Opinion
INDEX NO. 520872/2017
07-24-2020
KRISTINA G. PONTEE, Plaintiff, v. MUHAMMAD A. CHATHA, Defendant
NYSCEF DOC. NO. 30 At an IAS Trial Term, Part 13, of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 24th day of July, 2020. PRESENT: HON. BRUCE M. BALTER, Justice. The following e-filed papers read herein:
| Notice of Motion, Affirmation and Annexed Exhibits | 11-17 |
|---|---|
| Opposing Affirmation and Annexed Exhibits | 28-29 |
New York State Courts Electronic Filing Document Number
Upon the foregoing papers, defendant Muhammad A Chatha (Chatha) moves, in motion (mot.) sequence (seq.) one, for an order, pursuant to CPLR 3212, granting him summary judgment dismissing the claims of plaintiff, Kristina G Pontee (Pontee), on the grounds that she cannot meet the serious injury threshold requirement mandated by Insurance Law §§ 5104 (a) and 5102 (d). Plaintiff opposes.
Background Facts and Procedural History
The instant action arises from a July 13, 2017 automobile accident between the parties in which Ms. Pontee allegedly suffered injuries. According to plaintiff, she was pulling out of a parking spot on Coney Island Avenue when a vehicle Mr. Chatha drove struck her car on the front driver's side. Her head hit the steering wheel, her right knee hit the console, and her left shoulder hit the window. She sought medical attention several days later as her head, knee, shoulder, and back were hurting. Subsequently, Ms. Ponte received physical therapy and underwent surgery on September 21, 2017 for a torn meniscus in her right knee, and was still complaining of frequent pains in her right knee and lower back and of headaches at her deposition (see NYSCEF Doc. No. 15, plaintiff's deposition tr at 54, lines 2-8, annexed as exhibit C to Mr. Chatha's mot. seq. one papers). She took minimal time off from work due to her injuries but claims that she can no longer jog around the house, do laundry, or do the shopping for her household.
Filing of a summons and complaint on October 27, 2017 commenced the instant lawsuit, and issue was joined the following month by the filing of an answer on Mr. Chatha's behalf. A preliminary conference, compliance conference, and final pre-note conference were all held and a note of issue filed on April 9, 2019. Mr. Chatha thereafter timely filed the instant summary judgment motion.
Analysis
It is well settled that "the 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], citing Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zapata v Buitriago, 107 AD3d 977 [2d Dept 2013]). Failure to make such a showing requires denying the motion, regardless of the sufficiency of the opposition papers (see Alvarez, 68 NY2d at 324; see also, Smalls v AJI Indus., Inc. (10 NY3d 733, 735 [2008]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material factual issues which require a trial of the action (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Summary judgment "should not be granted where there is any doubt as to the existence of such issues or where the issue is 'arguable'; issue-finding, rather than issue-determination, is the key to the procedure" (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], rearg denied 3 NY2d 941 [1957]) [internal citations omitted]). "The court's function on a motion for summary judgment is 'to determine whether material factual issues exist, not resolve such issues'" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010] quoting Lopez v Beltre, 59 AD3d 683, 685 [2d Dept 2009]). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . on a motion for summary judgment" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 315 [2004], quoting Anderson v Liberty Lobby, Inc., 477 US 242, 255 [1986]; see also Scott v Long Is. Power Auth., 294 AD2d 348, 348 [2d Dept 2002]).
Pursuant to Insurance Law § 5104 (a),
"[n]otwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss."Insurance Law, § 5102 (d) defines "serious injury," in relevant part, as
"a personal injury which results in ... 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 addition, case law recognizes that:
"[A] defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim. With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. The plaintiff in such a situation must present objective evidence of the injury" (Grossman v. Wright, 268 AD2d 79, 83-84 [2d Dept 2000][internal citations omitted]).
"In order to prove serious injury under the 90-out-of-180-day rule, plaintiff must prove that she was curtailed from performing her usual activities to a great extent rather than some slight curtailment" (Gaddy v. Eyler, 79 NY2d 955, 958 [1992][internal citation and quotation marks omitted]). A prompt return without limitation to work - that is, the ability to maintain one's prior daily routine for most of the day - strongly suggests that the injured party was not prevented from performing substantially all of her daily activities for the period following the accident (John v. Linden, 124 AD3d 598, 599 [2d Dept 2015]; Richards v Tyson, 64 AD3d 760 [2d Dept 2009]; see also, Gaddy, 79 NY2d at 958; Licari v. Elliott, 57 NY2d 230, 238 [1982]). Here, the accident occurred on a Thursday, and Ms. Pontee returned to work at the beginning of the following week, having missed one working day. Even taking into account the additional two days of work she missed for surgery, the record strongly suggests that she her usual activities were not greatly curtailed for 90 of the 180 days following the accident.
It is well settled that establishing a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system requires medical evidence providing either a quantitative or qualitative assessment. Indeed, the Court of Appeals in Toure v. Avis Rent A Car Systems, Inc, 98 NY2d 345, 350 [2002]) explained that in seeking objective evidence
"to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury. An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system."
Correspondingly, it is also well established that "[a] defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)" (Kearse v. New York City Tr. Auth., 16 AD3d 45, 49-50 [2d Dept 2005]).
