Opinion
9775 Index 308501/12
06-27-2019
Naomi POUCHIE, Plaintiff-Appellant, v. Sandra PICHARDO, et al., Defendants-Respondents.
Spiegel & Barbato, LLP, Bronx (Stephen A. Iannacone of counsel), for appellant. Sweetbaum & Sweetbaum, Lake Success (Joel A. Sweetbaum of counsel), for Sandra Pichardo, respondent. Russo & Tambasco, Melville (Susan J. Mitola of counsel), for Ronald Harrison, respondent. Robert D. Grace, Brooklyn, for Edgar Feijoo, respondent.
Spiegel & Barbato, LLP, Bronx (Stephen A. Iannacone of counsel), for appellant.
Sweetbaum & Sweetbaum, Lake Success (Joel A. Sweetbaum of counsel), for Sandra Pichardo, respondent.
Russo & Tambasco, Melville (Susan J. Mitola of counsel), for Ronald Harrison, respondent.
Robert D. Grace, Brooklyn, for Edgar Feijoo, respondent.
Friedman, J.P., Gische, Kapnick, Singh, JJ.
Defendants failed to meet their prima facie burden as to plaintiff's claim that she sustained post-traumatic stress disorder and panic attacks as a result of the accident, since they submitted no evidence in connection with those claims nor otherwise challenged them (see Singer v. Gae Limo Corp., 91 A.D.3d 526, 527, 937 N.Y.S.2d 39 [1st Dept. 2012] ). Accordingly, the burden did not shift to plaintiff on that issue. However, defendants established prima facie that plaintiff did not sustain permanent or significant injuries to her cervical spine, lumbar spine, or right shoulder through the reports of their expert orthopedist and neurologist, who found negative clinical test results and normal range of motion in both sections of the spine, and in the right shoulder (see e.g. Castro v. DADS Natl. Enters., Inc., 165 A.D.3d 601, 601, 87 N.Y.S.3d 18 [1st Dept. 2018] ; Alverio v. Martinez, 160 A.D.3d 454, 454, 74 N.Y.S.3d 525 [1st Dept. 2018] ). As to the claimed cervical spine and right shoulder injuries, defendants also established prima facie that the injuries were not causally related to the accident through the report of their radiologist, who opined that plaintiff's MRIs showed conditions that were longstanding, chronic and degenerative in nature (see e.g. Auquilla v. Singh, 162 A.D.3d 463, 463, 78 N.Y.S.3d 323 [1st Dept. 2018] ).
In opposition, plaintiff raised an issue of fact as to causation of her cervical spine and right shoulder injuries by submitting an earlier report prepared by defendant's expert orthopedist, in which she concluded, based on her review of plaintiff's medical records and examination of plaintiff, that these injuries were causally related to the accident. This opinion, which contradicts both her later conclusion and the opinion of defendant's radiologist, raises an issue of fact as to causation (see Johnson v. Salaj, 130 A.D.3d 502, 502–503, 13 N.Y.S.3d 418 [1st Dept. 2015] ). Concerning her right shoulder claim, plaintiff raised an issue of fact through the report of her treating orthopedic surgeon who documented limitations in range of motion, recounted his direct observations of plaintiff's injuries during surgery, and causally related them to the accident, disagreeing with defendant's radiologist (see Liz v. Munoz, 149 A.D.3d 646, 53 N.Y.S.3d 276 [1st Dept. 2017] ; Bux v. Pervez, 156 A.D.3d 550, 551, 68 N.Y.S.3d 67 [1st Dept. 2017] ; Hazel v. Colon, 136 A.D.3d 483, 24 N.Y.S.3d 307 [1st Dept. 2016] ). Concerning her cervical spine claim, plaintiff submitted the report of her treating physiatrist, who also documented limitations in range of motion and, while acknowledging the existence of arthritis and degeneration, opined that the accident exacerbated and aggravated the condition (see Ortiz v. Boamah, 169 A.D.3d 486, 488, 93 N.Y.S.3d 311 [1st Dept. 2019] ). Plaintiff's medical records, including MRI reports prepared about three months after the accident, provide evidence of contemporaneous treatment, supporting plaintiff's claim of serious injury within the meaning of the statute (see Vishevnik v. Bouna, 147 A.D.3d 657, 659, 48 N.Y.S.3d 93 [1st Dept. 2017] ; Salman v. Rosario, 87 A.D.3d 482, 484, 928 N.Y.S.2d 531 [1st Dept. 2011] ).
Plaintiff submitted no admissible medical evidence concerning her lumbar spine injury, and therefore failed to raise an issue of fact as to whether that constituted a serious injury (see Santana v. Centeno, 140 A.D.3d 437, 438, 33 N.Y.S.3d 230 [1st Dept. 2016] ; Singer, 91 A.D.3d at 526, 937 N.Y.S.2d 39 ). Should a jury determine that plaintiff has met the threshold for serious injury, it may award damages for all of her injuries causally related to the accident, even those not meeting the serious injury threshold ( Santana, 140 A.D.3d at 438, 33 N.Y.S.3d 230 ; Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549, 898 N.Y.S.2d 110 [1st Dept. 2010] ).
Finally, defendants established their entitlement to dismissal of plaintiff's 90/180–day claim by relying on her deposition testimony, in which she admitted that she was not confined to home immediately following the accident (see e.g. Echevarria v. Ocasio, 135 A.D.3d 661, 662, 24 N.Y.S.3d 272 [1st Dept. 2016] ; Dennis v. New York City Tr. Auth., 84 A.D.3d 579, 579, 923 N.Y.S.2d 473 [1st Dept. 2011] ). In opposition, plaintiff did not submit any medical or other documentary proof in support of her claim that she could not return to work and was confined to home following the accident (see Martin v. Portexit Corp., 98 A.D.3d 63, 68, 948 N.Y.S.2d 21 [1st Dept. 2012] ; Rosa–Diaz v. Maria Auto Corp., 79 A.D.3d 463, 464, 913 N.Y.S.2d 51 [1st Dept. 2010] ).