Opinion
05-1409.
May 4, 2009.
GRUNDFAST HIGHAM, Attorneys for Plaintiff Zuniga, Stony Brook, NY.
KETOVER ASSOCIATES, Attorneys for Plaintiff Morales, Garden City, NY.
NICOLINI, PARADISE et al., Attorneys for Defendants, Mineola, NY.
Upon the following papers numbered 1 to 42 read on this motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers 1 — 23; Notice of Cross Motion and supporting papers__________; Answering Affidavits and supporting papers 24-40; Replying Affidavits and supporting papers 41-42; Other__________; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that defendants' motion for summary judgment dismissing the complaint is granted
Plaintiff Milton Zuniga commenced this action to recover damages for personal injuries allegedly sustained in a motor vehicle accident that occurred on Great Neck Road in the Town of Babylon January 19, 2002. The collision allegedly occurred when a vehicle operated by defendant Volodymar Buryak and owned by defendant Yuriy Buryak crossed over a divider and struck the vehicle operated by plaintiff Zuniga. By order issued March 13, 2006, this Court granted a motion by defendants to consolidate the instant action with an action, assigned index number 04-1410, brought by plaintiff Nelson Morales, who was riding as a passenger in the Zuniga vehicle at the time of the accident. By his bill of particulars, plaintiff Zuniga alleges that he sustained various serious injuries due to the accident, including cervical disc bulges at levels C3-C4 through C5-C6; a lumbar disc herniation at level L4-L5; and cervical and lumbar radiculopathy. Plaintiff Morales's bill of particulars alleges that he suffered, among other things, lumbar disc bulges at levels L3-L4 through L5-S1; spasms and tenderness in the paraspinal muscles and in the shoulder regions; and straightening of the normal curvature of the spine. Both plaintiffs allege that they suffered injuries within the permanent loss of use category, the "limitation of use" categories, and the 90/180 category as a consequence of the January 2002 collision ( see Insurance Law § 5102 [d]).
Defendants now move for summary judgment dismissing the complaint on the ground that neither plaintiff Zuniga nor plaintiff Morales suffered a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident. Defendants' submissions in support of the motion include copies of the pleadings; transcripts of plaintiffs' deposition testimony; and sworn medical reports prepared by Dr. Vartkes Khachadurian, Dr. Mathew Chacko, Dr. Arthur Bernhang, and Dr. Beatrice Enstrand. At defendants' request, Dr. Khachadurian, a orthopaedic surgeon, and Dr. Chacko, a neurologist, examined plaintiff Zuniga in November 2007 and reviewed medical reports related to the injuries alleged in this action. Dr. Bernhang, an orthopaedic surgeon, and Dr. Engstrand, a neurologist, examined plaintiff Morales and reviewed medical records regarding his injuries on behalf of defendants in August 2006. Plaintiff Morales opposes the motion, arguing that defendants' failed to meet their initial burden or, alternatively, that the evidence presented in opposition raises a triable issue as to whether he suffered a serious injury in the accident. In opposition, plaintiff Morales submits a copy of his bill of particulars; an affirmation of Dr. Ghazanfar Haidery; medical records related to plaintiff Morales's injuries prepared by Dr. Haidery and other treating physicians; a transcript of plaintiff Morales's deposition testimony; and his own affidavit. Plaintiff Zuniga did not submit any papers in opposition to defendants' motion.
