Opinion
Index No. 035496/2016
05-11-2018
ANNETTE ROMAN, Plaintiff, v. IVY JOSEPH GONTOWNIK, ZEV W. GONTOWNIK, MOAR A. GAYA and KAYE V. FORTSON, Defendants.
Unpublished Opinion
Motion Date: March 21, 2018
DECISION AND ORDER
HON. PAUL I. MARX, J.S.C.
The following papers numbered 1 to 11 were read on: (1) the motion of Defendant Kaye V. Fortson for summary judgment and dismissal of the complaint and all cross-claims on the ground that she is not liable for the occurrence of the accident which gave rise to this action; (2) the motion of Defendants Izzy Joseph Gontownik and Zev W. Gontownik for summary judgment dismissing the complaint and all cross claims on the ground that the injuries allegedly sustained by Plaintiff do not meet the threshold predicates of Insuranee Law S 5102(d); (3) the motion of Defendant Kaye V. Fortson for summary judgment and dismissal of the complaint and all cross-claims on the same ground; and (4) the motion of Defendant Omar A. Gaya for summary judgment and dismissal of the complaint and all cross-claims on the grounds that he is not liable for the occurrence of the accident and because the injuries allegedly sustained by Plaintiff do not meet the threshold predicates of Insurance Law S 5102(d):
Fortson's Motion for Summary Judgment on Liability (Motion Seq. # 1)
Notice of Motion/Affirmation of Thomas R. Mazzaro, Esq./Exhibits A-F..........1-2
Affirmation of Stephen J. Cole-Hatchard, Esq. in Opposition.....................3
Reply Affirmation of Thomas R. Mazzaro, Esq................................4
Gontownik Motion for Summary Judgment re Insurance Law (Motion Seq. # 2)
Notice of Motion/Affirmation of Neil B. Dinces, Esq./Exhibits A-I ............5-6
Affirmation of Courtney Campbell,, Esq. in Opposition/Exhibits 1-5 ...............7
The Affirmation of Courtney Campbell in Opposition responds to Gontownik's Motion and Fortson's Motion regarding Insurance Law § 5102(d) and to Gaya's Motion.
Reply Affirmation of Neil B. Dinces, Esq.....................................8
Fortsons's Motion for Summary Judgment re Insurance Law Motion Seq. # 3)
Notice of Motion/Affirmation of Thomas R. Mazzaro, Esq..........................9
Reply Affirmation of Thomas R. Mazzaro, Esq. .............................. 10
Gaya's Motion for Summary Judgment re Liability and Insurance Law Motion Seq. # 4)
Notice of Motion/Affirmation of Julie Iacobucci, Esq./Exhibits A-E...............11
Upon the foregoing papers it is ORDERED that the motions for summary judgment are disposed as follows:
BACKGROUND
This personal injury action arises out of a chain reaction motor vehicle accident involving four vehicles, which occurred on Friday, March 11, 2016 on State Route 9W, approximately .25 miles south of Old Mountain Road in Orangetown, New York. Plaintiff was en route to work when the gray Honda Accord she was driving (Vehicle #4) was hit in the rear by a Honda Pilot (Vehicle #3) operated by Defendant Kaye V. Fortson at approximately 9:05 a.m. The accident involved two other vehicles, a Porsche (Vehicle #2) operated by Defendant Omar A. Gaya, who was driving behind Fortson's vehicle, and a white Honda Accord (Vehicle #1) operated by Defendant Izzy Joseph Gontownik, who was driving behind Gaya's vehicle. Defendant Zev W. Gontownik is the owner of the white Honda Accord.
The accident occurred when Gontownik's vehicle, Vehicle # 1 in the chain, rear ended Gaya's vehicle, Vehicle # 2, which rear ended Fortson's vehicle, Vehicle # 3, which rear ended Plaintiffs vehicle, Vehicle # 4. The weather was sunny that day. Fortson Motion for Summary Judgment on Liability ("Fortson Liability Motion"), Exhibit C, Deposition of Annette Roman at 13:16-18. There was no snow or rain and the roads were dry. Fortson Liability Motion, Exhibit E, Deposition of Omar A. Gaya at 14:25-15:9; Exhibit F, Deposition of Izzy Joseph Gontownik at 15:15-19. There were no traffic control devices, such as a stop sign, stoplight, or yield sign in the area where the accident occurred. Fortson Liability Motion, Exhibit D, Deposition of Kaye V. Fortson at 14:11-15.
