Ventura v. Martinez

Full title: VENTURA, MILDRED v. MARTINEZ, ABEL A

Court: SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 22

Date published: Jan 8, 2018

2018 N.Y. Slip Op. 30020 (N.Y. Sup. Ct. 2018)

Opinion

Index Number : 151387/2015

01-08-2018

VENTURA, MILDRED v. MARTINEZ, ABEL A

HON. PAUL A. GOETZ J.S.C. Justice

NYSCEF DOC. NO. 33 PRESENT: HON. PAUL A. GOETZ J.S.C. Justice SUMMARY JUDGMENT MOTION DATE __________ MOTION SEQ. NO. 001

Defendants Abel A. Martinez and Camry Leasing, Inc.'s ("Defendants") motion for summary judgment pursuant to CPLR 3212 on the grounds that the injuries allegedly sustained by Plaintiff Mildred Ventura as a result of the January 26, 2014, motor vehicle accident fail to establish serious injury thresholds as defined by Insurance Law § 5102 (d) is decided as follows:

Plaintiff's bill of particulars alleges she sustained injuries to cervical and lumbar spine and right knee. Plaintiff avers that her injuries meet the following Insurance Law § 5102 (d) criteria: significant disfigurement; a fracture; permanent consequential limitation of use; significant limitation of use; and 90/180-day.

Defendants' neurologist, Dr. Naunihal Sachdev Singh examined Plaintiff on February 22, 2016, and found normal ranges of motion for Plaintiff's cervical and lumbar spine, and conducted other objective tests that were negative/normal. Dr Singh concludes that Plaintiff's alleged injuries to her cervical and lumbar spine are resolved.

Defendants' orthopedist, Dr. Arnold T. Berman, examined Plaintiff on March 10, 2016, and found normal ranges of motion for Plaintiff's cervical and lumbar spine and right knee and conducted other objective tests that were negative/normal. Dr. Berman concludes that Plaintiff's alleged injuries to her cervical and lumbar spine and right knee are all resolved with no residuals.

Defendants' radiologist, Dr. Audrey Eisenstadt , reviewed MRI's of Plaintiff's cervical and lumbar spine (both taken on February 19, 2014) on July 1, 2016. Concerning Plaintiff's cervical spine Dr. Eisenstadt found an incidental hemangioma at C5 (an accumulation of blood vessels with no traumatic origin), disc desiccation (drying out of discs with no traumatic etiology), bulging discs indicating disc disease and no disc herniations or annular tears; in short, Dr. Eisenstadt perceived no posttraumatic changes. Regarding Plaintiff's lumbar spine Dr. Eisenstadt found early degenerative changes and no evidence of an osseous contusion or fracture, disc herniation or an annular tear to indicate a recent traumatic injury or one causally related to the accident.

Defendants' submissions fail to eliminate triable issues of fact as to whether Plaintiff sustained serious injuries to her cervical and lumbar spine. Dr. Singh and Dr. Berman conclude that Plaintiff's injuries to her cervical and lumbar spine are resolved but Dr. Eisenstadt concludes that Plaintiff's injuries to her cervical and lumbar spine are the result of degeneration. These contradictory findings concerning Plaintiff's cervical and lumbar spine raise triable issues of fact for the jury to resolve (Karounos v Doulalas, 153 AD3d 1166 [1^st Dept 2017]; Johnson v Salaj, 130 AD3d 502 [1^st Dept 2015]; Martinez v Pioneer Transp. Corp., 48 AD3d 306 [1^st Dept 2008]) and therefore, the burden does not shift to Plaintiff to submit evidence sufficient to raise an issue of fact (Jackson v Leung, 99 AD3d 489 [1^st Dept 2012]).

As to Plaintiff's 90/180-day claim, Defendants merely argue that this category requires proof that Plaintiff was medically prevented from performing substantially all of her usual and customary activities for the requisite period without providing any proof that she was able to do so. Plaintiff's bill of particulars alleges she was confined to her bed for approximately three months and her home for approximately eight months and Defendants provide no evidence to the contrary. Therefore, Defendants also failed to meet their burden as to Plaintiff's 90/180-day claim.

Defendants met their prima facie burden that Plaintiff did not sustain a serious injury to her right knee through the affirmed report of Dr. Berman who found normal ranges of motion and negative/normal test results and concluded that her alleged injury right knee was resolved (Cattouse v Smith, 146 AD3d 670 [1^st Dept 2017]). In opposition Plaintiff failed to raise an issue of fact as to whether Plaintiff sustained a serious injury to her right knee. The only medical evidence submitted by Plaintiff in admissible form are the reports by Defendants doctors. Plaintiff's hospital records may not be considered because they are not certified (CPLR 2306 [a] & 4518 [c]). The medical records may not be considered because they are "certified" and "only hospital records, and not physician office records, are admissible by certification" (Bronstein-Becher v Becher, 25 AD3d 796, 797 [2^nd Dept 2006]) and the MRI reports are not affirmed (CPLR 2106 [a]). Nevertheless, if Plaintiff establishes she sustained a serious injury to either her cervical or lumbar spine, she will be entitled to recover for all her injuries, including to her right knee (Karounos v Doulalas, 2017 NY Slip Op 06602 [1^st Dept Sept. 26, 2017] [holding "[i]f plaintiff establishes a serious injury to her cervical or lumbar spine at trial, she will be entitled to recover damages for any other injuries caused by the accident, even those that do not meet the serious injury threshold."]).

Nothing in Plaintiff's bill of particular or the parties submissions suggest that Plaintiff suffered a disfigurement that "a reasonable person would view as unattractive, objectionable, or as the subject of pity or scorn" (Sidibe v Cordero, 79 AD3d 536 [1^st dept 2010]) or a fracture (Perez Hernandez v M. Marte Auto Corp., 104 AD3d 489 [1^st Dept 2013] [holding contemporaneous hospital records establish fracture]) therefore, Plaintiff may proceed under the permanent consequential and significant limitation of use categories as well as under her 90/180-day claim.

Accordingly, based on the foregoing it is hereby

ORDERED that Defendants' summary judgment motion is GRANTED as to Plaintiff's claim of serious injury to her right knee and claims under the significant disfigurement and fracture categories; and it is further

ORDERED that Defendants' summary judgment motion is DENIED as to Plaintiff's claim of serious injury to her cervical and lumbar spine and under the 90/180-day category; and it is further

ORDERED that the parties are directed to appear for a settlement conference in Part 22, 80 Centre Street, Room 136 on February 20, 2018 at 9:30 AM.

This constitutes the Decision and Order of the Court. Dated: 1/8/18

/s/_________, J.S.C.