SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
CHANG Y. HWANG
MICHELE M. WOODARD
Plaintiff
TRIAL/IAS Part 14
Index No. :Ol0775/06
Motion Seq. No. : 01
-against-
JOSEPH C. LAYER and SYSTEMATIC HYDRONIC
SYSTEM
Defendants.
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DECISION AND ORDER
Papers Read on this Motion:
Defendants ' Notice of Motion
Plaintiff s Affrmation in Opposition
Defendants ' Reply Affrmation
The defendants move by Notice of Motion for an Order pursuant to CPLR 93212 dismissing the
complaint on the grounds that Plaintiff, Chang Y. Hwang did not sustain a serious injur
as
required by
Insurance Law 95102 (d). The parties were involved in a motor vehicle accident that occurred on
October 14
2005. The plaintiff alleges the he was rear ended by defendant , Joseph C. Layer.
On a motion for summar judgment where the issue is whether a Plaintiff has sustained a
serious injury under the no- fault law , the movant bears the initial burden of presenting competent
evidence that there is no cause of action
(Hughes
Cai,
31 AD 3d 385 (2d Dept 2006);
Browdame
Candura 25 AD3d 747 , 748 (2d Dept 2006)). Defendant's medical expert must specify the objective
tests upon which the stated medical opinions are based and , when rendering an opinion with respect to
the Plaintiff s range of motion , must compare any findings to those ranges of motion considered normal
Candura, supra at 748). Even where there is medical proof
(Browdame
for the particular body part
when contributory factors interrpt
the chain of causation
between the accident and the claimed
injury-such as a gap in treatment , an intervening medical problem or a pre-existing condition-summary
Harris
Perez 4 NY3d 566, 572 (2005);
(Pommells
dismissal of the complaint may be appropriate
Boudart 2008 WL 2625142 (N. Y. Sup. 2008)). Whether a limitation of use or function is significant or
consequential relates to medical significance and involves a comparative determination of the degree or
Page 1 of 4
qualitative nature of an injury based on the normal function , purpose and use of a body part
(Dufel
Green 84 NY2d 795 , 798 (1995)).
A movant's failure to satisfy his burden on a summary judgment motion requires denial of the
Yaser 41 AD3d 698 , 700 (2d
Staubitz
motion regardless of the suffciency ofthe opposing papers.
Cai 31 AD3d 385 (2d Dept 2006). It is only if Defendants successfully make the
Hughes
Dept 2007);
, based on
necessary showing that the burden shifts to Plaintiff to proffer competent medical evidence
, by the
objective medical findings and diagnostic tests , to support the serious injury claim or to show
submission of objective proof of the nature and degree of the injury, the existence of questions of fact
27 AD3d
Leslie,
Flores
falls within the ambit of the statute.
vis a vis
whether the purported injur
220 221 (1
Dept 2006);
Garcia
Morgan 305 AD2d 634 (2d Dept 2003). Conclusions , even of an
examining doctor , which are unsupported by acceptable objective proof are insufficient to defeat a
summar judgment motion on the threshold issue of whether Plaintiff has suffered a serious physical
injury.
Mobley
Riportella 241 AD2d 443 , 444 (2d Dept 1997).
In support of the motion , defendants submit the affirmed report of Dr. Drew A. Stein
, an
orthopedic surgeon. Upon examination , Dr. Stein noted a full range of motion of the cervical spine with
regard to forward flexion , extension and rotation to the right and left. Range of motion testing of the
lumbar spined also revealed full range of motion with regard to flexion , extension and right and left
rotation. Dr. Stein opined that there was " no orthopedic disability noted upon the physical examination
performed. " Dr. Stein further opined that the plaintiff is capable of working full duty at his occupation
and is able to perform pre-accident status level of living activities with no restrictions.
The defendants also submit the affrmed report of Dr. Ravi Tikoo, a neurologist. After
examination Dr. Tikoo opined that the plaintiff is not disabled from a neurological basis. Dr. Tikoo
noted that the plaintiff is able to work in a normal capacity.