Plaintiff testified at her deposition that her vehicle was moving at the time of the accident. Roman Deposition at 14:5-12. Prior to being struck in the rear by Fortson's vehicle, Plaintiff stated that she observed Fortson's vehicle driving about ten inches to ten feet behind her. Id. at 15:13-16:7; 17:2-12. The traffic flow was medium. Fortson Deposition at 14:22-24. Plaintiff testified that she felt a single impact and her head struck the headrest. Roman Deposition at 15:4-9. The air bag in her car did not deploy. Plaintiff immediately exited her vehicle and saw that Fortson's truck was on top of her bumper. Id. at 19. Plaintiff saw that her bumper had cracked. Id. Plaintiff saw two other vehicles behind Fortson's truck. Id. at 24-25. She noted that all of the vehicles were touching each other. Id. at 25.
Plaintiffs testimony on this point is somewhat confusing. Initially she indicated the distance between Fortson's vehicle and her own and counsel stated, "Indicating about ten inches to a foot?" Roman Deposition at 15:19-16:2. Shortly afterward, counsel asked whether in the few minutes she noticed the vehicle behind her prior to impact whether "it was about the same ten feet behind you, more or less?" Id. at 17:10-12. Plaintiff responded "About the same", without indicating whether the distance was 10 inches or 10 feet. In her opposition, Plaintiff states that Fortson was traveling between two (2') and ten (10') feet behind her vehicle, so the ten inch testimony appears to be incorrect. Affirmation of Stephen J. Cole-Hatchard, Esq. in Opposition to Fortson Liability Motion at ¶ 6
Fortson testified at her deposition that her car had been completely stopped for ten seconds at the time of impact to the rear of her vehicle. Fortson Deposition at 18:12-17. She testified that Plaintiff s car, which was immediately ahead of her, was also stopped with its brake lights on. Id. at 18:18-24. Fortson saw Plaintiff come to a gradual stop because the car ahead of Plaintiff was stopped. Id. at 37. Fortson had no trouble coming to a stop behind Plaintiff. Id. at 37:24-38:2. Fortson noticed that the Porsche behind her was also stopped. Id. at 18:25-19:6. Fortson couldn't say exactly how much distance there was between her car and Plaintiff s car, because her car was higher than Plaintiffs car, but she estimated that the distance was perhaps a couple feet. She stated that she could see Plaintiffs bumper. Id. at 19:7-11. She could see the front bumper of the Porsche behind her. Id. at 19:15-18. She could not see the car that was behind the Porsche. Id. at 19:19-22.
Fortson described experiencing two impacts to her vehicle. The first one she described as a medium impact from the rear, followed by a second light impact between her vehicle and Plaintiffs vehicle. Id. at 20. Forston testified that at the time of impact to the rear of her vehicle, her foot was on the brake pedal. Id. at 21. After the impacts occurred, she moved her car to the right shoulder and got out of her car to ask the other drivers if they were alright. Id. at 22. She testified that she had a conversation with Gontownik, who apologized to her and said that his foot had slipped off the brake pedal. Id. at 28:10-29:17.
Gaya testified at his deposition that his car had been at a stop for about ten seconds at the time he was rear ended by Gontownik. Gaya Deposition at 16:16-18. He explained that he had stopped his car because Fortson's Honda Pilot in front of him was stopped and its brake lights were on. Id. at 17:14-23; 24:10-12. He stated that cars don't usually stop there but traffic was a little heavier than usual that morning. Id. at 18:2-3. Gaya testified that while he was stopped, he felt two impacts. The first impact was to the rear of his car and the second impact was when his car hit the car in front of him, Fortson's car. Id. at 16:7-18. Just prior to the impact, there was less than a car length between his car and Fortson's car. Id. at 19:20-24.
