Opinion
100817/06.
Decided May 22, 2008.
Upon the foregoing papers, the respective motion and cross motions (Nos. 652, 460 and 659) for summary judgment dismissing plaintiff's complaint for failure to sustain a "serious injury" of defendants STEVEN CARROLL, ANTHONY PISCIOTTANO, MARIA PISCIOTTANO, UMAR MAHFOOZ and KASHIF MAHFOOZ, are denied; the respective cross motions (Nos. 427 and 821) of defendants CHRISTOPHER FAVALORO and RICHARD CALLERY for summary judgment on the issue of liability are also denied.
Plaintiff commenced this action to recover damages for personal injuries he allegedly sustained on March 14, 2003, when his vehicle was struck from behind while stopped in heavy traffic on the Staten Island Expressway at the Clove Road Exit. It is alleged in the complaint that plaintiff's vehicle was struck from behind by a vehicle driven by codefendant ANTHONY PISCIOTTANO. It is further alleged that a third vehicle, driven by codefendant RICHARD CALLERY, subsequently struck the rear of PISCIOTTANO's vehicle, causing it to strike plaintiff's vehicle a second time. A fourth vehicle, driven by codefendant, CHRISTOPHER FAVALORO is then alleged to have struck the CALLERY vehicle. Finally, it is claimed that a second accident occurred approximately ten minutes after the initial accident, in which codefendant STEVEN CARROLL independently struck the UMAR MAHFOOZ vehicle.
As a result of said collisions, plaintiff alleges to have sustained permanent injuries including, inter alia, a right paracentral herniated disc at C4/5 with mass effect upon the dural sac and spinal cord; posterior bulging discs at C5/6 and C6/7; curvature of the cervical spine with convexity to the left, consistent with muscle spasm; cervical radiculopathy; cervicalgia; strain and sprain of the cervical spine with tearing and derangement of the nerves, blood vessels and soft tissues of the cervical spine; spondylosis and pain radiating from the neck to the upper extremities. According to plaintiff, these injuries have resulted in restrictions of motion and continued pain.
Plaintiff further claims to have sustained strain and sprain of the lumbar spine with the same consequent tearing and derangement of the nerves, blood vessels and soft tissues of the lumbar spine, radiculopathy, spondylosis and pain radiating from the lower back to the lower extremities. The result is again opined to include restriction, pain and limitation of motion. In addition, plaintiff alleges that he was confined to bed and to home for a period of two weeks following the accident. It is plaintiff's claim that these injuries are said to cause continued pain, deformity, disability, stiffness, tenderness, traumatic arthritis, weakness, partial restriction, risk of traumatic arthritis, atrophy, anxiety and mental anguish, each of which has substantially prevented him from enjoying the normal fruits of his usual activities, including social, educational and economic intercourse.
In moving for summary judgment dismissing the complaint and all cross claims against him, defendant STEVEN CARROLL contends that plaintiff has failed to meet the threshold requirements of Insurance Law § 5102(d) by failing establish a prima facie case of serious injury. According to CARROLL, plaintiff did not seek treatment until two days following the accident, when he visited an emergency room and was found, upon examination, to exhibit normal range of motion, no motor sensory deficits, and normal reflexes. He was ultimately diagnosed with a cervical strain. In addition, CARROLL submits a copy of a sworn cervical MRI report for plaintiff taken on April 3, 2004, which indicates (1) degenerative changes at C4-5 and C5-6 with osteophytic changes including disc dessication and degeneration, and (2) disc bulges at C4-5, C5-6 and C6-7 with no cord impingement. The stated conclusion is that plaintiff's injuries are degenerative in nature, and not likely to have been caused by an acute injury. Defendant CARROLL also submits copies of sworn neurological and orthopedic examinations each of which reports normal findings, the absence of any disability, and no need for any treatment or physical assistance.
In an unrelated cross motion, defendant CHRISTOPHER FAVALORO seeks summary judgment dismissing the complaint and all cross-claims against him, but predicates his motion on the ground that the evidence establishes that he did not cause or contribute to the happening of the subject motor vehicle accident. Accordingly, he denies any liability for plaintiff's alleged injuries. FAVALORO further contends that plaintiff has failed to establish that he sustained a serious injury as required by the Insurance Law. In support, FAVALORO contends that the EBT testimony of the parties establishes that there were two separate impacts which occurred ten minutes apart, and that FAVALORO was involved only in the second accident, which apparently did not involve plaintiff's vehicle in any way. According to FAVALORO, his vehicle struck another vehicle, which did not result in any further impact with plaintiff's vehicle. In this regard, FAVALORO contends that the EBT testimony of codefendants PISCIOTTANO, CARROLL, and MAHFOOZ all establish that it was their vehicles that were involved in the chain-reaction collision with plaintiff's vehicle. Accordingly, FAVALORO contends that there is no triable issue of fact regarding his liability for the subject accident.
