SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
Present:
HON. DANIEL PALMIERI
Acting Justice Supreme Court
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GARRY R. JULES and FRANTZI JULES,
TRIAL TERM
PART 48
INDEX NO.: 020706/05
Plaintiff,
-against-
MOTION DATE:11-21-07
SUBMIT DATE: 1-25-08
SEQ. NUMBER - 002
MARIA CALDERON,
Defendant
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The following papers have been read on this motion:
Notice of Motion, dated 10-19-07............................................1
Affirmation in Opposition, dated 1-16-08..............................2
Reply Affirmation, dated 1-22-08...........................................3
The defendant’s motion for summary judgment pursuant to CPLR §3212 seeking, as
to plaintiff Garry R. Jules only, dismissal of plaintiff’s complaint on the basis that plaintiff
has failed to sustain a “serious injury” within the purview of the Insurance Law §5102(d) is
granted and the action of Garry R. Jules is dismissed.
The underlying action results from an automobile accident which occurred on May 20,
2004, whereby the vehicle that plaintiff was operating was in an accident with a vehicle own
and operated by the defendant. Plaintiff had previously been involved in an automobile
accident in November 2003 and in a subsequent accident in October 2005. Plaintiff alleges
that as a consequence of the instant accident he has sustained a “serious injury” within the
ambit of Insurance Law §5102(d).
Serious injury” is defined by § 5102(d) of the New York Insurance Law as
follows:
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 sue 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 persons’ usual
and customary daily activities for not less than ninety days during one
hundred and eighty days immediately following the occurrence of the
injury or impairment. (Ins. Law § 5102(d)).
On a motion for summary judgment, the movant must establish his or her cause of
action or defense sufficient to warrant a court directing judgment in its favor as a matter of
law (Junco v. Ranzi, 288 AD2d 440 (2d Dept. 2001 ) Frank Corp. v. Federal Ins. Co., 70
NY2d 966 (1988); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986), Rebecchi v. Whitmore,
172 AD2d 600, (2nd Dept. 1991). “The party opposing the motion, on the other hand, must
produce evidentiary proof in admissible form sufficient to require a trial of material questions
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of fact” Frank Corp. v. Federal Ins. Co., supra at 967; GTF Mktg. V. Colonial Aluminum
Sales, 66 NY2d 965 (1985), Rebecchi v. Whitmore, supra at 601.
Further, to grant summary judgment, it must clearly appear that no material triable
issue of fact is presented. The burden on the Court deciding this type of motion is not to
resolve issues of fact or determine matters of credibility but merely to determine whether
such issues exist see Daliendo v. Johnson, 147 AD2d 312, 317 (2nd Dept. 1989); Barr v.
County of Albany, 50 NY2d 247 (1980).
The submission by defendant establishes entitlement to judgment thus shifting the
burden to the opponent plaintiff to rebut the movants’ case by submitting proof in
evidentiary form showing the existence of triable issues of fact. Zuckerman v. City of New
York, 49 NY2d 557 (1980); Friends of Animals v. Associated Fur Manufacturers, Inc., 46
NY2d 1065 (1979).
In addressing the issue as to the existence of a “serious injury” the court initially looks
to the pleadings. In the Bill of Particulars (as supplemented) plaintiff alleges having
sustained herniated discs, left knee injury, radiculopothy, spinal sprains/strains and resulting
sequelae.
The instant application interposed by the defendant seeking dismissal of the plaintiff’s
complaint is supported by the affirmed medical report of Dr. Israel, an orthopedic surgeon.
Dr. Israel examined the plaintiff on March 30, 2007 at which time he conducted a physical
examination, of the plaintiff, conducted specified tests, reported quantified results and
compared such results to normal conditions. In addition to his examination, Dr. Israel also
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reviewed numerous medical reports including reports pertaining to Magnetic Resonance
Imaging studies {hereinafter MRI} done with respect to the plaintiff’s knees and spine.
Subsequent to his review, inter alia, of the aforementioned examination of the plaintiff, the
doctor concluded that plaintiff sustained resolved
spinal sprains and had a healed
arthroscopy of the left knee.
Dr. Robinson, a neurologist conducted an examination of plaintiff. He too reviewed
plaintiff’s medical records and conducted identified neurological tests after which he
concluded that the examination was normal.