Gaya testified that he had a conversation with Gontownik, the driver of the car behind him, at the time of the accident. Gaya Deposition at 25:5-26. Gaya stated that Gontownik told him that his foot slipped off the brake pedal and he stepped on the accelerator. Id. at 26:5-10. Gontownik apologized to him.
Gontownik testified at his deposition that he was traveling at a speed in the mid thirties when he first saw Gaya's car traveling ahead of him at about the same speed on Route 9W. Gontownik Deposition at 18:14-20. He stated that he knew before the accident occurred that it would happen when he saw Gaya's car slowing down with its brake lights on. Id. at 21:16-22:2. Gontownik hit his brakes and noticed that his "car was not slowing down as it should. [He] went to push the brake harder, and at that point [his] foot may have slipped off the brake pedal." Id. at 22:2-8. He stated that he had the sensation that his foot slipped off the brake. Id. at 22:13-16. Gontownik was unable to state whether Gaya's vehicle was at a complete stop at the moment of impact. Id. at 23:11-14. Gontownik did not know what his speed was at that time, but he stated that the driver's side front air bag deployed. Id. at 23:15 -21; 31. Gontownik also stated that the impact with the rear of Gaya's vehicle was the only impact he experienced. Id. at 27. He got out of his car after the accident. He recalled taking pictures of the vehicles. He did not recall telling anyone at the scene that his foot slipped off the brake pedal. Id. at 34.
Plaintiff's Injuries
Plaintiff testified that she did not suffer any lacerations or bumps or contusions. Roman Deposition at 18:13-19:9. She described that she had "[j]ust a reaction", Id. at 19:9, and she threw up after exiting her car. Id. at 26:6-21. She was taken to Nyack Hospital from the accident site in an ambulance. She reported to medical personnel that she had previously had a kidney transplant. She was assessed and released from the hospital that day without any medical devices, such as a sling, back brace or collar. She could not recall receiving any medication. Id. at 28-29. After leaving the hospital, she went home and remained there for the rest of the day. Id. at 29. She did not return to work for the first two days of the following work week. Id. at 31. When she returned to work, she was able to perform her usual work functions but had to change her body position to review and sign papers and she had to stand a lot. Id. at 31 -32. She left work about an hour early two days a week for the first three months following the accident. Id. at 32.
A week or two after the accident, Plaintiff sought medical treatment for her back and neck and was treated on three occasions by Dr. David Shein, an orthopedist at Shein Orthopedics. Id. at 34. She was given a heated belt to use for her lower back pain, but she did not recall being given any medication. Id. at 35-36. Plaintiff had an x-ray and an MRI taken of her back. Id. at 37-38. Plaintiff stated that she understood the MRI to reveal that she had two herniated discs in her neck and one at the base of her spine. Id. at 71:5-11. Dr. Shein recommended that she receive spinal injections, which she declined.
Dr. Shein's name is misspelled throughout Plaintiff's deposition transcript as Dr. Shane. He is also identified in the transcript as affiliated with Empire Orthopedics.
Plaintiff next treated with Dr. Gabriel L. Dassa, D.O., F.A.A.O.S. during April and May, 2016. at 44-45. She complained that her "neck was hurting really bad [and her] back was excruciating". Id. at 74. Plaintiff had physical therapy for about four to six weeks following the accident. Id. at 47. Plaintiff continues to experience back pain and is unable to sit for longer than 20 minutes before she gets up. Id. at 46. She is unable to bend down that often and cannot play with her grandson on the floor. Id. at 48. She still uses the heating belt every day, including at work, because it "alleviates [her] pains whenever [her] back pains come." Id. at 36. Plaintiff has not had any shots or any surgery as a result of the accident. Id. at 44.
Plaintiff again treated with Dr. Dassa on October 30, 2017, when she had the examination and obtained the report that is submitted with her opposition. After Plaintiffs initial course of physical therapy ended in May, 2016, and up to that visit, Plaintiff received no medical treatment for her neck or back.
