Opinion
Index No. 521978/2020
05-02-2023
Yvonne Bishop and TYSHON BISHOP, Plaintiffs, v. Jeffrey Estevez and JOSE ESTEVEZ, Defendants.
Harmon, Linder & Rogowsky, New York City (Brett I. Myerson of counsel), for plaintiffs. Scahill Law Group P.C., Bethpage (Gerard Ferrara of counsel), for defendants.
Unpublished Opinion
Harmon, Linder & Rogowsky, New York City (Brett I. Myerson of counsel), for plaintiffs.
Scahill Law Group P.C., Bethpage (Gerard Ferrara of counsel), for defendants.
AARON D. MASLOW, Justice of the Supreme Court.
The following numbered papers were read on this motion:
NYSCEF Document Nos. 44-54 (notice of motion, affirmation in support, exhibits, statement of material facts, and affidavit of service
NYSCEF Document Nos. 56-61 (affirmation in opposition and exhibits)
NYSCEF Document Nos. 62-63 (reply affirmation and affidavit of service)
Introduction
Plaintiffs Yvonne Bishop ("YB" hereinafter) and Tyshon Bishop ("TB" hereinafter") assert in this action that they sustained personal injuries while occupying a vehicle driven by YB on April 17, 2020, as a result of the negligent operation of another vehicle driven by Defendant Jeffrey Estevez and owned by Defendant Jose Estevez.
The complaint was amended in NYSCEF Doc No. 37 to reflect Jose Estevez as a Defendant (owner of the vehicle) in place of Anibal Santana.
Said Defendants now move for summary judgment, claiming that both Plaintiffs failed to meet the "serious injury" threshold of Insurance Law § 5104 (a), as defined in § 5102 (d). There are nine categories of serious injury, per Insurance Law § 5102 (d).
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]; Andre v Pomeroy, 35 N.Y.2d 361 [1974]).
The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari v Elliott, 57 N.Y.2d 230 [1982]). The moving Defendants bear the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that Plaintiffs have not suffered a serious injury from the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955 [1992]. A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 [2016]).
If Defendants have made such a showing that Plaintiffs have not suffered a serious injury from the subject motor vehicle accident as a matter of law, i.e., Plaintiffs failed to establish that they qualified under the relevant serious injury threshold categories, the burden shifts to Plaintiffs to submit evidence in admissible form, rebutting the presumption that there are no material issues of fact (see Franchini v. Palmieri, 1 N.Y.3d 536 [2003]; Grasso v Angerami, 79 N.Y.2d 813 [1991]).
Bill of Particulars
In Plaintiffs' bill of particulars, YB (57 years old when the accident occurred) claimed injuries to the right shoulder (including arthroscopic surgery), left shoulder, cervical spine (including disc herniations), thoracic spine (including a disc herniation), and lumbar spine (including disc herniations). She asserted that she was confined to bed/home for a period of approximately two weeks except for necessary and essential excursions for required purposes, and that she was totally disabled for a period of approximately three weeks and partially disabled since the accident date. As for serious injury threshold categories, YB claimed, "permanent injury, a disabling injury for a period in excess of 90 out of the first 180 days following this occurrence,... a significant limitation of use of a bodily function or system;... a significant disfigurement;... [and] a permanent consequential limitation of use of a bodily organ and/or member..." (NYSCEF Doc No. 49, bill of particulars ¶¶ 9, 11, 15).
In the same bill of particulars, TB (28 years old when the accident occurred) claimed injuries to the right shoulder (including arthroscopic surgery), right shoulder, bilateral knees, cervical spine (including disc herniation), and lumbar spine (including disc herniations). He asserted that he was confined to bed/home for a period of approximately two weeks except for necessary and essential excursions for required purposes, and that he was totally disabled for a period of approximately three weeks and partially disabled since the accident date. As for serious injury threshold categories, TB claimed, "permanent injury, a disabling injury for a period in excess of 90 out of the first 180 days following this occurrence,... a significant limitation of use of a bodily function or system;... a significant disfigurement;... [and] a permanent consequential limitation of use of a bodily organ and/or member..." (id.).
Defendants' Evidence
In its motion for summary judgment, Defendants relied on affirmed independent medical examination ("IME") reports prepared by Dr. Douglas B. Unis, M.D., a Board-certified orthopedic surgeon, on August 2, 2021, detailing his examinations of Plaintiffs, findings, and conclusions; Defendants also relied on the certified transcripts of the examinations before trial ("EBTs") of Defendants it conducted on July 7, 2021.