Insurance Law § 5102 (d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
It is for the court to determine in the first instance whether a plaintiff claiming personal injury as a result of a motor vehicle accident has established prima facie that he or she sustained "serious injury" and may maintain a common law tort action ( see Licari v Elliott , 57 NY2d 230, 455 NYS2d 570; Tipping-Cestari v Kilhenny , 174 AD2d 663, 571 NYS2d 525 [2d Dept 1991]). A defendant seeking summary judgment on the ground that a plaintiff's negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" ( see Toure v Avis Rent A Car Sys. , supra; Gaddy v Eyler , 79 NY2d 955. 582 NYS2d 990). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, i.e., affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law ( Pagano v Kingsbury , 182 AD2d 268, 270, 587 NYS2d 692 [2d Dept 1992]). A defendant also may establish entitlement to summary judgment using the plaintiff's deposition testimony and medical reports and records prepared by the plaintiff's own physicians ( see Fragale v Geiger , 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Torres v Micheletti , 208 AD2d 519, 616 NYS2d 1006 [2d Dept 1994]; Craft v Brantuk , 195 AD2d 438, 600 NYS2d 251 [2d Dept 1993]; Pagano v Kingsbury , supra). Once a defendant meets this burden, the plaintiff must present proof in admissible form which creates a material issue of fact ( see Gaddy v Eyler , supra; Pagano v Kingsbury , supra; see generally, Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595)
To recover under the "permanent loss of use" category, a plaintiff must demonstrate a total loss of use of a body organ, member, function or system ( Oberly v Bangs Ambulance , 96 NY2d 295, 299, 727 NYS2d 378). A plaintiff claiming injury within the "limitation of use" categories must substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitation of movement caused by the injury and its duration ( see Laruffa v Yui Ming Lau , 32 AD3d 996, 821 NYS2d 642 [2d Dept 2006]; Cerisier v Thibiu , 29 AD3d 507, 815 NYS2d 140 [2d Dept 2006]; Meyers v Bobower Yeshiva Bnei Zion , 20 AD3d 456, 797 NYS2d 773 [2d Dept 2005]). He or she must present medical proof contemporaneous with the accident showing the initial restrictions in movement or an explanation for its omission ( see Hackett v AAA Expedited Freight Sys . . 54 AD3d 721, 865 NYS2d 101 [2d Dept 2008]; Ferraro v Ridge Car Serv. , 49 AD3d 498, 854 NYS2d 408 [2d Dept 2008]; Morales v Daves , 43 AD3d 1118, 841 NYS2d 793 [2d Dept 2007]; Bell v Rameau , 29 AD3d 839, 814 NYS2d 534 [2d Dept 2006]), as well as objective medical findings of restricted movement that are based on a recent examination of the plaintiff ( see Berkowitz v Taylor , 47 AD3d 740, 851 NYS2d 597 [2d Dept 2008]; Laruffa v Yui Ming Lau , supra; Murray v Hartford , 23 AD3d 629, 804 NYS2d 416 [2d Dept 2005], lv denied 6 NY3d 713, 816 NYS2d 748; Batista v Olivo , 17 AD3d 494, 795 NYS2d 54 [2d Dept 2005]; Kauderer v Penta , 261 AD2d 365, 689 NYS2d 190 [2d Dept 1999]). "Whether a limitation of use or function is `significant' or `consequential' * * * relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" ( Dufel v Green , 84 NY2d 795, 798, 622 NYS2d 900; see Toure v Avis Rent A Car Sys. , 98 NY2d 345, 746 NYS2d 865). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute ( see, Licari v Elliott , 57 NY2d 230, 455 NYS2d 570). Also, a plaintiff claiming serious injury within the limitation of use categories who ceases treatment after the accident must provide a reasonable explanation for having done so ( Pommells v Perez , 4 NY3d 566, 574, 797 NYS2d 380; see Ferebee v Sheika , 58 AD3d 675, 873 NYS2d 93 [2d Dept 2009]; Besso v DeMaggio , 56 AD3d 596, 868 NYS2d 681 [2d Dept 2008]).
Further, to qualify as a serious injury within the 90/180 category, there must be objective medical evidence of a medically-determined injury or impairment of a non-permanent nature, as well as evidence that plaintiff's activities were significantly curtailed due to such injury ( see Licari v Elliott , 57 NY2d 230, 455 NYS2d 570; Hamilton v Rouse , 46 AD3d 514, 846 NYS2d 650 [2d Dept 2007]; Ocasio v Henry , 276 AD2d 611, 714 NYS2d 139 [2d Dept 2000]). In addition to demonstrating an inability to perform "substantially all" usual activities for at least 90 days of the 180 days following the accident, a plaintiff asserting a 90/180 claim must show through competent medical evidence that his or her inability to perform such activities was medically indicated and causally related to the subject accident ( see Joseph v A H Livery , 58 AD3d 688, 871 NYS2d 663 [2d Dept 2009]; Penaloza v Chavez, 48 AD3d 654, 852 NYS2d 315 [2d Dept 2008]; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535, 846 NYS2d 613 [2d Dept 2007]; Sainte-Aime v Ho, 274 AD2d 569, 712 NYS2d 133 [2d Dept 2000]).