Following his examination in October, 2017, Dr. Dassa opined, based upon MRIs of Plaintiff s cervical and lumbar spine and a stated series of range of motion tests, that there is "objective evidence of persistent orthopedic impairment to the patient's neck and back" Affirmation in Opposition of Courtney Campbell, Esq., Exhibit 1, Report of Dr. Gabriel L. Dassa dated October 30, 2017 at 3. Dr. Dassa noted Plaintiffs limitations in mobility and recommended a course of follow-up medical treatment, including an evaluation by a neurologist to assess the origin of weakness causing her to fall; an evaluation by pain management specialist for epidural injections followed by assessment by a spine surgeon if the injections did not bring any improvement. Dr. Dassa further opined that Plaintiffs "physical findings suggest impairments that are significant and persistence of subjective pain with abnormal physical findings as such do represent her conditions have significant permanent component." Id. at 3. Dr. Dassa opined that "the accident of March 11, 2016 is competent cause of the patient's injuries and orthopedic impairments." Id.
DISCUSSION
Liability Motions
Gaya's Motion
Defendant Gaya moves for summary judgment on the issue of liability. Gaya contends that he bears no responsibility for the occurrence of the accident, as his vehicle was stopped at the time Gontownik's car, the rearmost vehicle, hit him in the rear. Affirmation of Julie lacobucci, Esq. at 6. Gaya contends that nothing in the deposition testimony of any of the parties shows that anything he did or should have done caused or contributed to the accident.
Plaintiff specifically states that she does not oppose Gaya's motion for summary judgment. Affirmation of Courtney Campbell, Esq. in Opposition at ¶ 4. Neither Forston nor Gontownik submitted any opposition to Gaya's motion.
Gaya made out a prima facie case based upon his own deposition testimony and that of Gontownik, who acknowledged that Gaya was either stopped or stopping when Gontownik struck his vehicle from the rear. Gontownik admitted that he attempted to avoid the accident and was unable to do so because his foot slipped off the brake pedal.
Accordingly, Gaya's motion for summary judgment on liability is granted and all claims and cross claims against him are dismissed.
Gaya also brought a threshold motion, which has been mooted by Plaintiff having conceded that Gaya is entitled to summary judgment on liability. Affirmation of Courtney Campbell, Esq. in Opposition at ¶ 4.
Fortson's Motion
Defendant Fortson moves for summary judgment on the issue of liability. Fortson contends that she was not negligent in the operation of her vehicle and did not cause or contribute to the accident because her vehicle was stopped when it was struck from the rear and was pushed into the back of Plaintiff's vehicle. .
Fortson relies upon the police report of the accident, the deposition testimony of the other drivers involved in the accident and her own deposition testimony. Fortson points to Plaintiffs testimony that she sustained only one impact, whereas Fortson and Gaya, who was driving the Porsche immediately behind Fortson, each felt two impacts, the first when their cars were struck from behind and the second when their cars were propelled into the car ahead of them. Fortson also points to Gaya's testimony that Fortson's car was stopped and its brake lights were on. Gaya Deposition at 17:14-23; 24:10-12.
The police report of the accident is not admissible evidence as it is hearsay when offered against Plaintiff. Chang v Rodriguez, 57 A.D.3d 295, 295 [1st Dept 2008]. Therefore, the police report will not be considered.
Fortson contends that "[t]he sole proximate cause of the accident was the defendant Gontownik's negligence in failing to avoid colliding with the rear of the Gaya vehicle", Affirmation of Thomas Mazzaro, Esq. in Support of Motion for Summary Judgment at ¶ 14, setting off a chain reaction collision. Id. at ¶ 14. She relies upon the settled proposition that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the moving vehicle, requiring the operator of that vehicle to come forward with a non-negligent explanation for the accident. Harris v Auto Palace Truck Rental &Leasing, Inc., 81 A.D.3d 691, 692 [2nd Dept 2011] (citing Tutraniv County of Suffolk, 10 N.Y.3d 906, 908 [2008]; Klopchin v Masri, 45 A.D.3d 737 [2007]). She further relies upon the principle that "[i]n a chain-reaction collision, as here, responsibility presumptively rests with the rearmost driver". Chang v Rodriguez, 5 7 A.D.3d 295 [1st Dept 2008] (citing Mustafaj v Driscoll, 5 A.D.3d 138 [2004]). Fortson utilizes that principle to lay all of the fault upon Gontownik, thereby attempting to absolve herself of any liability based upon her assertion that her car was stopped when the chain reaction impact occurred.
