SclP
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
Present:
HON. ROY S. MAHON
Justice
TRIAUIAS PART 9
MARIA ELENA BABALlS,
INDEX NO. 20326/06
Plaintiff(s),
MOTION SEQUENCE
NO.
- against ANGELO J. MAZRELLA and MARIE
MOTION SUBMISSION
MAZRELLA,
DATE: April 9, 2008
Defendant(s).
The following papers read on this motion:
Notice of Motion
Affirmation in Opposition
Reply Affirmation
Upon the foregoing papers , the motion by defendants for an Order pursuant to Rule 3212 of the
CPLR granting summary judgment in favor of the defendants , dismissing the plaintiffs complaint on the
ground that there are no question of fact herein , the plaintiffs cause of action is without merit , and that the
defendant is entitled to summary judgment as a matter of law , is determined as hereinafter provided:
This personal injury action arises out of a motor vehicle accident that occurred on July 18 , 2006 at
approximately 2:00 p. m. on Route 24 approximately 100 feet east of Route 107 , Nassau County, NY.
In pertinent part , the plaintiff in the plaintiffs Verified Bill set forth:
Plaintiff Maria Elena Babalis ' injuries were caused and/or created by the
negligence , careless and/or reckless conduct of the defendants as follows:
Status post head trauma with a post concussion headache syndrome
Cervical and lumbar muscle spasm
Cervical radiculopathy
Lumbosacral radiculopathy
Status post left knee trauma
Restricted range of motion of the cervical spine
Restricted range of movement of the cervical spine
Restricted range of motion of the lumbar spine
Restricted range of movement of the lumbar spine
The above injuries are accompanied by severe pain , tenderness , swelling,
stiffness , discomfort , distress , weakness , stress , restriction of motion,
degeneration of the underlying soft tissue , blood vessels , bones , nerves
tendons , ligaments and musculature and all of the natural consequences
flowing therefrom.
Plaintiff has further suffered and continues to suffer severe pain and difficulty
with prolonged sitting, standing, walking, bending, climbing stairs, lifting or
carrying heavy objects ,
performing strenuous
activities and finding
a
comfortable position sleeping.
disruption and
diffic81ty with daily activities , way of life and enjoyment of life including
Plaintiff has and will continue
to experience impairment ,
significant impairment of numerous daily activities that plaintiff had previously
taken for granted.
Any and all of the above injuries wil result in traumatic arthritis and/or onset
of arthritis , osteoarthritic involvement , osteoporosis and/or necrosis at an
earlier age , at an accelerated rate and with greater severity than would have
otherwise occurred.
All of the above injuries are permanent in nature.
The defendants, amongst other things, in support of the defendants ' application submit the June 27
2007 deposition transcript of the plaintiff; an affirmed letter report dated August 24 2007 of Michael J. Katz
, an orthopedist of an August 24 2007 orthopedic evaluation of the plaintiff; an August 30, 2007 affirmed
letter report of Island Neurological Associates , PC by John Kelemen , MD , a neurologist of an August 30
2007 neurological examination of the plaintiff and an August 20 , 2007 affirmed letter report
of Allan
Rothpearl , MD, a radiologist of a review of a December 12 , 2006 MRI of the plaintiffs cervical spine.
The rule in motions for summary judgment has been succinctly re-stated by the Appellate Division
Second Dept. , in Stewart Title Insurance Company, Inc. v. Equitable Land Services, Inc., 207 AD2d
880, 616 NYS2d 650 , 651 (Second Dept., 1994):
It is well established that a party moving for summary judgment must make
a prima facie showing of entitlement as a matter of law , offering sufficient
material issues of fact
853 487 N.
(Winegrad v. New York Univ. Med. Center
49
N. 2d 557 , 562
Zuckerman v. City of New York
316, 476 N. E.2d 642;
2d 595 , 404 N. E.2d 718). Of course , summary judgment is a
427 N.
drastic remedy and should not be granted where there is any doubt as to the
evidence to demonstrate the absence of any
64 N.
existence of a triable issue
2d 851
(State Bank of Albany v. McAuliffe 97 A.D. 2d 607
2d 944), but once a prima facie showing has been made , the
burden shifts to the party opposing the motion for summary judgment to
467 N.
produce evidentiary proof in admissible form sufficient to establish material
(Alvarez v. Prospect Hosp. , 68
issues of fact which require a trial of the action
Zuckerman v. City of
2d 923, 501 N. E.2d 572;
2d 320 , 324 , 508 N.
New York, supra
49 N.
2d at 562 427 N.