The Court of Appeals subsequently addressed a plaintiff's burden opposing a defendant's challenge to a serious injury claim and refined applying the quantitative approach by its unanimous ruling in Perl v Meher (18 NY3d 208 2011]). There, it held (id. at 217) that "[u]nder the "quantitative" prong of Toure ... numerical measurements are sufficient to create an issue of fact as to the seriousness of [plaintiffs'] injuries." The decision mentioned that Perl's doctor at his initial examination following the accident had only generally observed that Perl's range of motion restriction was "less than 60% of normal in the cervical and lumbar spine" (id. at 217). However, the decision recognized that the doctor again examined him "years later, using instruments to make specific, numerical range of motion measurements" (id.). The Perl decision emphasized that Toure required no quantitative measurements "contemporaneous" to the accident demonstrating restricted range of motion, "and we see no justification for it" (id.). The decision directly states in this regard that "We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery" (id. at 218). Hence, more recent findings suffice.
Here, Mr. Chatha offers the affirmations of Drs. Jeffrey Guttman, M.D. and Scott Springer, D.O. in support of her motion. Dr. Guttman, an orthopedist, examined Ms. Pontee and reviewed pertinent medical records. He found that she had full range of motion of her leg, spine, and shoulder and that the various tests he conducted yielded normal results. Dr. Guttman thus concluded that there was no objective medical evidence of traumatic injury from the accident and no objective clinical findings indicating present disability and functional impairment. Dr. Springer, a radiologist, examined the MRIs of Ms. Pontee's cervical and lumbar spines and right knee and concluded that the damage seen therein resulted from pre-existing degeneration. Mr. Chatha thus presents a prima facie case.
However, Ms. Pontee, presents the affirmation of her treating physician, Dr. Yvette Davidov, M.D., who recounts that she treated her shortly after the accident and that there were a variety of injuries suffered that were causally attributable to the accident. Dr. Davidov further states that, after Dr. Guttman's and Dr. Springer's examinations, she performed tests upon Ms. Pontee on July 17, 2019, two years after the accident, and found her range of motion remained substantially impaired as a result of the July 17, 2019 accident. Furthermore, Dr. Davidov personally reviewed the MRI films and agrees with the radiologist's findings which included right knee medial menisci tear and cervical and lumbar disc herniation with nerve impingement. She also stressed that the injuries from Ms, Ponte's 2013 auto accident had fully resolved before the 2017 accident and she was fully functioning and asymptomatic before the 2017 accident. Dr. Davidov opined that the 2017 accident exacerbated her condition and that her right knee "surgery as well as the restrictions in the knee, are causally related to this auto accident (see NYSCEF Doc. No. 28, at 15th unnumbered page, ¶¶ 74-76, annexed as exhibit A to Ms. Pontee's opposition papers in mot. seq. one).
More specifically, Dr. Davidov reports (see NYSCEF Doc. No. 28, at 14th unnumbered page, ¶¶ 65-70, annexed as exhibit A to Ms. Pontee's opposition papers in mot. seq. one) Ms. Pontee's cervical spine ranges of motion as flexion 35 degrees (normal is 60 degrees), extension is 40 degrees (60 is normal), right side bending is 30 degrees (40 is normal), left side bending is 30 degrees (40 is normal), right rotation is 45degrees (80 is normal), and left rotation is 45degrees (80 is normal).
In addition, Dr. Davidov reports Ms. Pontee's lumbar spine ranges of motion as flexion 30 degrees (normal is 60 degrees), extension is 10 degrees (25 is normal), right side bending is 15 degrees (25 is normal), left side bending is 15 degrees (25 is normal), right rotation is 45degrees (80 is normal), and left rotation is 45degrees (80 is normal).
Dr. Davidov also reports the ranges of motion of Ms. Pontee's right knee, which underwent arthroscopic surgery nearly two years earlier, and nonetheless showed flexion as 110 degrees (130 is normal) and extension -5 degrees (0 is normal). Ms. Pontee's straight leg raising (SLR) was recorded as positive to 60 degrees on the right and 60 degrees on the left (90 degrees is normal).
A series of comparable Appellate Division Second Department decisions presenting similar range of motion restrictions affecting the same body areas as in this case have denied summary judgment citing the Perl decision (see Sepe v Barravecchio, 175 AD3d 1580, 1581 [2d Dept 2019] [50% restrictions in cervical and lumbar spinal regions three and a third years after accident]; Diaz-Montez v JEA Bus Co., Inc., 175 AD3d 1384, 1385-1386 [2d Dept 2019] [33% restriction in extension of right knee two and two-thirds years after accident]; Delp v Guerra, 173 AD3d 681, 682-683 [2d Dept 2019] [range of motion restrictions of up to 40% in cervical and lumbar spinal regions four years after accident]; Kelly v Andrew, 172 AD3d 833, 834 [2d Dept 2019] [22% deficit in flexion of the lumbar region of the plaintiff's spine four years after accident]; Munoz v Salcedo, 170AD3d 735, 736-737 [33% restriction in lumbar flexion nearly four years after accident]; [Kholdarov v Hyman, 165 AD3d 1087, 1088 [2d Dept 2018] [20% deficit in flexion of plaintiff's cervical spine six and a half years after accident]).
The contradictory findings of defendant's and plaintiff's examining physicians present triable factual issues and therefore make summary judgment inappropriate. Accordingly, it is
ORDERED that Mr. Chatha's summary judgment motion, mot. seq. one, is denied.
This constitutes the decision and order of the court.
ENTER
/s/_________
J. S. C.