A. Plaintiff YB
(1) Dr. Douglas B. Unis's Exam Report (NYSCEF Doc No. 51)
Dr. Unis noted that YB was the restrained driver of a vehicle traveling on Bushwick Avenue when she was rear-ended at a stop light. She reported no loss of consciousness or airbag deployment. She was taken to Woodhull Hospital following the accident and saw an orthopedist for neck, low back, and bilateral shoulder pain. Treatment consisted of physical therapy, acupuncture, and right shoulder arthroscopy. At the IME, YB complained of mild right shoulder pain and neck and low back pain. She had no other complaints at the time of the examination. Dr. Unis listed the numerous post-accident treatment records which he reviewed. He summarized them in chronological order. He noted that MRIs revealed disc herniations. On July 24, 2020, Dr. Andrew Miller performed right shoulder arthroscopic surgery which included repair of a SLAP lesion, subacromial decompression and debridement, a synovectomy of the subacromial space, and a partial acromioplasty.
YB walked in and out of the exam room with a non-antalgic gait and without assistive devices. She was able to get on and off the elevated exam table with both arms hyperextended with no pain or difficulty. Dr. Unis compared YB's observed ranges of motion to what is considered to be normal and found full range of motion throughout all planes of her cervical spine, right shoulder, left shoulder, bilateral elbows, bilateral hands and wrists, right knee, left knee, and bilateral feet and ankles; there was normal range of motion in the thoracolumbar spine, right hip, and left hip. Range of motion testing was performed using a goniometer and the standards were based on the AMA Guides to Evaluation of Permanent Impairment, 6th Edition.
Dr. Unis also conducted the following extensive panoply of provocative orthopedic tests, which yielded negative results: Tenderness Paraspinals Test, Tenderness Trapezii Test, Spurling's Test, Clonus Test, Babinski Sign Test, Sternal Compression Test, Straight Leg Raise Test, Heel-Toe Walk Test, Hawkins Sign Test, Impingement Sign Test, Speed's Test, Yergason's Test, O'Brien's Test, Tinel's Sign Test, Phalen's Sign Test, Ober's Test, Stinchfield Test, FADIR Test, Trendelenberg Test, Thomas Test, McMurray Test, Lachman Test, Pivot Shift Test, Valgus Stress Test, and Varus Stress Test. Dr. Unis also found that YB scored five out of possible five (5/5) in neurological muscle strength testing in all upper and lower extremities; had 5/5 serial grip strength; had no radiculopathy or internal derangement; had no tenderness, no spasm, no atrophy, no warmth, no swelling, no effusion, and no crepitus; and had normal deep tendon reflexes, normal patellar and Achilles' reflexes, and normal sensory reception.
Dr. Unis diagnosed resolved cervical and lumbar spine sprain superimposed on pre-existing degenerative changes, as well as resolved bilateral shoulder contusion/status post right shoulder arthroscopic surgery. Notably, he added:
According to the provided medical records, the claimant was involved in a motor vehicle accident and sought treatment for neck, low back and bilateral shoulder pain. The right shoulder MRI did not show a labral tear or any other acute pathology. The partial tear of the rotator cuff is chronic and not consistent with the mechanism of injury. The clavicle bone bruise seen on MRI is consistent with a seatbelt injury and would heal uneventfully. The operative report of the right shoulder scope indicates a SLAP tear that was repaired. The MRI did not show this pathology and if it had, it would not be consistent with this type of seatbelt injury. Arthroscopy was not indicated. My review of color intra-operative photos confirm the MRI findings.
Today's examination was normal. There was no objective evidence of cervical or lumbar radiculopathy or internal derangement of the shoulders. It should be noted that the MRI report findings of the spine revealed evidence of pre-existing degenerative changes. Furthermore, the claimant had no complaints of cervical spine pain at today's examination.
In my medical opinion, the claimant is not disabled. She is able to work and perform her usual and customary activities of daily living without orthopedic limitations. There is no objective evidence of a causally related permanency or disability. The clamant is capable of working and performing all her activities of daily living without restrictions or limitations.
(2) Examination Before Trial
Defendants' counsel, in his affirmation (NYSCEF Doc No. 46, Gerard Ferrara aff ¶ 7), emphasized the following testimony given by YB at her deposition, the transcript of which was submitted as NYSCEF Doc No. 50:
On April 17, 2020, she was operating her 2017 Ford SUV, when she was involved in the subject accident (pp. 11). Her son, TYSHON, and her 10 year old granddaughter were passengers in her vehicle (p. 12). Her vehicle was equipped with airbags; no airbags were caused to deploy (pp. 23-24). She did not lose consciousness, was not cut or bleeding, did not sustain any redness or bruising, and no clothes were torn (p. 23). Responding EMTs took her vitals and provided a cold pack; EMTs provided no further treatment (pp. 34-35). Her husband came to the scene and brought her to Woodhull Hospital, where she was treated and released (pp. 35-36).