2d 595 , 404 N. 2d 718).
It is noted that the question of whether the plaintiff has made a prima facie showing of a serious
injury should be decided by the Court in the first instance as a matter of law (see Licaro v. Ellot, 57 NY2d
230, 455 NYS2d 570, 441 NE2d 1088; Palmerv. Amaker, 141 AD2d 622 , 529 NYS2d 536, Second Dept.,
1988; Tipping- Cestari v. Kilhenny, 174 AD2d 663 , 571 NS2d 525, Second Dept. , 1991).
In making such a determination ,
summary judgment is an appropriate
vehicle for determining
whether a plaintiff can establish prima facie a serious injury within the meaning of Insurance Law Section
5102(d) (see , Zoldas v. Louise Cab Corp., 108 AD2d 378, 381 , 489 NYS2d 468, First Dept., 1985;
Wright v. Melendez , 140 AD2d 337, 528 NYS2d 84 , Second Dept., 1988).
Serious injury is defined , in Section 5102(d) of the Insurance Law , wherein it is stated as follows:
(d) ' Serious injury' means a personal injury which results in death;
loss of a fetus;
dismemberment; significant
disfigurement; a
fracture;
permanent loss of use of a body organ , ember , 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."
In pertinent part , the report of Dr. Katz sets forth:
Examination of the Cervical Spine: There is no tenderness about the cervical
spine and there is no paravertebral muscle spasm. Flexion is present to 50
(normal 500 )
and extension is present to 60 (normal 60
). Lateral flexion is
present with right-sided lateral flexion to 45 (normal 450 ) and left-sided lateral
flexion to 45 (normal 45 ). Right-sided rotation is present to 80 (normal 800
and left-sided rotation is present to 80 (normal 80 ). Motor strength is
present in the C5T1 innervated segments. Sensation is intact in the C5innervated dermatomes. Reflex testing reveals the biceps , triceps , and
brachioradialis reflexes to be 2+ and symmetric. Adson s test is negative.
Examination of the Lumbosacral Spine: The gait was normal without antalgic
or Trendelenburg component. No paravertebral muscle spasm was present.
Active range of motion revealed forward flexion to 90 0 (normal 90 ), full
extension to 30 (normal 30 ), and full lateral and side bending to 30 (normal
). Straight leg raising test was negative. Sensory examination revealed
full sensation to light touch in the L3- S1 dermatomes. Reflexes of the
quadriceps , tibialis posterior and Achilles tendon were 2+ and symmetric
bilateral. Babinski was negative and there was no demonstrable clonus.
Patrick was negative.
Examination of the Left Knee: There is normal valgus attitude about the knee
in the standing position. There is no swelling about the knee. Range of
motion is normal. There is no effusion within the
knee. The range of motion
is 0- 135 (normal 1350 ) in the flexion/extension arc. The patellar reflex is 2+
There is no medial or lateral joint line tenderness. Lachman s test is negative
for anterior/posterior instability. The patellar apprehension test is negative.
The motor strength of the Quadriceps is 5/5. The knee is stable to varus and
valgus stress. There is a negative pivot shift test. The posterior drawer sign
is negative. The posterior sag sign is negative. There is no demonstrable
crepitus. The prepatellar bursa is supple and lacks swelling, erythema, or
induration.
I did the following measurements of the upper extremities: Circumferential
measurements about the right upper extremity are 9 inches at the midportion
and 9 inches on the left at the midportion. Using a power pinch meter , there
was 4 kg of force on the right and 4kg of force on the left. Using a Jaymar
dynamometer , there was 14 kg of force on the right and 14 kg of force on the
left.
Diaanosis:
Cervical strain resolved.
Lumbosacral strain resolved.
Left knee contusion now resolved.
Comment:
This individual is a 54- year-old female who alleged an injury to the neck , back
and left knee. Currently, she shows no signs or symptoms of permanence
relative to the musculoskeletal system. She is currently not disabled. She is
capable of gainful employment in a demanding capacity as a manager. She
is capable of her activities of daily living.
Dr. Kelemen states in said physician s report of neurological examination:
PHYSICAL EXAMINATION:
On examination , the claimant was an alert , cooperative woman in no obvious
distress. She is 5' 1" tall and weighs 105 pounds, and she has dark- brown
eyes and brown hair.
The claimant was able to bend and move without difficulty to remove her
footwear and to get up onto and off the examining table.
Examination of the head revealed no tenderness or bruits.