Defendant has also submitted an affirmed report from Dr. Tantleff, a radiologist who
examined plaintiff’s cervical and left knee MRIs, both taken shortly after the accident. He
concludes that the cervical MRI reveals chronic degenerative disc disease and as to the left
knee, finds no gross or definable abnormality and no evidence of menisci tear.
Upon motion by a defendant for summary judgment seeking to dismiss a serious
injury complaint, defendant carries the burden of establishing that the plaintiff did not suffer
a “serious injury” as enumerated in Article 51 of the Insurance Law §5102(d). Gaddy v.
Eyler, 79 N.Y.2d 955 (1992). Upon such a showing, it becomes incumbent upon the
nonmoving party to come forth with sufficient admissible evidence to raise an issue of fact as
to the existence of a “serious injury”. Licari v. Elliott, 57 N.Y.2d 230 (1982).
The question before the court is whether the medical evidence proffered by the
defendant is sufficient to meet the burden. Specifically, the court needs to inquire whether the
conclusions adequately attribute causality of the disc bulges and/or herniations to something
other than the subject automobile accident or that such conditions are not “serious injuries”.
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Chaplin v. Taylor, 273 A.D.2d 188 (2d Dept. 2000); Gray v. Lasurdo, 302 A.D.2d 560 (2d
Dept. 2003). The same analysis applies to plaintiff’s claim of torn left knee menisci.
Defendant has satisfied its burden of demonstrating that plaintiff has not suffered a
“serious injury” Giraldo v. Mandanici, 24 AD3d 419 (2d Dept. 2005); Houston v. Gajdos, 11
AD3d 514 (2d Dept. 2004); Matthews v. Cupie Transportations Corp., 302 AD2d 566 (2d
Dept. 2003).
Thus, the burden now shifts to the plaintiff to rebut the movant’s case by the
submission of admissible proof which is demonstrative of a “serious injury”. (Gaddy, supra.)
As specifically enumerated in the Bill of Particulars, the plaintiff claims to have
sustained “serious injury” as defined in NYS Insurance Law §5102(d) of a significant
limitation of use and a permanent consequential limitation of use of an unspecified body
organ or member and/or body function or system together with a claim under the 90/180 day
subset. Although plaintiff’s Bill of particulars is dated after the subsequent accident, plaintiff
does not distinguish injuries as to each of plaintiff’s three accidents and does not claim
aggravation of any previously existing condition thus attributing all of his injuries to this
accident. Moreover, the evidence of plaintiff’s medical experts does not address the prior or
subsequent accidents or distinguish the injuries as to each.
In opposition to the defendant’s instant application and in support of plaintiff claims,
the plaintiff submits his own affidavit, affirmations of orthopedist, Dr. Lubliner, dated after
the date of this motion, an affirmation of Dr. Lanzone, an orthopedic surgeon, who
performed surgery on plaintiff’s left knee and an affirmation of Dr. Shapiro, a radiologist
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who reports on plaintiff’s cervical spine MRI.
Dr. Shapiro states that he did an MRI of
plaintiff’s left knee, however, his report is not attached to his affirmation and does not appear
in plaintiff’s opposition papers. The radiologist reports a C5-6 cervical disc herniation
without attributing cause. Finally, Dr. Dantes submits an affirmation relating to treatment
which he rendered following the accident and which purports to incorporate by reference all
of his treatment records. However, the report and treatment records which are annexed are
those of the co-plaintiff Frantzi Jules not those of Garry R. Jules, who is the subject of this
motion. Thus, the affirmation of Dr. Dantes is of limited probative value since it does not
chronicle the tests performed or address plaintiff’s left knee. See Toure v. Avis Rent a Car
Sys. Inc. 98 NY2d 345 (2002). As above noted none of plaintiff’s doctors address injuries, if
any, sustained in the prior or subsequent accidents.
Dr. Lubliner who examined plaintiff three and one-half years after the accident and
also after the 2005 accident, finds limited range of motion and weakness of the left knee. His
opinions are based entirely on his one examination and the medical records of others, not all
of which have been submitted. While reliance on the cervical MRI report is appropriate, to
the extent that Dr. Lubliner relies on the missing knee MRI report or the unsworn evidence
of other doctors, his findings are not admissible Codrington v. Ahmad, 40 AD3d 799 (2d
Dept. 2007); Vishnevsky v. Glassberg, 29 AD3d 680 (2d Dept. 2006).
