing AEJIN PARK and performing various range of motion tests, I am convinced within a reasonable degree of medical certainty that AEJIN PARK is not expected to be able to perform daily activities of living in a full, complete, continuous and pain-free environment as she did prior to the accident of November 26, 2018.
It is my opinion that AEJIN PARK has suffered a definite permanent partial disability to her neck, lower back and right shoulder of which degree of symptoms and improvement is not expected to occur beyond her present state.
It is also my opinion that the injuries which AEJIN PARK sustained to her neck, lower back and right shoulder as a result of the November 26, 2018 auto accident are of a permanent nature"
(id. , ¶¶ 19-21).
Plaintiff alleges that, since the day of the accident, she has not felt the same as she did before the accident, and that the injuries which she sustained in the accident, especially her neck, are ongoing, despite therapies, injections and surgeries (Park aff, ¶ 8). Plaintiff further alleges that there are many activities which she is extremely limited in performing, due to her neck pain, as well as her limited mobility in her neck, lower back and right shoulder (id. , ¶ 9). Specifically, she has difficulty performing household chores, such as vacuuming, mopping, dusting, and can no longer lift heavy objects (id. , ¶ 10). Plaintiff alleges that, before the accident, exercising and rigorous physical activities, such as skiing and swimming, were a big part of her life, but that she is no longer able to participate in these activities (id. , ¶ 11).
Plaintiff's submissions are sufficient to raise triable issues of fact as to whether she sustained significant and consequential limitations of use as a result of the accident (see Gordon v Hernandez , 181 AD3d 424, 425 [1st Dept 2020] ; De Los Santos v Basilio , 176 AD3d 544, 545 [1st Dept 2019] ; Hamilton v Marom , 178 AD3d 424, 425 [1st Dept 2019] ).
The reports of Dr. Xie and Dr. Praskh satisfy the requirement of a contemporaneous quantitative and qualitative evaluation, describing plaintiff's treatment shortly after the emergency room visit, and her quantified limitations, as compared to normal ranges of motion. Dr. Xie found that, on qualitative terms, plaintiff had lower back pain radiating to her bilateral lower extremities, as well as neck and right shoulder pain, with soreness, stiffness and spasming (see Xie affirmation, ¶¶ 4-6). On quantitative terms, range of motion testing was performed and, as previously discussed, significant limitations in range of motion were found (see id. , ¶ 11). These injuries were objectively confirmed by plaintiff's MRI examination, which found disc herniation (see Praskh affirmation, ¶¶ 5-6).
Dr. Xie's affirmation documents an additional recent assessment and shows quantified continuing limitations of motion (see Xie affirmation, ¶ 12). Dr. Xie also opines that plaintiff's injuries are causally related to the accident (see id. , ¶ 19).
All of these submissions are sufficient to raise issues of fact, requiring denial of the motion (see Marcelo v Fabius , 195 AD3d 472, 472-473 [1st Dept 2021] [plaintiff sufficiently raised an issue of fact as to whether her injuries were significant, permanent and causally related to the automobile accident by providing contemporaneous proof of treatment by her physician the day after the accident, which documented limitations in range of motion, as well as the affirmed report of a physician who found continuing significant limitations in range of motion and who opined that plaintiff's injuries were causally related to accident]; Gordon , 181 AD3d at 424-425 [plaintiff raised fact issue as to permanent and significant injury by submitting report of pain management specialist, finding restricted range of motion shortly after accident and in recent exam, and opining that the injuries were causally related to accident]; De Los Santos , 176 AD3d at 545 [plaintiff's doctors’ reports providing quantified range of motion restrictions compared to normal held sufficient to show continuing limitations]; Montoya v Rosenberger , 176 AD3d 581, 581-582 [1st Dept 2019] [contemporaneous treatment shown establishing causal link]; Hamilton , 178 AD3d at 425 [limitations of motion found by plaintiff's treating orthopedist who opined there was a causal relationship between injuries and accident]).
