SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
Present:
HON. ALLAN L. WINICK,
Justice
TRIAUIAS, PART 7
NASSAU COUNTY
JOANNE AURICCHIO,
Plaintiff,
MOTION DATE: February 8,2002
MOTION SEQUENCE: 001
INDEX NO. 6831/00
-againstMETROPOLITAN SUBURBAN BUS AUTHORITY
d/b/a “MTA LONG ISLAND BUS”,
Defendant(s).
The following papers read on this motion:
Notice of Motion/ Order to Show Cause
Answering Affidavits
Replying Affidavits
Briefs: Plaintiffs/Petitioner ’s
Defendant’s/Respondent’s
Defendants’motion to dismiss the complaint pursuant to CPLR 5 3211 and CPLR
5 3212 as a result of plaintiff ’s failure to sustain a serious injury as required by Insurance
Law § 5102(d) is denied.
Plaintiff, a then 63 year old woman passenger, was involved in a bus accident on
May 27, 1999. At the time of the accident, plaintiff worked as a secretary for 11 years.
Allegedly, plaintiff was unable to return to work as a result of the accident. Plaintiff claims
to have suffered the following injuries as detailed in her bill of particulars: traumatically
induced basilar tip aneurism; herniated disc at C4-5 contacting the ventral margin of the
cervical cord (confirmed by MRI) and severe cervical sprain.
As plaintiff was attempting to exit the bus, she was allegedly “propelled” out of the
open front door due to the bus driver ’s sudden stop when the light changed to red. She lost
her grip on the pole and lost her balance. She allegedly fell into a van that was parked on
the sidewalk. She did not fall to the ground after making contact. The bus driver left the
scene of the accident. She walked to a bank which was three stores away and her original
destination. A police officer at the bank called an ambulance and plaintiff was taken to
Franklin General Hospital. The hospital records indicate that the plaintiff complained of
pain in her head and over her left eye. It was noted that she sustained a large hematoma
over her left eye. X-rays taken at the hospital indicated that plaintiff had degenerative
changes of the cervical spine and straight cervical spine which may have been due to a
muscle spasm.
Narrowing of the C4-5 and C5-6 disc was present and osteophyte
formation was also present anteriorly and posteriorly. She was discharged with a cervical
collar.
On June 3, 1999 plaintiff began treatment with Dr. Shapiro, her family doctor.
Plaintiff presented with hematomas of the left eye infra and superior and of the right eye
infraorbital. Plaintiff had limitation of the cervical spine on flexion, extension, side bending
and rotation. Physical exam revealed spasm of the trapezius muscles bilaterally and
tenderness in the occipital region of the head. Plaintiff was advised to undergo an MRI to
rule out infarction or fraction, to see a neurologist to rule out underlying neurological
problems and to start physical therapy.
On June 4,1999, plaintiff presented to her chiropractor, Dr. Couluris with complaints
of acute headache, occipital pain and pain in her neck radiating to her shoulders bilaterally.
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Plaintiff was referred to Dr. Couluris by Dr. Musnick, another chiropractor who had been
treating plaintiff for a disc herniation that she sustained in her lumbar spine 8 or 9 years
prior to this incident.
Plaintiff underwent a CT Scan of the brain on June 10, 1999, which demonstrated
a lesion that was questionably an aneurism. On June 22, 1999, plaintiff presented to Dr.
Shapiro with complaints of
headaches and pressure in eyes and head. Plaintiff was
referred to a neurologist Dr. Rosenthal and on July 7, 1999 plaintiff underwent an MRI
which revealed a basilar tip aneurysm. An MRA performed on July 8, 1999 confirmed the
presence of an 8mm basilar tip aneurysm. It was decided that a “wait and see”approach
would be the treatment plan for the aneurysm. Plaintiff continued to go to her chiropractor
office twice a week for approximately a year and a half. During plaintiff
’s
’s treatment with
her chiropractor, Dr. Couluris, the chiropractor’s practice was taken over by Dr. Koch.
In support of their application, defendants submit an affidavit from Dr. Frank Hudak,
an orthopedic surgeon dated October 15, 2001 and Dr. Erik J.
Entin, a neurologist and
psychiatrist dated October 15, 2001.
Dr. Hudak states that based on his exam of plaintiff ’s cervical spine performed on
August 16, 2001, plaintiff had good range of motion of the head and neck, with flexion of
45”, extension to 45”, right and left rotation to 60” and right and left tilt to 45”with no pain
noted. His diagnosis was that plaintiff suffered from no objective findings to confirm any
disability or permanency regarding the accident of May 27, 1999. He found a history of
degenerative disc disease at the C4-5 and C5-6 levels of her cervical spine which were
unrelated to the accident.