The findings of Dr. Lubliner are insufficient to establish a triable issue of fact not only
because the examination took place more than three years after the accident but there is no
competent evidence which establishes plaintiff’s condition contemporaneously with the
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accident. Bestman v. Seymour, 41 AD3d 629 (2d Dept. 2007). This examination does not
create an issue of fact as to the seriousness of plaintiff’s injuries. Guzman v. New York City
Transit Authority, 15 AD3d 541 (2d Dept. 2005); Ubri v. Monserrate, 1 AD3d 429 (2d Dept.
2003).
Dr. Lanzone performed surgery on plaintiff’s left knee four months after the accident
and reports meniscus tears which he attributes to the accident. Dr. Lanzone refers to an MRI
as showing “tearing” but does not identify the MRI in any other way. His operative report
and/or affirmation are of minimal probative value since the doctor fails to describe tests
performed, fails to attribute injuries to the accident with any degree of medical certainty and
is entirely conclusory. Chen v. Marc, 10 AD3d 295 (1st Dept. 2004).
Medical proof which indicates limitations in the lumbar or cervical spine is sometimes
sufficient to raise a triable issue of fact. See, e.g., Rosario v Universal Truck & Trailer
Service, Inc., 7 AD3d 306 (1st Dept. 2004). However, certain factors may override a
plaintiff’s objective medical proof of limitations and allow dismissal of the complaint.
Pommells v Perez, 4 NY3d 566 (2005). Specifically, the Court held in Pommells that
additional contributing factors, such as a gap in treatment, an intervening medical problem,
or a pre-existing condition which would interrupt the chain of causation between the claimed
accident and the claimed injury would render plaintiff’s case subject to dismissal. Id at 566,
citing Franchini v Palmieri, 1 NY3d 536 (2003); affirming 307 AD2d 1056 (3rd Dept. 2003)
see also Mohamed v Siffrain, 19 AD3d 56 (2nd Dept. 2005).
When assessing the medical
evidence offered by a plaintiff on threshold motions, the court must determine that the
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evidence is objective in nature and that a plaintiff’s subjective claims as to pain or limitation
of motion are sustained by objective medical findings. Grossman v. Wright, 268 A.D.2d 79
(2d Dept. 2000). Further, these objective medical findings must be based upon a recent
examination of the plaintiff wherein the expert must provide an opinion as to the significance
of the injury. Grossman, supra; Constantinou v. Surinder, 8 AD3d 323 (2d Dept. 2004).
While a herniated or bulging disc may constitute a “serious injury” within the ambit of
the Insurance Law §5102(d), a plaintiff is required to provide objective evidence of the
extent or degree of the alleged physical limitation resulting from the disc injury and its
duration. Diaz v. Turner, 306 A.D.2d 241(2d Dept. 2003). “The existence of a herniated or
bulging disc is not evidence of serious injury in the absence of objective medical evidence of
the extent of the alleged physical limitations resulting from the disc injury and its duration.”
Albano v Onolfo, 36 AD3d 728 (2d Dept. 2007); Yakubov v CG Trans Corp., 30 AD3d 509
(2d Dept. 2006); Kearse v New York City Tr. Auth., 16 AD3d 45 (2d Dept. 2005). Despite
the existence of MRIs indicating a disc herniation, plaintiff has failed to rebut defendant’s
prima facie showing that plaintiff did not sustain a serious injury under Insurance Law §
5102(d) because there is no objective demonstration of a significant impairment related
thereto. Kearse v NYCTA, supra.
It has been held that a torn meniscus may constitute a serious injury when a plaintiff is
prevented thereby from engaging in previously enjoyed activities. Pollas v. Jackson, 2 AD3d
700 (2d Dept. 2003); D’Amato v. Stomboli, 264 AD2d 800 (2d Dept. 1999). However, to
establish a question of fact, there must be evidence that the tear was caused by this accident
and objective medical proof showing a significant impairment of a body function caused by
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such an injury, Chan v. Casiano, 36 AD3d 580 (2d Dept. 2007). There must be more than
evidence of a torn meniscus and surgery to establish a question of fact as to whether such a
condition may constitute a serious injury.