Although defendant argues that the medical evidence that he presented shows that "plaintiff's allegations of injury were not caused in this minor accident [and] that no trauma was sustained" (moving affirmation of Summer Tinnie, Esq. [NYSCEF Doc No. 19], ¶ 18), Dr. Ferriter admits that he has not reviewed any of plaintiff's treatment records or surgical reports (see Ferriter report at 3). Importantly, plaintiff's physician, Dr. Xie, makes a causal connection between the accident and plaintiff's injuries. Moreover, plaintiff specifically averred that, before the accident, she did not have any symptoms of pain in or injuries to her neck, lower back or right shoulder (Park aff, ¶ 16). These submissions are also sufficient to raise an issue of fact, requiring denial of defendant's motion (see Massillon v Regalado , 176 AD3d 600, 601 [1st Dept 2019] [although defendant's radiologist opined that the conditions were degenerative, plaintiff refuted with a contemporaneous MRI and plaintiff's treating doctors’ opinions that the conditions were causally related to the accident]; Montoya , 176 AD3d at 582 [where no reported prior injury and onset of symptoms shortly after accident, plaintiff's treating doctor's opinion that conditions were causally related to the accident sufficiently raised an equally plausible cause of the injuries]).
With respect to the 90/180 days category of serious injury, to make a prima facie case, the defendant must either point to medical evidence that the plaintiff did not sustain a medically determined injury that prevented him or her from performing substantially all of his or her customary daily activities within the relevant period (see Fernandez v Fernandez , 151 AD3d 581, 582 [1st Dept 2017] ; Frias v Gonzalez-Vargas , 147 AD3d 500, 502 [1st Dept 2017] ), or to evidence that plaintiff actually performed her usual and customary activities (see Bianchi v Mason , 179 AD3d 567, 568 [1st Dept 2020] ; Olivare v Tomlin , 187 AD3d 642, 643 [1st Dept 2020] ).
Although defendant argues that his "proof ruled out the 90/180 day category of the statute" because "this category requires proof that plaintiff was medically prevented from performing ‘substantially all’ of [her] usual and customary activities for the requisite period" (see Tinnie affirmation, ¶ 25), defendant fails to provide any facts or argument supporting this prong of the Insurance Law. As a result, the motion with respect to this prong is denied (see Robinson v Joseph , 99 AD3d 568, 569 [1st Dept 2012] [finding that defendants "failed to meet their initial burden as to plaintiff's 90/180-day claim, since they relied only on the reports of their medical experts who did not examine plaintiff during the relevant statutory period and did not address plaintiff's condition during the relevant period"]).
Finally, defendant argues that plaintiff's course of treatment also belied a claim of serious injury, as it shows a "cessation" in treatment, and that plaintiff is obligated to furnish the court with an explanation for the lack of treatment (see Pommells v Perez , 4 NY3d 566, 574 [2005] ["a plaintiff who terminates therapeutic measures following the accident, while claiming ‘serious injury,’ must offer some reasonable explanation for having done so"]).
Here, the record raises triable issues of fact as to whether plaintiff has offered "some reasonable explanation" for the cessation of physical therapy treatment for her injury. Plaintiff alleges that "[a]lthough I am currently not treating actively due to the fact that No-Fault insurance has stopped paying for the treatments, I am still attempting to self-treat by getting massages, applying pain relief patches, heat and ice and doing home exercises" (Park aff, ¶ 15).
This allegation is sufficient to raise issues of fact, requiring denial of the motion (see Ramkumar v Grand Style Transp. Enters., Inc. , 22 NY3d 905, 906-907 [2013] [plaintiff's statement that no-fault benefits were terminated, and that he did not have private insurance to cover continued treatment, raised triable issue of fact]; Pommels , 4 NY3d at 577 [where further therapy would only be palliative in nature, gap sufficiently explained]; Wadford v Gruz , 35 AD3d 258, 258-259 [1st Dept 2006] [finding expiration of no-fault benefits as sufficient to raise an issue of fact]).
Accordingly, defendant's motion for summary judgment is denied.
This constitutes the Decision and Order of the Court.