The next time she sought medical attention was one (1) week later at Rockaway Medical (p. 37). She treated at Rockaway Medical for approximately five (5) months of physical therapy and chiropractor treatment (p. 60). She also saw Dr. Miller at Rockaway Medical, who performed Right Shoulder arthroscopy on July 24, 2020 (pp. 62-63). No other surgery was discussed [or] recommended (pp. 63-64, 72). Before surgery, Dr. Miller told her the surgery would provide a complete recovery; after surgery, Dr. Miller told her the surgery went well (p. 65). She last saw Dr. Miller in September 2020; she did not have any treatment for this accident in 2021 (p. 69). She did not treat with any other medical providers (p. 70). When asked why she ceased treatment in 2020, she replied: "Because I was feeling a little better than before" (p. 72).
She conceded she was last employed in 2015, as a Home Health Aide; she stopped working in 2015 due to back pain (p. 79). She applied and was approved for Social Security Disability since 2015, due to her prior back pain (pp. 79-80). She still collects Social Security Disability for her prior back injuries (pp. 80-81). Approximately one (1) month prior to her deposition, after an approximate eight (8) month gap in treatment following this accident, she went to Dr. Sanders who provided her an injection for her back (pp. 74-76). She saw Dr. Sanders three (3) times, for pain management (p. 76). She also underwent ablation procedures for her back (p. 83). Dr. Sanders did not recommend any surgery, or any orthopedist (p. 78).
She conceded being involved in two (2) prior accidents, in 2006 and 2017 (pp. 39-40). The 2006 was a rear-end motor vehicle accident; EMTs put her in a back brace and she was taken to Woodhull Hospital (pp. 40-42). She underwent physical therapy, injections, Left Knee surgery, and brought a "serious injury" lawsuit for her 2006 injuries (pp. 42-46). The 2017 prior motor vehicle accident was a sideswipe; she was again taken by ambulance to the hospital (pp. 48-49). She underwent physical therapy and Right Knee surgery, and her 2017 injuries included her head, back and Right Knee; she was also given a back brace, ice packs, cane and special chair for her prior 2017 injuries (pp. 49-51, 55). Within 30 days prior to the subject accident, she still had moderate back pain (p. 54). She conceded that when she underwent treatment for the subject accident, she never provided any medical records from her prior injuries or treatment to her medical providers (p. 58). When asked, she then also conceded being involved in another prior accident on August 8, 2010; she could not recall a prior accident in May 2016 (pp. 93-94).
She was never confined to her home following this accident (p. 84). When asked if she had any limitations or restrictions as a result of this accident, she replied: "No." (p. 89). She later alleged being limited in exercising, bending, walking, performing household chores, and sitting and standing for long periods (pp. 89-92).
She is 58, 5'6" and 155 pounds; at the time of this accident she was 179 pounds (p. 11). Her highest level of education is high school in Jamaica (p. 10). She has resided at her Brooklyn, NY two (2) story home for 30 years; she resides with her husband and 4 children, ages 25, 22, 20 and 18 (pp. 7, 9). She has not required any special accommodation to her home (p. 10).
B. Plaintiff TB
(1) Dr. Douglas B. Unis's Exam Report (NYSCEF Doc No. 53)
Dr. Unis noted that TB was a front-seat passenger wearing a seatbelt when the vehicle he was in was hit in the rear. He wore his seatbelt. He reported no loss of consciousness or airbag deployment. He was taken to Woodhull Hospital following the accident. He initially complained of neck, low back and right shoulder pain. Treatment had consisted of physical therapy, acupuncture, chiropractic care, epidural steroid injections, and right shoulder arthroscopy.
Dr. Unis listed the numerous post-accident treatment records which he reviewed. He summarized them in chronological order. He noted that the cervical spine MRI revealed a disc herniation. On October 2, 2020, Dr. Andrew Miller performed right shoulder arthroscopic surgery which included a partial synovectomy, extensive subacromial decompression, and repair of a SLAP lesion.