Plaintiff contends that Fortson is presumptively negligent, as her car hit Plaintiff s car from the rear. Affirmation of Stephen J. Cole-Hatchard, Esq. in Opposition at 5 (citing Gonzalez v Alvarez, 151 A.D.3d 814 [2nd Dept 2017]; Orellana v Maggies Paratransit Corp., 138 A.D.3d 941 [2ndDept 2016]; Xian Hong Pan v Buglione, 101 A.D.3d 706 [2nd Dept 2012]). Plaintiff argues that the presumption exists even in this case involving multiple cars, because the accident is not necessarily the exclusive fault of the rearmost driver. Id. (citing Suris v Citiwide Auto Leasing, Inc., 145 A.D.3d 817 [2nd Dept 2016].
"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident. There can be more than one proximate cause of an accident" Suris v Citiwide, supra at 817-818 (citing Lukyanovich v HL. Gen. Contrs., Inc., 141 A.D.3d 693, 693 (internal quotation marks omitted). "[N]ot every rear-end collision is the exclusive fault of the rearmost driver. [For example,] the frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision" Id. (citing Tutrani v County of Suffolk, 64 A.D.3d 53, 59-60).
A triable issue of fact exists as to whether Fortson's alleged negligent operation of her vehicle caused or contributed to the accident. Notwithstanding Gontownik's admission that his foot slipped off the brake pedal, causing him to set off the chain reaction of vehicles being pushed into the vehicle ahead of theirs, Plaintiff disputes Fortson's contention that she was stopped at the time her vehicle was hit from the rear. Plaintiff contends that her vehicle was moving at the time of impact and so, too, was Fortson's vehicle. Moreover, Plaintiff contends that Fortson was driving too closely behind her. Gaya's testimony that Fortson's car was stopped when his car was pushed into her car by Gontownik's car corroborates Fortson's testimony, however, Plaintiff's testimony refutes Fortson's version and creates an issue of fact as to Fortson's contributory negligence. Harris, supra at 692 (citing Foti v Fleetwood Ride, Inc., 57 A.D.3d 724, 725 [2008]; Delayhaye v Caledonia Limo & Car Serv., Inc., 49 A.D.3d 588 [2008]; Klopchin v Masri, 45 A.D.3d 737, 738 [2007]). Accordingly, Fortson's motion for summary judgment on the issue of liability is denied.
Defendants' Threshold Motions
Defendants Gontownik and Forston separately move for summary judgment pursuant to CPLR §3212, claiming that Plaintiff has failed to meet the threshold requirements of Insurance Law §§ 5102(d) and 5104(a), because she has not provided proof that she sustained a serious injury. Defendants contend that Plaintiff alleges only soft tissue injuries in her Bill of Particulars and has had no residual long term effect that is permanent and/or significant. Moreover, Plaintiff has no loss of earnings claim.
Fortson adopts Gontownik's memorandum of law and exhibits in support of her threshold motion. Affirmation of Thomas R. Mazzaro, Esq. in Support of Motion for Summary Judgment (Threshold Motion - Motion Sequence No. 3) at ¶ 3-4. Fortson contends that "[i]t is clear based upon the affirmed orthopedic report of Kenneth S. Austin, M.D., as to Plaintiff Annette Roman, as well as the pleadings and deposition testimony of the Plaintiff, that she has not sustained any serious injury within the meaning of Insurance Law Section 5102(d)." Id. at ¶ 5. Fortson improperly, designates her threshold motion as a cross motion. There is no motion seeking relief against Fortson. A cross motion may be brought in lieu of an opposition where the party responding to a motion seeks affirmative relief against the movant.
