Opinion
161172QCV2006.
Decided May 17, 2010.
Upon the foregoing cited papers, the decision on the defendant's motion for summary judgment based upon the ground that the plaintiff did not sustain a serious injury as required by New York State Insurance Law is as follows:
This action was commenced by the plaintiff to recover damages for injuries allegedly sustained on April 4, 2004 at or near the intersection of Baisley Boulevard and Montalk (sic) Street, in the County of Queens, City and State of New York. Plaintiff commenced this action by filing a Summons and Indorsed Complaint on September 28, 2006. Issue was joined by the service of a Verified Answer on or about February 27, 2007. The plaintiff's served a Verified Bill of Particulars on May 12, 2008. A Notice of Trial has not been filed.
Although the plaintiff's Indorsed Complaint alleged that the accident occurred on April 4, 2004, the plaintiff's Verified Bill of Particulars indicated that the date of the accident was April 29, 2004, and the plaintiff also testified to that the accident occurred on April 29, 2004 at his deposition which was held on May 28, 2009.
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 eliminate any material issues of fact from the case. ( Winegrad v New York, 64 NY2d 851).
In support of the motion, the defendant has annexed the pleadings, including the verified bill of particulars and supplemental bill of particulars; plaintiff's responses to combined demands; the plaintiff's deposition transcript dated May 28, 2009; plaintiff's medical records from Quest Medical, P.C. (Dr. Gabinsky's report dated April 30, 2004); MRI report of Canarsie Radiology Associates dated June 10, 2004; and the affirmed reports of Dr. Michael J. Katz, orthopedist and Dr. Monette G. Basson, neurologist. The defendant also submitted the reports of chiropractor Kevin Portnoy, D.C.; acupuncturist Louis Kiwala; and, an IME report of Dr. Harold Schecter dated June 17, 2004.
In the verified bill of particulars, the plaintiff alleged that as a result of the accident, he sustained serious injuries to his lower back (including permanent nerve damage), right leg, and right thigh. In the supplemental bill of particulars the plaintiff alleged additional injuries including the following: disc bulging at the left at C-D level; acute sprain of the dorsal and lumbosacral paraspinal muscles and ligaments; myofascitis; right quadiceps myositis and myalgia; bulging discs at L3-L4; lumbosacral radiculopathy; right thigh, right calf myalgia. In his verified bill of particulars the plaintiff alleged that he had to take days off from work for treatment and eventually had to leave work due to back nerve pain. He stated that he was not confined to home, bed or hospital. In the supplemental bill of particulars he alleged that he lost ten days from work and had to stop working full time due to permanent nerve damage to his back.
The plaintiff gave sworn testimony on May 28, 2009. He testified that following the accident, he had missed about seven days from work and had to take about ten half-days off. The plaintiff attested to being in an automobile accident on September 21, 1996 and March 21, 2006, however he did not sustain any injuries and did not undergo any medical treatment.
According to the report of plaintiff's doctor, Dr. Gabinsky dated August 30, 2004, the plaintiff presented to the office one day after the accident with complaints of pain in the chest and lower back, and plaintiff also complained of headaches. On examination the plaintiff's cervical spine was normal. The doctor noted mild pain in the sternal ribs with deep breathing, and at palpation. Pain and tenderness were noted in the lumbosacral, paraspinal muscles, radiating to the buttocks and legs. Sensory examination of the upper and lower extremities was normal. The doctor ordered a MRI of the lumbosacral spine and neurology and psychiatric consults.
According to the MRI report of the lumbar spine taken on June 10, 2004 at Canarsie Radiology Associates, the left ligamentum flavyum at the B-C level appeared thickened. There was minimal later disc bulging toward the left at C-D level. The impression was transitional vertebra at the lumbosacral junction making the numbering arbitrary and hypertrophy of the ligamentum flavum on the left side at one level.
The Court noted that the independent examination reports of Kevin Portnoy, D.C. and acupuncturist Louis Kiwala are not in admissible form ( see CPLR 2106; Ly v Holloway , 60 AD3d 1006 ; Casas v Montero , 48 AD3d 728 , 729), however, the plaintiff failed to object. The plaintiff's failure to object to the admissibility of the reports has resulted in a waiver ( Shinn v Catanzaro , 1 AD3d 195 , 197; Cont. Med. P.C., v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50235[U] [App Term, 2d 11th Jud Dists 2009]). Kevin Portnoy, D.C. stated in the June 16, 2004 report that the plaintiff had normal range of motion in the cervical and lumbar spine and upper and lower extremities. However, he failed to compare the range of motion to normal values ( DeLuca v Miceli , 37 AD3d 643 ; Zheng v Yi, 17 Misc 3d 132[A], 2007 NY Slip Op 52038[U] [App Term, 2d 11th Jud Dists 2007]).