While Dr. Lubliner purports to find a number of range of motion restrictions at the
time of his recent examination in August 2007, as noted above, this documentation of range
of motion restrictions is more then three years after the accident. Plaintiff has not presented
sufficient medical proof that these restrictions were contemporaneous with the accident, by
showing significant range of motion restrictions in the same areas of the body now claimed.
Rodriguez v Cesar, 40 AD3d 731 (2d Dept. 2007); Bell v Rameau, 29 AD3d 839 (2d Dept.
2006); Li v Yun, 27 AD3d 173 (2d Dept. 2006); Suk Ching Yeung v Rojas, 18 AD3d 863 (2d
Dept. 2005). Relatedly, there is an undisputed gap in treatment from the time of the accident
until the preparation of the medical report of Dr. Lubliner, constituting an additional reason
for dismissal. Pommells v Perez, supra; Albano v Onolfo, supra.
Plaintiff has failed to submit competent medical evidence that he was unable to
perform substantially all daily activities for not less than 90 days of the first 180 days
subsequent to the subject accident. Albano v Onolfo, supra; Duran v Sequino, 17 AD3d 626
(2nd Dept. 2005); Sainte-Aime v Ho, 274 AD2d 569 (2nd Dept. 2000).
With respect to this category, a plaintiff is required to submit medical proof which
demonstrates the existence of an injury/impairment and that such injury or impairment has
prevented the plaintiff from performing substantially all of his daily customary activities.
Licari v. Elliott, 57 N.Y.2d 230 (1982). The medical evidence and activities of plaintiff
following the accident do not support a claim under this category. Boyle v. Gundogan, 19
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AD3d 351 (2d Dept. 2005).
The defendants’ submissions have demonstrated that the plaintiff – who neither
missed more than a short time from work nor was not confined to his home, for any
significant period of time Shamsoodeen v. Kibong, 41AD3d 557 (2d Dept. 2007); Bucci v.
Kempinski, 273 AD2d 333 (2d Dept. 2000); Letellier v. Walker, 222 AD2d 658 (2d Dept.
1995) was not prevented from performing “substantially all of the material acts which
constituted his 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.”
See, Sainte-Aime v. Ho, 274 AD2d 569 (2d Dept. 2000); see also, Bartley v. Trans Car &
Limo, Inc., 41 AD3d 624 (2d Dept. 2007); Zinger v. Zylberberg, 35 AD3d 851(2d Dept.
2006); Snyder v. Perez, 246 AD2d 526, 527 (2d Dept. 1998).
The plaintiff’s opposing submissions thus fail to raise a triable issue of fact with
respect to the foregoing category of recovery. See, Aponte v. Tusa, 28 AD3d 407, 408 (2d
Dept. 2006).
As to the statutory categories of permanent consequential limitation of use of a body
organ or member and a significant limitation of use of a body function or system, the Court
of Appeals has held that whether a particular limitation is consequential or significant is a
question of medical significance and involves a determination as to the degree or nature of
the injury based upon the normal function, purpose and use of the particular body part. Toure
v. Avis Rent a Car Systems Inc., supra. Here there is insufficient contemporaneous medical
evidence of a numeric percentage loss to the plaintiff’s loss of range of motion regarding his
cervical and lumbar spines or his knee or a qualitative impairment and thus plaintiff has
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failed to raise triable issue of facts which would preclude summary judgment. (Toure,
supra.)
Garner v. Tong, 27 AD3d 401 (1st Dept. 2006); Nelms v. Khokhar, 12 AD3d 426
(2d Dept. 2004); Mazo v. Wolfosky, 9 AD3d 452 (2d Dept. 2004).
This shall constitute the Decision and Order of this Court.
ENTER
DATED: February 13, 2008
_____________________________
HON. DANIEL PALMIERI
Acting Supreme Court Justice
TO:
Harmon & Linder, Esqs.
Attorneys for Plaintiff
42 Broadway, Ste. 1227
New York, NY 10004
Richard T. Lau & Associates
By: Joseph G. Gallo, Esq.
Attorneys for Defendant
Maria Calderon
P.O. Box 9040
Jericho, New York 11753
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