Dr. Entin states that based on his exam, performed on August 23,2001, that plaintiff
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suffered from a 10” decrease in range of motion on lateral rotation, flexion and extension
which was caused as a result of the degenerative change of plaintiff ’s cervical spine and
not related to the accident. Dr. Entin was also of the opinion that the aneurism was not
traumatically induced and that plaintiff may have suffered superficial head trauma and a
cervical sprain, but that both have fully resolved.
Once the defendants establish that plaintiff did not sustain serious injury within the
no-fault law, the burden shifts to plaintiff to set forth competent medical evidence based
upon objective findings and diagnostic tests to raise genuine triable issues of fact.
(Zuckerman v City of New York, 49 NY2d 557’1980; Grossman v Wright, 268 Ad2d 79, 2”d
Dept. 2000; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1979).
In opposition to this motion, plaintiff submitted her affidavit stating that Dr. Rosenthai
has elected not to operate on the aneurysm, that as a result of the accident she is in severe
pain and unable to return to work or resume her daily activities since the date of the
accident.
Plaintiff also submitted-an affidavit from her treating chiropractor, Dr. Christine Koch
who took over Dr. Couluris’practice on May 1, 2001. According to Dr. Koch, the objective
tests performed by Dr. Coulouris on plaintiff on initial exam were markedly positive. The
tests included a Cervical Compression test, positive on both the left and right side, a
Gaenselen’s test, positive on both the left and right side and a Valsalva ’s test positive on
According to Dr. Koch ’s review of the medical record
both the left and right side.
maintained in her office,
Dr. Couluris performed a range of motion test using a Digital Inclinometer which revealed
quantifiable cervical restriction. The Soto-Hall test was also performed which revealed
.
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positive spinal abnormalities.
A Shoulder Depression test was also performed which
revealed adhesions to the soft tissue adjacent to the cervical spine nerve roots.
Dr. Koch ’s affidavit indicates that she also performed objective range of motion
testing on plaintiff on December 3, 2001 which revealed that plaintiff sustained quantifiable
cervical restrictions, specifically, a 16% flexion restriction, a 20% extension restriction, a
25% left rotation restriction, a 12% right rotation restriction, a 44% left lateral rotation
restriction and a 22% right lateral rotation restriction. Dr. Koch also performed a Shoulder
Depression test, an objective test which was positive bilaterally, the
Soto Hall test, an
objective test, which was positive indicating the presence of vertebral trauma and the
Foraminal Compression test which was positive indicating the presence of nerve root
irritation.
Plaintiff also submitted an affirmation from Dr. Karl Hussman, a radiologist, stating
that plaintiff underwent an MRI Scan of the cervical spine on December 30, 1999 which
revealed C4-5 herniation with superimposed spondylotic ridge contacts the ventral margin
of the cord and reversal of normal curvature.
According to Dr. Koch, plaintiff suffered, among other things, from cervical
intervertebral disc disorder with myelopathy, subluxation of the cervical spine, subluxation
of the thoracic spine and C4-5 disc herniation (confirmed by MRI), as a direct result of the
accident of May 27, 1999 and caused her to be permanently
disabled from her
employment.
Plaintiff’s medical evidence was sufficient to raise triable issues of fact as to whether
she sustained a serious injury. Plaintiff submitted an affidavit from her chiropractor which
was supported by specific objective quantifiable findings regarding the existence and extent
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of plaintiff ’s cervical range of motion limitations based on both initial and recent examination
(Moreno v Delcid,262 AD2d 464, 2nd Dept., 1999; Garwol v Bruch, 726 AD2d 509, 4th Dept.,
2001 ; Garcia v Arrinqton, 282 AD2d 268, 1”Dept. 2001; Pasatto v Haiker, 251 AD2d 478,
2nd Dept., 1998; Gonzalez v Niddrie, 251 AD2d 450, 2nd Dept., 1998).
The affidavit of Dr. Koch which refers to testing performed by Dr. Couluris is in
evidentiary form.
Dr. Koch took over Dr. Couluris
reference to Dr. Couluris
’ practice. Dr. Koch not only made
’ testing, but also performed her own independent objective
testing. In addition, Dr. Koch made reference to the offices treatment records which
consisted of day to day business entry of the treating doctor during plaintiff
’s office visits
(Komar v Showers, 227 Ad2d 135, 1”Dept., 1996).
Furthermore, plaintiff has raised triable issues of fact as to whether the movement
of the bus was different than the jerks and jolts commonly experienced in city bus travel,
and therefore, attributable to the negligence of defendant (Jenkins v Westchester Countv,
278 AD2d 370, 2nd Dept., 2000; Urquhart v New York City Transit Authoritv, 85 NY2d 828,
1995).
For all the foregoing reasons, the motion is denied.
This constitutes the order of the court.
Dated: March 12, 2002
Allan L. Winick J.S.C.
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MAR 21 2002