There was no palpable paracervical , lumbar or occipital tenderness, and there
was no spasm. Straight leg raise testing was negative bilaterally. There was
no sciatic notch tenderness.
MENTAL STATUS:
Mental status examination revealed the following: The claimant was alert and
oriented x3. Recent memory was intact. Language function was intact
without evidence of aphasia. Speech was of normal quality. Higher
integrative functions were normal.
CRANIAL NERVE EXAMINATION:
Olfaction was intact bilaterally.
Visual
fields were full to confrontation.
Funduscopic examination was unremarkable. Pupils were equal , round and
reactive to
light and accommodation. There was no ptosis
and the
extraocular muscles were intact. Corneal reflexes , facial sensation and the
muscles of mastication were intact. There was not facial paresis. Hearing
was grossly normal. There was no nystagmus. Gag reflexes and palatal
movements were intact bilaterally. The sternomastoid muscles were intact
bilaterally. Tongue movements were full , and there was no atrophy of the
tongue.
MOTOR EXAMINATION:
Motor examination revealed intact strength , tone and mass. Finger-to-nose
and heel- to- knee- to-shin testing was intact. Gait , including heel , toe and
tandem walking, was normal. Roomberg test was negative. There were no
abnormal involuntary movements.
Deep tendon reflexes were 2+ in the biceps , brachioradialis , triceps , knees
and ankles , with flexor plantar responses.
SENSORY EXAMINATION:
Sensory examination was intact to primary and cortical modalities.
IMPRESSION:
Status post cervical and lumbar strain.
I find no evidence
of a
neurological abnormality or disability , from a
neurological perspective.
If the history is accurate , this claimant's complaints can be related to the
event of 7/18/06.
Dr. Rothpearl sets forth in his review of his examination of the December 12 , 2006 MRI of the
plaintiffs Cervical Spine:
MRI OF THE CERVICAL SPINE: Examination is dated 12/12/2006.
Multiplanar T1 and T2 weighted acquisitions were obtained. Film quality is
adequate.
There is degeneration at the C2-
, C3-
, C4-
, C5-
, C6- C7 and C7 -
levels , characterized by desiccation of disc material. There is a disc bulge at
, C4- , C5- C6levels where disc material approximates the ventral
thecal sac. The cervical cord and craniocervical junction are unremarkable
in appearance. The visualized osseous structures demonstrate normal
marrow signal characteristics. There is no evidence of central canal stenosis
bony lateral recess stenosis or neural foraminal stenosis.
the C3-
IMPRESSION : Multilevel disc deneration. Minimal degenerative bulges at
C3- , C4- C5 and C5- C6. No evidence of disc herniation. This is not
consistent with the original report which notes disc herniations at C3- , C4C5 and C5- C6. The original report does not specifically note the presence or
degree of multilevel disc degeneration.
COMMENTS ON CAUSAL RELATIONSHIP The presence of disc
degeneration indicates a chronic process of longstanding duration. Within a
reasonable degree of medical certainty, it is unrelated etiologically to the
accident of 07/18/2006. Disc bulges of this nature are often seen in
association with disc degeneration of the type depicted on this examination
and , consequently, are most likely related to this process.
A review of the plaintiffs deposition transcript sets forth subjective complaints of pain which are
insufficient to establish a serious injury pursuant to the Insurance Law (see , Scheer v Koubek , 70 NY2d
678 , 518 NYS2d 788 , 512 NE2d 309).
The Court finds that the defendants have submitted evidence in admissible form to make a " prima
facie showing of entitlement to judgment as a matter of law" (Winegrad v. New York University Medical
Center , 64 NY2d 851 , 853; Pagano v. Kingsbury, supra at 694) and is sufficient to establish that the
plaintiff did not sustain a serious injury. Accordingly, the burden has shifted to the plaintiff to establish such
an injury and a triable issue of fact (see Gaddy v. Eyler, 79 NY2d 955, 582 NYS2d 990, 591 NE2d 1176;
Jean- Meku v. Berbec, 215 AD2d 440, 626 NYS2d 274, Second Dept., 1995; Horan v. Mirando, 221
AD2d 506, 633 NYS2d 402 , Second Dept., 1995).
In opposition to the defendants ' application the plaintiff submits , amongst other things , an affidavit
of the plaintiff an affidavit of Suzanne J. Howard , DC, a treating chiropractor of the plaintiff and
an
affirmation of Richard J. Rizzuti , MD , a radiologist who performed an MRI examination of the plaintiff'
cervical spine on December 12 , 2006.