Alternatively, FAVALORO contends that plaintiff failed to establish that he sustained a serious injury as required by Insurance Law § 5102. In support, FAVALORO submits the sworn report of orthopedist Dr. Wayne Kerness, who examined plaintiff's cervical, lumbar and thoracic spine and reported normal range of motion with no muscle spasm; normal muscle strength and reflexes, and a negative straight leg raising test. As a result of his examination, Dr. Kerness concluded that plaintiff exhibited resolved cervical, thoracic and lumbar sprain/strain, with no subsisting disability, no need for further treatment and no restrictions on his ability to work. Similarly, the sworn report of an orthopedist, Dr. Andrew Dowd, indicates that an examination which he conducted only two months after the subject accident found that plaintiff exhibited normal ranges of motion, and that the Foraminal Compression, Soto Hall and Valsalva tests he administered yielded negative findings. In addition, plaintiff's Phalen's, Tinel's, and Laseque's tests were all negative, and his reflexes, gait and motor strength were all found to be "normal". In his conclusion, Dr. Dowd found that plaintiff had no disability which could prevent him from working and engaging fully in his usual daily activities. According to FAVALORO, the foregoing proof plainly serves to establish that plaintiff did not sustain a serious injury which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence ( see Insurance Law § 5102[d]).
FAVALORO further contends that his medical affidavits demonstrate that the plaintiff also failed to establish that he sustained a "permanent" or "significant" injury. According to FAVALORO, there is no competent, objective medical evidence to show that plaintiff's purported loss of use of any body organ, member, function or system has failed to improve, or that he suffered any permanent consequential limitation of use of a body organ or member. In this regard, FAVALORO contends that the conclusory affidavit of plaintiff's treating physician, which is based on plaintiff's subjective complaints, was prepared more than two years after the subject accident and is insufficient to establish a serious injury. Finally, FAVALORO contends that plaintiff has failed to establish any significant limitation of use of any body organ or member, as there is no proof that any of his alleged injuries were objectively measured or quantified, and are other than mild or slight. Therefore, there is insufficient proof to establish a significant limitation.
In a second cross motion, defendants ANTHONY and MARIA PISCIOTTANO submit the same medical proof submitted by codefendant CARROLL to demonstrate that plaintiff failed to sustain any serious injury as a result of the subject motor vehicle accident.
Codefendants UMAR and KASHIF MAHFOOZ also move for summary judgment on the ground that plaintiff has failed to establish a serious injury as required by the Insurance Law. In doing so, these defendants rely upon the proof submitted by codefendants PISCIOTTANO and FAVALORO in support of their cross motions.
Finally, defendant RICHARD CALLERY cross-moves for summary judgment dismissing the complaint and all cross claims against him claiming that plaintiff has failed to establish a serious injury as required by § 5102(d) of the Insurance Law. On this aspect of his cross motion, CALLERY adopts and incorporates the arguments and proof submitted by codefendants PISCIOTTANO and FAVALORO. In addition, CALLERY moves for summary judgment on the issue of liability, contending that all of the evidence shows (1) that he was not the third vehicle in a chain-reaction motor vehicle accident, and (2) that his vehicle was "stopped" and in the "park" position due to heavy traffic when he was struck from behind by defendant FAVALORO's vehicle. Since it was this vehicle that allegedly pushed his vehicle into the vehicle in front of him, CALLERY contends that a prima facie case of negligence has been established against the operator of the following vehicle, FAVALORO, who has failed to tender any non-negligent explanation for the accident. Thus, CALLERY is entitled to judgment on liability as a matter of law.
In his opposition papers, plaintiff does not oppose the motions of defendants CARROLL or MAHFOOZ on the issue of liability. In fact, plaintiff concedes that these vehicles were involved in a separate collision that was unrelated to his injuries.
Nevertheless, plaintiff opposes the remaining motions insofar as they seek summary judgment on the ground that plaintiff did not sustain a serious injury. In support, plaintiff submits the affirmed report of his treating physician, Dr. Boris Tsatskis, who both reviewed plaintiff's prior medical records and conducted an examination of the plaintiff. Upon his examination, Dr. Tsatskis found muscle tenderness over the paravertebral musculature of plaintiff's cervical spine. He also found the motor strength in plaintiff's right triceps musculature to be only 80% of that on his left, which he opined is indicative of injury and pressure to the nerve roots on the right side. The doctor also noted diminished sensation to light touch and pinprick along the right C5-7 dermatome when compared to the opposite side, and limited ranges of motion of the cervical spine and right shoulder. The first of these injuries was alleged as indicating pathology to the spinal cord and nerve roots. Each of Dr. Tsatakis's findings were quantified by him and compared to normal ranges. In addition, Dr. Tsataskis' performance of a foraminal compression test were alleged to reveal positive results on plaintiff's right side at the C5-7 level.
