Opinion
No. 2019-51955
05-04-2021
MARIA ROMERO, Plaintiff, v. JENNIFER KRONOWITZ and KELSIE CARTER, Defendants.
Unpublished Opinion
DECISION AND ORDER
HAYES, M.G., Acting Supreme Court Justice
The Court read and considered the following documents upon this motion:
PAPERS
NUMBERED
Notice of Motion......................
1
Affirmation......................
2
Exhibits.........................
3
Affirmation in Opposition.............
4
Exhibits.........................
5
Affidavit. ........................
6
Affirmation in Opposition.............
7
Affirmation in Reply..................
8
Notice of Motion......................
9
Affirmation......................
10
Exhibits.........................
11
Notice of Motion......................
12
Affirmation.......................
13
Memorandum of Law................
14
Exhibit..........................
15
Affirmation in Opposition. ........... .
16
Exhibits.........................
17
Affirmation in Reply..................
18
Affirmation in Reply..................
19
This is an action for personal injuries allegedly sustained by plaintiff Maria Romero following a motor vehicle accident, which occurred on August 11, 2018 at approximately 1:45 p.m. at the intersection of County Road 114 (a/k/a Main Street) and Taft Avenue in the Town of Poughkeepsie.
Defendants have each moved for summary judgment, pursuant to CPLR 3212, seeking dismissal of the plaintiff's complaint on the basis that plaintiff did not suffer a "serious injury" as defined by Insurance Law §5102(d).
Defendant Kelsie Carter also moves for an order, pursuant to CPLR 3212, granting her summary judgment as plaintiff cannot establish a prima facie case of liability against her.
The Court will first address the defendants' motions seeking summary judgment based upon the alleged lack of a "serious injury". Then, if necessary, the Court will address defendant Carter's motion concerning liability.
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 N.Y.2d 361 [1974]). The movants must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]) . Once the movants set forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]) .
The Court will first examine the motion for summary judgment of defendant Kronowitz, in relation to the issue of lack of "serious injury". In support of her motion, defendant Kronowitz offers the affirmations of Dr. Jessica F. Berkowitz, a Board Certified radiologist, and Dr. Robert C. Hendler, an orthopedic surgeon and a diplomat of the American Board of Orthopedic Surgeons.
Dr. Berkowitz reviewed 28 radiology studies pertaining to the plaintiff's diagnostic testing of her cervical, thoracic and lumbar spines. Of the 28 studies reviewed, 5 pertained to plaintiff's cervical spine, 6 pertained to her thoracic spine and the remaining 17 were studies of her lumbar spine.
Prior to the accident of August 11, 2018, plaintiff had 2 prior cervical spine x-rays performed. After the accident, she underwent a CT scan and 2 MRIs. Dr. Berkowitz states that plaintiff's pre-accident radiological studies of her cervical spine exhibited minimal spondylosis, which is a degenerative process. The post-accident CT scan showed that plaintiff had degenerative disc disease at C6-7 and C7-T1, with disc narrowing, vacuum phenomenon and spondylosis. Dr. Berkowitz indicates that the hypertrophic changes are a degenerative process and did not develop the same day as the accident. The same can be seen for the disc disease at C6-7 and C7-T1, according to Dr. Berkowitz. The CT scan did not evidence any acute traumatic injury to the plaintiff's cervical spine. Less than three months post-accident, an MRI was performed on November 1, 2018 at Caremount Medical Group ("Caremount"). According to Dr. Berkowitz, the MRI showed minimal to slight disc bulges at every level of the plaintiff's cervical spine. Dr. Berkowitz opines that all of these disc bulges were chronic and degenerative and not causally related to the accident. The plaintiff's last cervical MRI, on April 27, 2019, showed a minor degree of bulging at C4 through Tl with associated spondylotic changes. Dr. Berkowitz concludes that films associated with the plaintiff's cervical spine show ongoing degenerative changes as far back as 2014. Plaintiff subsequently developed disc bulges and hypertrophic changes, which are not causally related to the accident, according to Dr. Berkowitz.
The plaintiff underwent an x-ray, CT scan and MRI of her thoracic spine, prior to the accident. After the accident, plaintiff had an additional x-ray and 2 additional MRIs.