Defendants' submissions establish prima facie that plaintiff Zuniga did not suffer a serious injury as a result of the subject accident ( see Pamphile v Bastien , ___ AD3d ___, 2009 WL 943648 [2d Dept, April 7, 2009]; Shevardenidze v Vaiana, _ AD3d _, 875 NYS2d 119 [2d Dept 2009]; Morris v Edmond, 48 AD3d 432, 850 NYS2d 641 [2d Dept 2008]; Hasner v Budnik, 35 AD3d 366, 826 NYS2d 387 [2d Dept 2006]). The medical report of Dr. Khachadurian states that plaintiff Zuniga demonstrated normal range of motion in his cervical and lumbar regions, and that examination of these regions produced no evidence of spasm or radicular pain to the extremities. It states that plaintiff exhibited normal reflexes, muscle power and sensation in his extremities, and that there was no evidence of atrophy. Dr. Khachadurian concludes that the examination of plaintiff Zuniga produced no clinical evidence of neuromotor deficits, herniated discs, radiculitis or radiculopathy in the cervical or lumbar spine, and that he does not suffer from any orthopedic disability as a result of the subject accident. Similarly, Dr. Chacko states that plaintiff Zuniga had full range of motion in his spine, with no tenderness or spasm detected on palpation. It states plaintiff Zuniga walked with a normal gait, and had normal muscle tone and strength in his upper and lower extremities, normal deep tendon reflexes, and normal sensation. Dr. Chacko concludes that the examination of plaintiff Zuniga revealed no evidence of any neurological sequelae attributable to the November 2002 accident. He further states that plaintiff Zuniga is not disabled and is capable of performing the activities of normal daily living.
Further, at a deposition conducted in December 2006, plaintiff Zuniga testified, among other things, that he received six months of medical treatment for complaints of neck and back pain from Bedford Avenue Chiropractic Rehabilitation following the accident. When questioned about his current complaints, he testified he now felt "fine," but was unable to lift heavy items or work out at the gym. He also testified that he missed only five or six days from his job as a supervisor at a fast food restaurant, where he works 10-hour days, due to his injuries. In addition, plaintiff Zuniga testified that prior to the subject accident he had suffered neck and back injuries in a different motor vehicle accident.
The burden, therefore, shifted to plaintiff Zuniga to present evidence raising a triable issue of fact ( see Gaddy v Eyler , supra). However, as stated above, he failed to submit papers in opposition to defendants' summary judgment motion.
Defendants' submissions also are sufficient to demonstrate prima facie that plaintiff Morales did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d) ( see Morris v Edmond , supra; Washington v Cross, 48 AD3d 457, 849 NYS2d 784 [2d Dept 2008]; Hasner v Budnik, supra). Plaintiff Morales testified at his deposition that two days after the subject accident he Bought medical treatment from Bedford Avenue Chiropractic for pain in his neck, back and right knee. He testified that he treated at this facility four days a week for six months, and then stopped receiving medical care for his injuries. When questioned why he stopped seeking medical treatment, plaintiff Morales testified, "Because I felt that it was not doing me any good. Besides that, they told me that the insurance was not going to continue covering and I could not pay that treatment from my own pocket." However, plaintiff Morales also testified that at the time of the accident he had health insurance coverage through his employment. He further stated that he was not confined to home for any period of time after the accident, and that he missed just three days of work due to his injuries. He testified that he had problems lifting heavy items when he returned to job as a restaurant manager after the accident, and that he currently has difficulty playing sports and cleaning the house. Moreover, the medical reports of defendants' experts state that plaintiff Morales suffered only sprains and strains in the cervical and lumbar regions as a result of the accident, and that such conditions have resolved without any residual disability.