In conclusion, Dr. Tsataskis opined that plaintiff had sustained post-traumatic right paracentral disc herniation at C4-5, with mass effect upon the dural sac and spinal cord; post-traumatic posterior disc bulging with effacement of the anterior aspect of the subarachnoid space at the C5-6 and C6-7 levels; curvature of the cervical spine consistent with muscle spasm; and post-traumatic derangement of the cervical spine. According to the doctor, plaintiff continues to suffer significant limitation of use of the cervical spine, and continues to be pain expressive. As a result, his daily activities and quality of life allegedly have been decreased as a result of his condition. In addition, Dr. Tsataskis claims that plaintiff continues to demonstrate signs and symptoms of residual inflammatory pathology to the muscular and supportive structure of the cervical spine, and has therefore recommended continued home exercises and a return for physical therapy treatment. He has also recommended that plaintiff consider undergoing a series of paravertebral cervical nerve blocks to prevent pain.
Finally, Dr. Tsataskis concluded that plaintiff will continue to suffer long-term complications from the injuries caused by this traumatically-induced injury to the cervical spine, including pain and parasthesia, which causes a weakening of the supportive soft tissue structure. Future degenerative changes have been termed likely, as has a predisposition for additional problems which, but for the accident, may not otherwise have affected plaintiff. In sum, Dr. Tsataskis concluded that the subject motor vehicle accident was the primary competent producing cause of plaintiff's injuries, which he described as chronic and disabling in nature. Moreover, in view of the length of time that they have persisted, these injuries are believed to represent a permanent condition, leaving plaintiff partially disabled.
Plaintiff also submits the notarized affirmation under the penalty of perjury of his treating chiropractor, who provided treatment to plaintiff for one year following the subject motor vehicle accident. The report of the chiropractor's March 21, 2003 examination revealed decreased but unquantified cervical ranges of motion; paraspinal muscle spasm; and tenderness upon palpation. The examination also revealed positive results in plaintiff's cervical compression, shoulder depression, cervical distraction and Soto Hall tests. As a result, plaintiff was scheduled for chiropractic adjustments three times a week. In a June 13, 2003 notarized affirmed report, the chiropractor noted similar findings as those reported in the prior examination, and that using AMA standards, plaintiff exhibits a whole body impairment rating of 8%. According to the chiropractor, the type of accident described by plaintiff, with all reasonable medical certainty, is the cause of his present condition, which appears to be one of a permanent partial disability. In yet another chiropractic notarized affirmed report dated July 23, 2003, similar findings were reported, and it was opined that plaintiff had received the maximum benefit from chiropractic care, and that any further treatment would be only palliative in nature.
Plaintiff has also submitted the affirmed report of his April 3, 2003 cervical MRI, conducted by Alan Berlly, M.D. Dr. Berlly's impression of the MRI revealed (1) a right paracentral disc herniation with mass effect upon the dural sac and spinal cord, (2) a posterior disc bulging at the C5-6 and C6-7 levels, and (3) curvature of the cervical spine with convexity to the left, consistent with the presence of muscle spasm.
Finally, plaintiff submits his own affidavit, in which, inter alia, he describes in detail the pain he experiences and its impact on his daily activities. Plaintiff also explains that he has been advised by his chiropractor that he has reached the maximum benefit from treatment, and has been instructed to continue an at-home exercise program which is claimed to cause recurrent pain. According to plaintiff, the pain worsens when bending and lifting. In addition, plaintiff states that he experiences difficulty when sitting, standing or walking for extended periods of time. Plaintiff contends that he had no physical limitations prior to the subject accident, but that his present condition has affected his usual daily activities. In addition, he claims to have become fearful and sedate, and now finds that he must restrict his customary activities in order to avoid experiencing pain and discomfort.
It is well settled that summary judgment is the procedural equivalent of a trial ( see Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338). It is, therefore, a drastic remedy that will only be granted when the proponent establishes that there are no triable issues of fact ( see Alvarez v. Prospect Hosp. Prospect Hosp., 68 NY2d 320). However, once the party seeking summary judgment has made a prima facie showing of its entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to come forward with proof in evidentiary form establishing the existence of triable issues of fact ( see Zuckerman v. City of New York, 49 NY2d 557, 562).