On October 10, 2014, plaintiff underwent an x-ray of her thoracic spine. Dr. Berkowitz states that at that point plaintiff had slight left convex scoliosis and slight loss of height at Til. Dr. Berkowitz noted that these findings could be developmental, but the loss of disc height may be due to a compression fracture. The lower part of plaintiff's thoracic spine exhibits disc space narrowing and there was spondylosis at multiple levels. Dr. Berkowitz contends that these two findings are a result of degeneration. Dr. Berkowitz then once again reviewed the CT scan performed at Vassar Brothers Medical Center ("Vassar") for findings relating to the thoracic spine. Dr. Berkowitz noted slight loss of height at Til, disc bulging spondylosis and hypertrophic facet joint changes impinging on the spinal canal and neural foramen at T10-11, as well as extensive endplate sclerosis. These findings were confirmed by an MRI almost one year pre-accident, with the addition of a herniation at T7-8 and discogenic endplate changes at multiple levels.
On the day of the accident, plaintiff underwent an x-ray at Vassar. Comparing this x-ray to the early October 2014 x-ray, Dr. Berkowitz noted increased narrowing in the mid to lower thoracic spine, as well as greater degenerative changes. Dr. Berkowitz notes that these findings are not causally related to the accident and she did not see any evidence of an acute traumatic injury. The MRI of plaintiff's thoracic spine at Caremount on November 1, 2018 noted multilevel disc bulging, spondylosis and hypertrophic joint change which were degenerative in origin.
The last set of films reviewed by Dr. Berkowitz pertained to the lumbar spine. Plaintiff's first testing was on October 28, 2008, some ten years pre-accident. Dr. Berkowitz indicates that this MRI showed left convex scoliosis in the mid-lumbar spine, with lateral slippage of L4 in relation to L5. A minimal disc bulge could be seen at LI-2 and L2-3, along with a perineural cyst at the left L2-3 neural foramen. L3-4 had a disc bulge impinging on the thecal sac and left neural foramen. Bulging, spondylosis and hypertrophic facet joint changes were causing the bilateral neural foramen to narrow at L4-5 as well. L5-S1 exhibited disc bulge, herniation and hypertrophic facet joint changes as well. Both L4-5 and L5-S1 levels had discogenic endplate changes. In mid-2 014, the plaintiff underwent an MRI, which confirmed, according to Dr. Berkowitz, an acute, or subacute, compression fracture at L3. This was followed by an injection of radiopaque cement into the L3 vertebral body on August 5, 2014 at Vassar, i.e. a kyphoplasty procedure. Dr. Berkowitz notes that the plaintiff underwent several x-rays following her kyphoplasty procedure. The most significant interval change could be seen in her August 22, 2017 MRI, wherein Dr. Berkowitz noticed slippage of L3 in relation to L4 and the disc bulging, loss of height and hypertrophy at L3 with impingement on the left neural foramen to a greater extent. Subsequent to the accident, Dr. Berkowitz reviewed four studies, the first being at Vassar on the day of the accident. According to Dr. Berkowitz, the x-ray did not show any adverse interval change in the lumbar spine. The November 1, 2018 MRI exhibits disc bulges and hypertrophic facet joint changes in the lumbar spine unrelated to the accident, as noted by Dr. Berkowitz.
Dr. Berkowitz concludes that the accident did not cause any acute traumatic injury to the plaintiff's lumbar spine, as a comparison of pre and post accident MRIs show that all findings pre-existed the accident by at least seven months and in some instances, many years. As such, Dr. Berkowitz states that the findings seen on her post-accident tests are not causally related to the accident. As to plaintiff's cervical spine, Dr. Berkowitz states that her pre-accident x-rays did not evidence any of the disc bulges seen in her post-accident MRIs. Dr. Berkowitz states that this result is not surprising as x-rays are not the proper form of testing for visualizing disc bulges. That said, Dr. Berkowitz notes that the pre-accident x-rays clearly documented ongoing spondylosis and scoliosis. Furthermore, plaintiff's CT examination from the day of the accident clearly showed degenerative disc disease and hypertrophic facet joint changes, according to Dr. Berkowitz. The CT scan and MRI of November 1, 2018 fail to indicate any evidence of acute traumatic injury. Rather, the studies exhibit evidence of disc bulges which are chronic and degenerative in nature and unrelated to the accident, as per Dr. Berkowitz. Finally, as to plaintiff's thoracic spine, Dr. Berkowitz stated that post-accident testing revealed disc bulges at multiple levels, along with spondylosis, disc space narrowing, hypertrophic joint changes, scoliosis, loss of height and extensive endplate sclerosis and at T7-8 herniation. Regarding a T6-7 herniation seen in the May 6, 2019 MRI, it was not present in the November 1, 2018 MRI and therefore is not causally related to the accident, according to Dr. Berkowitz.