Contrary to the assertions by his counsel, the evidence submitted in opposition failed to raise a triable issue as to whether plaintiff Morales suffered a serious injury due to the subject accident. Initially, the Court notes that the unsworn medical reports of plaintiffs treating doctors and chiropractor, namely Dr. John Rigney, Dr. Eduard Milman, Dr. Husseyin Tuncel and Matthew DeGaetano, were not in admissible form and, therefore, were not considered in the determination of the motion ( see Grasso v Angerami , 79 NY2d 813, 580 NYS2d 178; Luna v Mann, 58 AD3d 699, 872 NYS2d 467 [2d Dept 2009]; Pagano v Kingsbury, supra). The affirmation of Dr. Ghazanfar Haidery is insufficient to defeat summary judgment, as it is clear he impermissibly relied on the unsworn reports of other medical providers in reaching his conclusion that plaintiff sustained "significant limitations of motion" in his lumbar spine as a result of the accident ( see Magid v Lincoln Servs. Corp.,_ AD3d _, 2009 WL 884786 [2d Dept, March 31, 2009]; Sorto v Morales, 55 AD3d 718. 868 NYS2d 67 [2d Dept 2008]; Uribe-Zapata v Capallan, 54 AD3d 936, 864 NYS2d 118 [2d Dept 2008]; Verette v Zia, 44 AD3d 747, 844 NYS2d 71 [2d Dept 2007]). Further, a review of the records annexed to the opposition papers shows Dr. Haidery, who apparently had been affiliated with Millennium Physical Therapy in 2002, but now owns his own professional medical service corporation, examined plaintiff Morales on three occasions: January 29 and March 12, 2002, and September 23, 2008. In fact, when asked about the treatment he received following the accident, plaintiff Morales testified he could not recall the names of any other health providers who treated him for his injuries, but did recall being sent to other facilities for medical testing. In addition to failing to provide any information regarding the amount and nature of the medical care actually provided by Millennium Physical Therapy, Dr. Haidery's affirmation failed to explain the more than six-year gap in time between plaintiff Morales's cessation of medical treatment six months after the subject accident and the reexamination conducted in September 2008 after the instant motion was made ( see Pommells v Perez , supra; Ning Wang v Harget Cab Corp., 47 AD3d 777, 850 NYS2d 537 [2d Dept 2008]; Verette v Zia, supra; Phillips v Zilinsky, 39 AD3d 728, 834 NYS2d 299 [2d Dept 2007]; McNeil v Dixon, 9 AD3d 481, 780 NYS2d 635 [2d Dept 2004]). And while the affirmation does provide the range of motion measurements of plaintiff's lumbar spine taken during the September 2008 examination, Dr. Haidery fails to compare such findings with what is considered normal lumbar joint function ( see Lopez v Felton ,_ AD3d _, 875 NYS2d 550 [2d Dept 2009]; Smeja v Fuentes, 54 AD3d 326, 863 NYS2d 689 [2d Dept 2008]). Thus, Dr. Haidery's conclusions regarding the cause, duration and significance of plaintiff Morales's spinal injuries are speculative and his affirmation is without probative value ( see Sapienza v Ruggiero , 57 AD3d 643, 869 NYS2d 192 [2d Dept 2009]; Malave v Basikov, 45 AD3d 539, 845 NYS2d 415 [2d Dept 2007]; Verette v Zia, supra).
Further, plaintiff Morales failed to submit any medical evidence showing he suffered a total loss of use of his spine or any other body part ( see Oberly v Bangs Ambulance , supra; Amato v Fast Repair Inc., 42 AD3d 477, 840 NYS2d 394 [2d Dept 2007]; see also Candia v Omonia Cab Corp. , 6 AD3d 641, 775 NYS2d 546 [2d Dept 2004]). He also failed to proffer competent medical evidence demonstrating that the injuries allegedly sustained rendered him unable to perform substantially all of his usual daily activities for at least 90 of the 180 days following the subject accident ( see Luizzi-Schwenk v Singh , supra; Roman v Fast Lane Car Serv., Inc., supra; Sainte-Aime v Ho, supra).
Finally, plaintiff Morales's affidavit, which alleges that he continues to experience "ongoing pain" in his neck and back, as well as "recurring pain" in his right knee, and that he is unable to engage in activities like basketball, soccer or to help with household chores, is insufficient to raise a triable issue as to whether he suffered injury within the "significant limitation of use" category as a result of the accident ( see Casas v Montero , 48 AD3d 728, 853 NYS2d 358 [2d Dept 2008]; Shvartsman v Vildman, 47 AD3d 700, 849 NYS2d 600 [2d Dept 2008]). Accordingly, defendants' motion for summary judgment dismissing the complaint is granted.