Amongst other things , Dr. Howard states in the affidavit as to treatment of the plaintiff:
2. On July 20 , 2006 Maria Sabalis presented herself to my office for
treatment regarding a motor vehicle accident on July 18 , 2006. At the initial
visit she presented with complaints of severe neck pain radiating to left trap
with occasional left arm shooting pain , headaches and constant low back
pain. The patient also complained of left knee pain and left leg weakness
with intermittent numbness and tingling of her face and the middle finger on
her left hand. The patient also informed me that she was having difficulty
turning and moving her neck as well as she was experiencing spasms in her
neck and lower back. The patient further related that after the accident she
was taken to Mid Island Hospital where she was treated and released.
3. Examination of
the cervical spine revealed tenderness upon palpation of
C5- T1 spinous processes. Further ,
palpation of the cervical spine
musculature revealed cervical muscle spasm bilaterally left more than right.
The following tests were performed and the results were as follows:
Foraminal compression test was positive; Extension Compression test was
positive; Rotation- Extension
Compression test was
positive; Jackson
Compression test was positive; Maximum Cervical Compression test was
positive; and Shoulder Depression test was positive.
4. A cervical spine range of motion study was performed and the results were
as follows: flexion was limited to 40 degrees with the norm being 60 degrees
with pain; extension was limited to 10 degrees with the norm being 60
degrees with pain; left and right rotation were limited to 60 degrees with the
norm being 80 degrees with pain; and left and right lateral flexion were limited
to 20 degrees with the norm being 40 degrees with pain.
5. Examination of the thoracic spine revealed tenderness upon palpation of
T1-T2 and upon palpation there was tenderness and muscle spasm of the
paravertebral musculature on the left.
the lumbar spine revealed tenderness upon palpation of
L4- S2 spinous processes as well as bilateral lumbar muscle spasm. The
following tests were performed and the results were as follows: Bechterew
Sitting test was positive bilateral; Kemps test was positive bilaterally;
Milgram s test was positive; Laseque s test was positive bilaterally; Braggard'
test was positive bilaterally; Ely s test was positive bilaterally; and Yeoman
test was positive on the right.
6. Examination of
7. A lumbar spine range of motion study was performed and the results were
as follows: flexion was limited to 70 degrees with the norm being 90 degrees
with pain; extension was limited to 10 degrees with the norm being 30
degrees with pain; left and right rotation were limited to 20 degrees with the
norm being 30 degrees with pain; and left and right lateral flexion were limited
to 10 degrees with the norm being 20 degrees with pain.
8. My initial diagnosis of the patient was as follows: cervical subluxation
multiple levels; cervical radiculitis; cervical myfibrositis/myofascitis; cervical
hypolordosis; cervical hyperflexion/hyperextension;
cephalgia;
lumbar
subluxation; lumbar muscle spasm; and sacroiliac joint dysfunction.
9. Thereafter the patient was placed on a course of chiropractic therapy
consisting of chiropractic manipulations , ultrasound and electric muscle
stimulation at a rate of three times per week. The patient utilized the services
of my office on a regular basis from July 20 , 2008 (sic) through March 20,
2007 when she stopped treating as her no fault benefits had expired and she
had reached maximum improvement from chiropractic care as her condition
was permanent.
10. It was my expert chiropractic opinion that the results were as follows:
Sitting test was positive bilateral; Kemps test was positive
Bechterew
bilaterally; Milgram s test was positive; Lasegue s test was positive bilaterally;
Braggard' s test was positive bilaterally; Ely s test was positive bilaterally; and
Yeoman s test was positive on the right.
7. A lumbar spine range of motion study was performed and the results were
as follows: flexion was limited to 70 degrees with the norm being 90 degrees
with pain; extension was limited to 10 degrees with the norm being 30
degrees with pain; left and right rotation were limited to 20 degrees with the
norm being 30 degrees with pain; and left and right lateral flexion were limited
to 10 degrees with the norm being 20 degrees with pain.
8. My initial diagnosis of the patient was as follows: cervical subluxation
multiple levels; cervical radiculitis; cervical myofibrositis.lmyofascitis; cervical
hypolordosis; cervical hyperflexion/hyperextension; cephalgia; lumbar
subluxation; lumbar muscle spasm , and sacroiliac joint dysfunctioin.
10. It was my expert chiropractic opinion that the injuries sustained by the
plaintiff were causally related to the motor vehicle accident of July 18 , 2006
and that said injuries were consistent with the clinical presentation in my
office. It was my expert chiropractic opinion that the limitations in the ranges
of motion in the lumbar spine and cervical spine were permanent and
significant and would inhibit the patient's ability to carry out her normal
activities of daily living such as sitting, standing, bending, walking and lifting.