Dr. Hendler physically examined the plaintiff on September 21, 2020. Examination of the cervical spine exhibited normal range of motion measured with a handheld goniometer, inclinometer and tape measure. Dr. Hendler noted normal range of motion in plaintiff's lumbar spine. Straight leg raising was negative bilaterally at 90 degrees, a normal result. Range of motion of plaintiff's thoracic spine and of both knees were normal. Plaintiff's hips had full range of motion, without any thigh muscle atrophy. Dr. Hendler concurs with the findings of Dr. Berkowitz, i.e. that plaintiff has a long-standing history of lower backs problems dating as far back as 2008. Dr. Hendler states that plaintiff's lumbar studies show a steady progression of degenerative joint and disc disease. In comparing plaintiff's pre and post-accident studies, Dr. Hendler notes significant preexisting lumbar spine problems that were unchanged by the accident. Furthermore, Dr. Hendler notes extensive prior history with regard to the cervical spine without any evidence of posttraumatic change in her CT scan performed the day of the accident. Dr. Hendler is of the opinion that the plaintiff may have sustained a cervical and lumbrosacral sprain, with temporary exacerbation of her pre-existing problems in these areas. Dr. Hendler concludes that the plaintiff is under no present disability, nor were there any permanent findings in her neck, back, knee or hip that would be causally related to the accident. The doctor further states that there was no permanent consequential limitation of use to any member, function, or body system, no significant limitation or injury which prevented the plaintiff from performing substantially all of her daily activities from 90 out of the first 180 days following the accident.
Defendant Carter also submits a motion for summary judgment in relation to plaintiff's claimed "serious injury" as defined by Insurance Law §5102(d). Defendant Carter's motion adopts and incorporates all facts, legal arguments and exhibits contained within the motion of co-defendant Kronowitz.
Defendants have established their prima facie entitlement to judgment as a matter of law by submitting the reports of Dr. Berkowitz and Dr. Hendler, as well as plaintiff's hospital and treatment records which establish that she has not sustained a serious injury pursuant to Insurance Law §5102(d) (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345 [2002]; Gash v. Miller, 111 A.D.3d 950 [2nd Dept 2019]; Mnatcakanova v. Elliot, 174 A.D.3d 798 [2nd Dept 2019]; Santiago v. Riccelli Enters., Inc., 173 A.D.3d 1237 [2nd Dept 2019]; Kearse v. New York City Tr. Auth., 16 A.D.3d 45 [2nd Dept 2005]) .
Since defendants have made a prima facie showing of entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]), plaintiff must show that genuine triable issues of material fact exist in order to defeat defendants' motions (id.).
Plaintiff's opposition papers fail to raise a triable issue of fact. Plaintiff's opposition papers consist of her attorney's affirmation, her treatment records and unsworn/unaffirmed letter of Dr. Elvis W. Rema.
To the extent that the undated letter of Dr. Rema could be considered, Dr. Rema fails to address the findings of Dr. Berkowitz and Dr. Hendler that the alleged injuries to the plaintiff's spine were degenerative in nature and therefore Dr. Rema's conclusions as to causation are insufficient to raise an issue of fact (see Gash v. Miller, 111 A.D.3d 950 [2nd Dept 2019]). In the absence of an explanation by the plaintiff, through admissible evidence in the form of an expert report or otherwise, as to the significance of the pre-existing conditions and degenerative findings it would be speculative to surmise that the accident of August 11, 2018 was the cause of the plaintiff's injuries (see Lagios v. Public Adm'r of Suffolk County, 303 A.D.2d 644 [2nd Dept 2003]). As such, plaintiff has failed to offer any admissible objective medical evidence of serious injury contemporaneous with the motor vehicle accident (see Garcia v. Solbes, 41 A.D.3d 426 [2»d Dept 2007]; Quagliarello v. Paladino, 40 A.D.3d 836 [2nd Dept 2007]) .
Additionally, plaintiff does not submit any competent medical evidence that the injuries the she allegedly sustained in the subject accident rendered her unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Knox v. Lennihan, 65 A.D.3d 615 [2nd Dept 2009]). Therefore, it is
ORDERED, defendants' motions for summary judgment as to the issue of "serious injury" pursuant to Insurance Law §5102(d) are granted in their entirety and plaintiff's complaint is dismissed, it is further
ORDERED, defendant Carter's motion for summary judgment on the issue of liability is denied as moot.
This constitutes the Decision and Order of the court.