Insurance Law §5104(a) provides: .
"Notwithstanding any other law, in any action by or on behalf of a 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."
"Serious injury" is defined by Insurance Law §5102(d) as:
"a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body function or system; significant limitation of use of a body organ or member; or a medically determined injury or impairment of a non permanent nature which prevents the injured person from performing all of the material acts which constitute such person's usual and customary activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
The Court of Appeals has held that:
' "If it can be said, as a matter of law, that plaintiff suffered no serious injury within the meaning of Section 5102(d) of the Insurance Law, then plaintiff has no claim to assert and there is nothing for the jury to decide."Licari v Elliot, 57 N.Y.2d 237, 455 N.Y.S.2d 574 [1982], In her Bill of Particulars, Plaintiff claimed that she sustained the following injuries as a result of the accident:
"As to the Cervical Spine: herniated disc at C3-4 which reaches the cord; protruded disc herniation at C5-C5 causing cord impingement; diffuse disc bulge at C5-C6 with cord impingement; diffuse disc bulge at C6-C7; decreased range of motion; stiffness; tightness; weakness; feeling of achiness, tightness and decreased muscle strength; accompanying severe pain, swelling and tenderness; pain and motion affected by changes in the weather". Gontownik Motion for Summary Judgment, Exhibit E, Plaintiffs Bill of Particulars at ¶ 10. "As to the Lumbar Spine: posterior midline to left sided disc herniation; impinging the thecal sac at L2-L3; posterior bulge at L3-L4; posterior bulge at L4-L5; straightening of the lumbar . curvature; spine held in extension; paravertebral muscle tenderness; decreased range of motion; stiffness; tightness; weakness; feeling of achiness, tightness and decreased muscle strength; accompanying severe pain, swelling and tenderness; pain and motion affected by changes in the weather". Id. "As to the Thoracic Spine: loss of disc fluid; decreased range of motion; stiffness; tightness; weakness; feeling of achiness, tightness and decreased muscle strength; accompanying severe pain, swelling and tenderness; pain and motion affected by changes in the weather". Id. "Other injuries: post-traumatic functional impairment of the injured regions; inability to participate in normal physical and/or recreational activities for a prolonged period of time". Id.
Plaintiff alleges as to each of her spinal injuries that "future surgery may be required with resultant scarring; future development of arthritis may occur". Id.
Defendants assert that the evidence supports finding that Plaintiff did not sustain a "permanent consequential limitation of a use of a body organ or member" or a "significant limitation of use of a body function as a result of this incident". Gontownik Motion for Summary Judgment, Affirmation of Neil B. Dinces, Esq. at ¶ 43. Defendants contend that there is no objective proof of ongoing impairment or restriction.
Defendants rely on the report of Dr. Kenneth S. Austin, who conducted a medical examination of Plaintiff for the defense on July 18, 2017, and, using a goniometer, found that Plaintiff had normal ranges of motion with respect to her cervical and lumbar spine. Id., Exhibit G, Expert Disclosure, Report of Kenneth S. Austin, M.D. at 2. Moreover, Dr. Austin reported that he found "no evidence of spasm or palpable pain or tenderness with no focal neurological or muscular deficit." Id. at 2. Dr. Austin concluded that Plaintiff "suffered some soft tissue issues with regards to her neck, mid and low back". Id. at 3. Dr. Austin noted that Plaintiff sought "brief orthopedic and physical therapy follow up [but] has not been under active care in quite some time." Id. Dr. Austin stated further that he saw "no evidence of ongoing impairment or restriction" and that Plaintiff had "gotten back to her prior work activities without restrictions", did not "need to restrict her activities in any way", and had "no need for ongoing orthopedic intervention." Id. Dr. Austin noted in his -report that Plaintiff "has difficulty sitting for a lengthy period of time getting pain in her mid to low back with some generalized stiffness that rapidly resolves." Id. at 2. He also noted that Plaintiffs pain "is improved with some warm packs to the low back" and that "she takes no other medications for these issues." Id.