14. Ms. Babalis returned to my office for a re-evaluation on February 5 2008
and presented with the following complaints: neck pain , headaches and low
back pain. The patient further related that she has been unable to perform
normal daily living activities without pain.
15. Examination of the cervical spine revealed tenderness upon palpation of
C5- T1 spinous processes. Further ,
palpation of the cervical spine
musculature revealed cervical muscle spasm bilaterally left more than right.
The following tests were performed and the results were as follows:
Foraminal Compression test was positive; Extension Compression test was
positive; Rotation- Extension
Compression test was
positive; Jackson
Compression test was positive; Maximum Cervical Compression test was
positive; and Shoulder Depression test was positive.
16. A cervical spine range of motion study was performed and the results
were as follows: flexion was limited to 50 degrees with the norm being 60
degrees with pain; extension was limited to 30 degrees with the norm being
60 degrees with pain; left and right rotation were limited to 70 degrees with
the norm being 80 degrees; left lateral flexion was limited to 35 degrees with
the norm being 40 degrees; and right lateral flexion was limited to 30 degrees
with the norm being 40 degrees with pain.
17. Examination of the thoracic spine revealed tenderness upon palpation of
T1- T2 and upon palpation there was tenderness and muscle spasm of the
paravertebral musculature on the left.
18. Examination of the lumbar spine revealed tenderness upon palpation of
L40S1 spinous processes as well as bilateral lumbar muscle spasm. The
following tests were performed and the results were as follows: Milgram s test
was positive; Ely s test was positive on the right; and Yeoman s test was
positive on the right.
19. A lumbar spine range of motion study was performed and the results
were as follows: flexion was limited to 80 degrees with the norm being 90
degrees; and extension was limited to 20 degrees with the norm being 30
degrees with pain.
20. My current diagnosis of the patient is as follows: cervical subluxation
multiple levels; cervical radiculitis; cervical myofibrositis/myofascitis; cervical
hypolordosis; cervical hyperflexion/hyperextension; cephalgia; lumbar
subluxation; lumbar muscle spasm; sacroiliac joint dysfunction; and
subligamentous posterior disc herniations at C304 , C4- 5 and at C5impinging on the anterior aspect of the spinal canal.
21. It is my expert chiropractic opinion that the injuries as diagnosed are
causally related to the motor vehicle accident on July 18 , 2006. It is
expert chiropractic opinion that as the patient is stil exhibiting limitations of
motion in the lumbar and cervical spine said limitations and injuries can only
be considered permanent and significant at those limitations and the injuries
as diagnosed wil continue to inhibit the patient' s ability to carry out her normal
activities of daily living consistent with sitting, standing, bending, walking,
lifting, recreational activities and household duties. As such , it is my expert
chiropractic opinion that the injuries as diagnosed are permanent in nature.
Dr. Rizzute sets forth in said physician
s affirmation as to the December 12 , 2006 MIR of the
plaintiffs cervical spine:
2. On December 12 , 2006 Ms. Maria Elena Babalis presented herself at my
office for an MRI examination of the cervical spine.
3. The examination demonstrates subligametnouos posterior disc herniations
at C4- 3, C4- 5 and at C5- 6 which impinge on the anterior aspect of the spinal
canal. The remaining discs are unremarkable. No abnormality is
demonstrated in the lower spinal cord. There is no abnormality of alignment.
No acute bony abnormality is demonstrated. There is no evidence of spinal
stenosis.
4. My impression of the cervical spine was subligamentous posterior disc
herniations at C3- , C4- 5 and at C5- 6 impinging on the anterior aspect of the
spinal canal.
."..
.............
5. It is my expert medical opinion that the disc pathology is trauma related
and did not pre-exist the accident of July 18, 2006.
Based upon the foregoing, there is an issue of fact as to whether the plaintiff suffered a serious injury
pursuant to 95102 of the Insurance Law in the accident in issue of July 18 , 2006. As such. the defendants
application for an Order pursuant to Rule 3212 of the CPLR granting summary judgment in favor of the
defendants, dismissing the plaintiffs complaint on the ground that there are no question of fact herein , the
plaintiffs cause of action is without merit , and that the defendant is entitled to summary judgment as a
matter of law , is denied.
SO ORDERED.
DATED:
t,fi
4.6.
jSC."
ENTERED
JUN 2 0 2008
6-. .'iAMAU COUNTY
-vNr
10-
ClEfK' S OFFiCe