Dr. Schecter performed an independent internal medicine examination of the plaintiff on June 17, 2004. Examination of the hip revealed intact but painful range of motion. Range of motion of the cervical spine was normal. On examination of the plaintiff's back, the doctor noted paralumbar muscle spasm. He stated range of motion of the lumbar spine was intact but painful. Examination of the right leg was normal. In his opinion, the plaintiff "still had significant functional impairment arising from the injuries sustained in the accident and since he had only had two months of treatment, he recommended at least four more weeks of physical therapy" three times a week to the back and the leg. Although Dr. Schecter failed to describe how range of motion testing was performed on the cervical spine, back and right leg ( Chiara v Dernago , 70 AD3d 746 ; Giammalva v Winters , 59 AD3d 595 ), and Dr. Schecter failed to quantify range of motion testing in the cervical and lumbar spine, extremities and right hip and make a comparison with normal values ( DeLuca v Miceli , 37 AD3d 643 ; Zheng v Yi, 17 Misc 3d 132[A], 2007 NY Slip Op 52038[U] [App Term, 2d 11th Jud Dists 2007]) in his opinion, the plaintiff had sustained injuries to the back and leg warranting further treatment.
Acupuncturist Louis Kiwala examined the plaintiff on November 9, 2004. He reviewed various medical records and performed an examination. He provided numeric percentages for those findings and compared the percentages to that which is normal. His impression was normal range of motion in the hips, upper and lower extremities and the cervical and lumbar spine. His diagnosis was lumbosacral sprain/strain, which had resolved. In his opinion, the injuries sustained were causally related to the accident.
Dr. Katz performed an orthopedic examination of the plaintiff on July 16, 2009. After reviewing various medical records and performing an examination, in his opinion, the plaintiff had normal range of motion in the cervical and lumbar spine, right knee and right calf, right knee and right thigh. The doctor provided numerical percentages for his range of motion findings and made a comparison with normal values. The doctor reviewed the plaintiff's MRI of the lumbar spine and in his opinion the transitional vertebra at the lumbosacral junction caused a "higher incidence of recurrent pain in individuals with transitional vertebra", however he failed to state the basis for this opinion.
Dr. Basson performed a neurological examination of the plaintiff on July 6, 2009. After reviewing various medical records and performing an examination the doctor stated that the plaintiff was holding his right leg stiffly in such a way that in her opinion did not suggest any organic dysfunction. Lumbar range of motion was normal except for decreased range of motion on flexion was 60 degrees (90 normal). Motor and sensory examination was normal in all four extremities. Range of motion of the cervical spine was normal. The doctor provided numerical percentages for his range of motion findings and made a comparison with normal values. Straight leg raising was able to be carried out to 90 degrees, which was normal, bilaterally, however, the plaintiff complained of pain on the right side in the thigh, not the back at 90 degrees. In the doctor's opinion, the MRI report of the plaintiff's lumbar spine was normal except for "transitional verterbra at one level which she stated was congenital and as to the hypertrophy of the ligamentum flavum, she stated the finding was unrelated to any acute injury. She stated that the plaintiff was without any neurological disability.
The Court believes that the inconsistencies in the defendant's experts range of motion findings in the lumbar spine is problematic for the defendant. Initially, the affirmed report of defendant's neurologist indicated the existence of limitation of motion in the plaintiff's lumbar spine which alone would result in the denial of the defendant's motion ( see Ramjohn v Allstar Limousine Serv., 27 Misc 3d 128[A], 2010 NY Slip Op 50589[U] [App Term, 2d, 11th 13 Jud Dists 2010; Sanchez v Sanders, 24 Misc 3d 136[A], 2009 NY Slip Op 51498[U] [App Term, 2d, 11th 13th Jud Dists 2009]). Additionally, acupucturist, Louis Kiwala found normal range of motion in the lumbar spine on contemporaneous examination of the plaintiff but Dr. Basson stated in her report of July 6, 2009 that based upon a recent examination, the plaintiff had decreased range of motion in the lumbar spine of flexion of 60 degrees (90 degrees normal) without any explanation. Dr. Katz noted in his recent report dated July 16, 2009 that the plaintiff had full range of motion in the lumbar spine. These discrepancies also raise an issue of fact as to the plaintiff's claim of injury to his lumbar spine ( Bailey v Singh, 24 Misc 3d 142[A], 2009 NY Slip Op 51726[U] [App Term, 2d 11th Jud Dists 2009]). As the defendant failed to meet their prima facie burden with respect to serious injury as to the plaintiff's lumbar spine, it is not necessary to address the sufficiency of the plaintiff's opposition papers ( Spanos v Harrison , 67 AD3d 893 ; Welch v Penske Truck Leasing Corp. , 29 AD3d 783 ).
However, the defendant did make a prima facie showing that the plaintiff did not sustain a serious injury under the 90/180 day category of the Insurance Law § 5102 ( see Ramjohn v Allstar Limousine Serv., 27 Misc 3d 128[A], 2010 NY Slip Op 50589[U] [App Term, 2d, 11th 13 Jud Dists 2010]; Clermont v City of New York , 27 Misc 3d 130 [A], 2010 NY Slip Op 50617[U] [App Term, 2d, 11th 13 Jud Dists 2010]). In opposition, the plaintiff's submissions were insufficient to raise a triable issue of fact under the 90/180 day category ( Id.)Based upon the aforementioned, the defendant is granted partial summary judgment as to the plaintiff's claim of serious injury under the 90/180 category, however, the remainder of the defendant's motion for summary judgment is denied.
The foregoing constitutes the Decision and Order of the Court.