Defendants contend that plaintiffs subjective complaints and symptoms of pain do not establish serious injury. Affirmation of Neil B. Dinces, Esq. at 40. Defendants assert that an "equivocal prognosis such as 'guarded' or a 'tendency toward' future complications" also do not prove permanence. Id.
Defendants met their prima facie burden of showing that Plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. See Toure v Avis Rent A Car Sys., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79N.Y.2d955 [1992]; Rodriguez v. Huerfano, 46 A.D.3d 794, 795 [2nd Dept 2007] ("The defendants established that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) through the submission of the affirmed medical report of their expert orthopedist, who conducted a physical examination of the plaintiff, finding a normal range of motion in his cervical and lumbar regions of the spine and the absence of any orthopedic disability") (citing Gaddy, supra at 956-957; Shamsoodeen v Kibong, 41 A.D.3d 577 [2nd Dept 2007]). The burden shifted to Plaintiff to raise a triable issue of fact as to
Plaintiff met her burden by presenting the reports of Dr. Dassa. His initial report, when Plaintiff treated with him shortly after the accident, showed that Plaintiff had significant limitations in range of motion in the cervical and lumbar spine. His recent examination again found significant limitations of motion, which led to his conclusion of permanence. Plaintiff s losses in this case of 20% and 25%, when coupled with the MRI showing the herniated discs, raises a question of fact whether, as a result of the accident, she sustained a serious injury to her back under the permanent consequential and/or significant limitation of use categories of Insurance Law §5102(d).
In opposition, Plaintiff argues that the report of Dr. Dassa, her treating physician, and the cervical and lumbar spine MRIs provide objective medical findings of loss of range of motion and herniations in her lumbar and cervical spine. Plaintiff asserts that case law establishes that a herniated disc shown on MRI and "an expert's designation of a numeric percentage of a plaintiffs loss of range of motion can be used to substantiate a claim of serious injury." Durham v New York East Travel, Inc., 2 A.D.3d 1113, 1114-15 [3rd Dept 2003] (quoting Toure, supra at 350). Plaintiff further asserts that "the experts disagree as to the nature and cause of the herniations in [Plaintiffs] lumbar and cervical spine." Courtney Campbell, Esq. at ¶ 27. Specifically, Dr. Dassa attributed Plaintiffs injuries to the accident and Dr. Austin offered no opinion as to causation. Thus, Plaintiff contends, there is a triable issue of fact.
Here, as in Durham, supra, "there is independent objective medical evidence of an injury, namely, a postaccident MRI showing a herniated cervical disc [and Dr. Dassa's] opinion], based upon plaintiffs treatment history and her clinical examination, that the accident caused the disc hemiation[s] in plaintiffs cervical [and lumbar] spine and that the resulting loss of range of motion is permanent." Dr. Dassa reported that Plaintiff experienced losses of motion in her cervical spine of 12% of rotation and 25% of extension, and losses in her lumber spine of 20% of extension, lateral bending and rotation. The Court in Pareti v Giglietta, 221 A.D.2d 607, 608 [2nd Dept 1995], found a 20% restriction of motion of the plaintiff in her cervical spine, which her physician determined should be considered permanent was sufficient to raise a triable issue of fact as to whether the plaintiff sustained "significant limitation of use of a body function or system". X under the permanent consequential and/or significant limitation of use categories of Insurance Law §5102(d) sufficient to survive defendants' motions for summary judgment. Durham, supra at 1115. Gap of Treatment
Plaintiff conceded that she could not make out a "90/180" claim of serious injury. Affirmation of Courtney Campbell, Esq. in Opposition at 4 n1.
Defendants assert that Plaintiff "has not treated with any other medical care provider for the injuries she claims were sustained in the accident since May 2016." Affirmation of Neil B. Dinces, Esq. In Support of Gontownik Threshold Motion at ¶ 41. Defendants state that Plaintiff has had no surgeries or spinal injections as a result of the accident, and she has no appointments scheduled for medical treatment for her claimed injuries. Id. at ¶ 42. Defendants contend that "any injuries the plaintiff allegedly sustained from the subject accident resolved or are unsubstantiated from the very beginning." Id. Defendants contend that Plaintiffs gap of treatment or cessation of treatment completely undercuts her claim of serious injury.