It is similarly well settled that a plaintiff seeking to recover damages for personal injuries sustained in an automobile accident is required to plead and prove that he or she has sustained a "serious injury" as defined in Insurance Law § 5102 ( see Licari v. Elliott, 57 NY2d 230). As a result, a defendant making a threshold motion to dismiss bears the initial burden of making a prima facie showing that plaintiff did not sustain a serious injury as a result of the subject motor vehicle accident. Once this is accomplished, it is incumbent upon a plaintiff seeking to avoid summary judgment to come forward with sufficient evidence to raise a triable issue of fact on serious injury ( see Gaddy v. Eyler, 79 NY2d 955).
Here, it is the opinion of this Court that defendants have each satisfied their burden of establishing that plaintiff did not sustain a serious injury as a result of the subject motor vehicle accident ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 352) by submitting sufficient objective medical evidence (including the sworn reports of neurologists and orthopedists who examined plaintiff and reviewed his medical records), that there was no objective evidence of a serious injury related to the subject motor vehicle accident. Nevertheless, these motions for summary judgment on the issue of serious injury must be denied.
In opposition to defendants' motions, plaintiff has successfully rebutted each of their prima facie showings by producing objective medical evidence sufficient to raise a triable issue of fact regarding his claims of serious injury. In particular, the affirmation of Dr. Tsatskis clearly sets forth the results of his objective testing of plaintiff's cervical spine, which he both quantified and compared to normal ( cf. Carditto v. Xenakis, 31 AD3d 683; Kauderer v. Penta, 261 AD2d 365). In addition, Dr. Tsatskis detected tenderness over the paravertebral musculature of plaintiff's cervical spine, and a weakness in motor strength, both of which he stated indicated an injury to and pressure on the nerve roots, thereby reinforcing his opinion that plaintiff sustained a significant limitation of use of the cervical spine ( see Mikl v. Shufelt, 285 AD2d 949, 950). Moreover, the affirmed MRI report relied upon by Dr. Tsatskis indicated, inter alia, right paracentral disc herniation at C4-5; posterior disc bulging with effacement of the anterior aspect of the subarachnoid space at C5-6 and C6-7; curvature of the cervical spine consistent with muscle spasm; and derangement of the cervical spine, each of which served to confirm his clinical conclusion based on objective testing that the subject motor vehicle accident was the cause of plaintiff's current condition. While defendants' experts conclude otherwise, the findings of plaintiff's experts are sufficient to raise triable issues of fact regarding plaintiff's claims of serious injury under the "significant limitation of use" and "permanent consequential limitation of use" categories set forth in the Insurance Law ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, supra). Plaintiff has, moreover, tendered a viable explanation for the cessation or gap in treatment by his chiropractor through, e.g., the affidavit of the former and the affirmation of his examining physician, both of whom agreed that further treatment would only be palliative in nature ( see Pommells v. Perez , 4 NY3d 566 ).
However, no triable issues of fact have been raised as to plaintiff's claims of "permanent loss", since there is no proof of his "total" loss of use of any body organ, member, function or system ( see Oberly v. Bangs Ambulance, 96 NY2d 295, 297, 299). Similarly, there is insufficient proof that plaintiff was prevented from performing the greater part of his normal daily activities during the 90/180 statutory period ( see Palmer v. Moulton , 16 AD3d 933 , 935). Thus, plaintiff's claims of injury under these categories may not be considered at any ensuing trial ( id.).
With regard to the cross motions of defendants CALLERY and FAVALORO for summary judgment on the issue of liability, the EBT testimony of the parties indicates CALLERY was involved in the subject motor vehicle accident when he was struck from behind by FAVALORO.
In the case of defendant FAVALORO, his cross motion on the issue of liability is based on the contention that his vehicle was involved in a separate collision which occurred ten minutes after plaintiff's accident, and that such collision did not result in any impact to plaintiff's vehicle. According to FAVALORO, plaintiff testified at his EBT that his vehicle was struck twice in rear, once by the PISCIOTTANO vehicle, and a second time when the third vehicle struck the PISCIOTTANO vehicle, causing the latter to strike plaintiff's vehicle for a second time. CARROLL further testified that his vehicle was not struck from behind by any other vehicle, and that it was ten minutes later that he heard a second accident taking place behind him.
Plaintiff contends that issues of fact exist regarding FAVALORO's and CALLERY's liability in view of the conflicting EBT testimony regarding the happening of the subject accident. The Court agrees.
Accordingly, it is
ORDERED that the motion and cross motions of defendants STEVEN CARROLL, ANTHONY PISCIOTTANO, MARIA PISCIOTTANO, UMAR MAHFOOZ and KASHIF MAHFOOZ for summary judgment on the issue of serious injury are denied in their entirety; and it is further
ORDERED that the cross motions for summary judgment on the issue of liability for dismissal against defendants RICHARD CALLERY and CHRISTOHPER FAVALORO are denied.
This shall constitute the decision and order of the court.