Defendants also submit the report of Audrey Eisenstadt , a radiologist. Dr. Eisenstadt reviewed
Plaintiffs MRI of the lumbar spine and found desiccation at L4- 5 intervertebral disc level. However
disease.
Dr. Eisenstadt opined that the findings were indicative of pre-existing, degenerative
showing that the Plaintiff
prima facie
The deposition testimony alone of a Plaintiff may make a
5102(d)
(see Sanchez
Wiliamsburg Volunteer
did not sustain a serious injury under Insurance Law
of Hatzolah, Inc. 48 AD3d 664). Here , Plaintiff' s deposition testimony demonstrated that Plaintiffs
Page 2 of 4
.. .
alleged injuries
:r'
. 1
m from performing substantially all of the material acts constituting
his customary daily activities at least 90 out of 180 days following the collision.
Based on the reports of Drs. Stein , Tikoo and Eisenstadt and Plaintiff s deposition transcript , the Court
concludes that defendants have established prima facie that Plaintiff has not sustained a serious injury
within the meaning ofInsurance Law 95102. Accordingly, the burden shifts to Plaintiff to demonstrate
that he sustained a serious injury.
In opposition to the motion for summary judgment , Plaintiff submits an affidavit and report
2009.
from Dr. Y ong Suk Tak. Dr. Tak examined Plaintiff on October 19 2005 and February 25
Plaintiff underwent range of motion testing of the lumbar spine with a goniometer which revealed
flexion is 75 degrees with 90 degrees as normal , extension is 15 degrees with 30 degrees being normal
and lateral bending is 20 degrees with 30 degrees being normal. Range of motion testing of the right
shoulder revealed flexion is 160 with 180 being normal , abduction is 150 degrees with 180 degrees
being normal and external rotation was 70 degrees with 90 degrees being normal. Range of motion
testing of the cervical spine revealed normal results. An MRI of the lumbosacral spine taken on
, L2- 3 and L4- 5 disc bulge
December 9 , 2005 revealed mild straightening of the lumbar lordosis , Llindenting the thecal sac and L5- S 1 disc bulge indenting the anterior epidural fat. Dr. Tak opined that
Plaintiff is " currently parially disabled to a level of 15%. " Dr. Tak further opined that Plaintiffs
injuries were causally related to the subject motor vehicle accident.
Plaintiff also submits the affrmed reports of Dr. Edward E. Lee. Plaintiff was evaluated by Dr.
Lee on October 19, 2005 and November 21 2005. Dr. Lee noted a decreased range of motion ofthe
right shoulder however the amount was not quantified.
Plaintiff also submits an affidavit from Dr. Richard A. Heiden, a radiologist. Dr. Heiden
reviewed an MRI of the Plaintiff s lumbar spine which revealed , L 1- L2 disc bulge indenting the thecal
sac , L2- L3 disc bulge indenting the thecal sac , L4- L5 disc bulge indenting the thecal sac and L5-
S1 disc
bulge indenting the anterior epidural fat.
Plaintiff has satisfied his burden of demonstrating, by the submission of objective proof of the
nature and degree of the injury, that there are questions of fact as to whether he sustained a serious
injury. Specifically there is a question of fact as to whether Plaintiff has suffered a " permanent
consequential limitation of use of a body organ or member"
Page 3 of 4
or a " significant limitation of a use of a
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physicians ' affirmations with objective medical evidence of injuries in the form ofrange of motion
testing, Although there was a gap in Plaintiffs treatment , Dr. Tak' s affdavit states that Plaintiff was
unable to continue treatment because his no- fault benefits were terminated and he could not continue to
payout of pocket for treatment. Accordingly, Defendants motion for summary judgment dismissing the
complaint is denied. It is hereby
ORDERED, that the parties are directed to appear for trial on May 14 2009 at 9:30 a. m, in
DCM.
This constitutes the Decision and Order of the Court.
DATED:
April 30 ,
2009
Mineola , N, y'
11501
ENTER:
HON. MICHELE M. WOODARD
H:\Hwang v, Layer.wpd
ENTI;RED
2009
NASSAU COUNTY
COUNTY CLERK' S OFFICE
MAY
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