Plaintiff argues that Defendants' claim that the gap in treatment between the end of her physical therapy in May, 2016 and Dr. Dassa's examination in October, 2017 "goes to the weight of the medical opinion and is properly a question for the jury." Affirmation of Courtney Campbell, Esq. in Opposition at ¶ 40 (citing Ramos v Dekhtyar, 301 A.D.2d 428 [1st Dept 2003]). Plaintiff also contends that "Dr. Dassa's finding of permanence vitiates the issue of a gap in treatment entirely." Id. (citing Pommels v Perez, 4 N.Y.3d 566 [2005]). Plaintiff does not explain the gap or cessation of treatment for the injuries she claims from the accident.
The Court of Appeals established in Pomells that "even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury-such as a gap in treatment, an intervening medical problem or a preexisting condition-summary dismissal of the complaint may be appropriate." 4 N.Y.3d at 572. "While a cessation of treatment is not dispositive-the law surely does not require a record of needless treatment in order to survive summary judgment-a plaintiff who terminates therapeutic measures following the accident, while claiming 'serious injury,' must offer some reasonable explanation for having done so." Id. at 574 (emphasis added). The plaintiff in Pomells offered no explanation for his gap in treatment, nor did his doctors, which proved fatal to his claims. Id. at 575.
Similarly, Plaintiff in this case offered no explanation whatever as to why she did not pursue further treatment after her physical therapy ended in May, 2016. The only explanation found anywhere appears in the patient history section of Dr. Dassa's October, 2017 report, wherein he states that "[t]he patient was referred to physical therapy which was performed until the physical therapy treatments were discontinued because of her insurance benefits being terminated." Affirmation in Opposition of Courtney Campbell, Esq., Exhibit 1, Report of Dr. Gabriel L. Dassa dated October 30, 2017 at 1. This explanation was not provided by Plaintiff during her deposition on June 15, 2017, and she has not submitted an affidavit in support of her opposition. Notably, Plaintiff's counsel does not provide any explanation in her affirmation, which, like Dr. Dassa's statement in his report, would not be competent evidence in any event.
Plaintiff incorrectly cites Pomells for the proposition that a finding of permanence vitiates the need to explain the gap of treatment. Pomells, which decided three separate proceedings, including Brown v Dunlap, found that a gap of treatment in Brown v Dunlap was adequately explained by the plaintiffs physician having terminated treatment and recommended to the plaintiff to exercise at home because further medical therapy would "be only palliative in nature". Pomells, supra at 577. That is not the situation here. To the contrary, further treatment was recommended to Plaintiff by Dr. Dassa.
Defendants' motions for summary judgment on the threshold issue of serious injury must be granted because Plaintiff has not offered any explanation for the 1 year and 7 'A month gap in treatment. Pomells v Perez, 4 N.Y.3d 566 [2005]. Plaintiff did not explain why, after her physical therapy ended in May, 2016, she sought no further medical treatment of her alleged accident-related injuries for nearly two years until she consulted with Dr. Dassa to obtain the report she offers in support of her opposition to Defendants' motions. Indeed, the evidence supports finding a cessation of treatment rather than a gap, as Plaintiff had already declined to pursue the courses of treatment recommended by Dr. Dassa in his 2017 report. Therefore, Plaintiff s unexplained gap of treatment makes summary dismissal of the complaint appropriate.
SUMMARY
Defendant Fortson's motion for summary judgment as to liability (Motion #1) is denied.
Defendant Forston and Defendant Gontownik's separate motions for summary judgment as to Insurance Law § 5102(d) (Motions ## 2 and 3) are both granted. .
Defendant Gaya's motion for summary judgment (Motion # 4) is granted without opposition.
The foregoing constitutes the Decision and Order of the Court.