TB walked in and out of the exam room with a non-antalgic gait with no assistive device, and he was able to get on and off the elevated exam table with both arms hyperextended with no pain or difficulty. Dr. Unis compared TB's observed range of motion to what is considered to be normal and found full range of motion throughout all planes of the cervical spine, right shoulder, left shoulder, bilateral elbows, bilateral hands/wrists, right knee, left knee and bilateral feet/ankles; and better than normal range of motion in the thoracolumbar spine, right hip and left hip. Range of motion testing was performed using a goniometer and the standards were based on the AMA Guides to Evaluation of Permanent Impairment, 6th Edition.
Dr. Unis also conducted the following provocative orthopedic tests which yielded negative results: Tenderness Paraspinals Test, Tenderness Trapezii Test, Spurling's Test, Clonus Test, Babinski Sign Test, Sternal Compression Test, Straight Leg Raise Test, Heel-Toe Walk Test, Hawkins Sign Test, Impingement Sign Test, Speed's Test, Yergason's Test, O'Brien's Test, Tinel's Sign Test, Phalen's Sign Test, Ober's Test, Stinchfield Test, FADIR Test, Trendelenberg Test, Thomas Test, McMurray Test, Lachman Test, Pivot Shift Test, Valgus Stress Test, and Varus Stress Test. Dr. Unis also found that the Plaintiff scored 5/5 in neurological muscle strength testing in all upper and lower extremities; had 5/5 serial grip strength; had no radiculopathy or internal derangement; had no tenderness, no spasm, no atrophy, no warmth, no swelling, no effusion and no crepitus; and had normal deep tendon reflexes, normal patellar and Achilles' reflexes, and normal sensory reception.
Dr. Unis diagnosed resolved cervical and lumbar spine sprain, bilateral knee strain, left shoulder strain, as well as healed status post right shoulder arthroscopy. Notably, he added:
With regard to the spine, today's examination of the cervical and lumbar spine was normal. There were no objective signs of radiculopathy or findings that correlated with the MRI report of the cervical or lumbar spine.
With regard to the knees, today's examination was normal. There were no objective signs of internal derangement which is consistent with the MRI testing that was performed on the knees. The claimant does have a past medical history of undergoing right knee arthroscopy due to a prior motor vehicle accident that occurred in 2015. If those medical records become available, then I would be happy to review them and provide further comment.
With regard to the shoulders, the right shoulder MRI report did not show a labral tear or any other pathology that might be appropriately treated surgically. The partial tear of the rotator cuff is chronic and not consistent with the mechanism of injury. The operative report of the right shoulder scope indicates a SLAP tear that was repaired however the MRI did not show this pathology and if it had, it would not be consistent with a [ ] seatbelt injury of this nature. The color intra-operative photos show a SLAP labral tear which appeared very small and degenerative in nature. In my medical opinion, the arthroscopy was not indicated. Regardless, he has recovered status post arthroscopy. The MRI report of the left shoulder revealed no acute pathology. Today's examination was normal with no objective signs of internal derangement.
In my medical opinion, the claimant is not disabled. He is able to work and perform his usual and customary activities of daily living without orthopedic limitations. There is no objective evidence of a causally related permanency.
(2) Examination Before Trial
Defendants' counsel, in his affirmation (NYSCEF Doc No. 46, Gerard Ferrara aff ¶ 11), emphasized the following testimony given by TB at his deposition, the transcript of which was submitted as NYSCEF Doc No. 52:
On April 17, 2020, he was a passenger in his mother's SUV when he was involved in the subject accident (p. 10). He did not lose consciousness, was not bleeding, did not sustain any swelling or bruising, and none of this clothing was torn (p. 14). He was able to exit his vehicle and check on his mother (pp. 14-15). EMTs checked him out, but, he did not go into the ambulance (p. 18). His father took them to Woodhull Hospital (p. 19). He underwent X-rays, and was released (p. 20).
He next sought treatment at Rockaway Medical (p. 21). He never provided any of his treatment providers for this accident, with any records or information regarding his multiple prior accidents and injuries (pp. 34-35). He treated at Rockaway Medical for a total of seven (7) to eight (8) months (p. 36). The therapy completely resolved his knee issues (p. 61). He underwent Right Shoulder surgery with Dr. Miller in October 2020 (pp. 38-39). Before surgery, Dr. Miller told him the surgery would provide a complete recovery; after surgery, Dr. Miller told him the surgery went well (pp. 39-40). He last saw Dr. Miller two (2) weeks after the surgery (pp. 40-42). When he ceased all treatment just seven (7) to eight (8) months after this accident, It was his decision (pp. 43-44).
He also previously underwent Right Shoulder surgery in 2016 (pp. 22-23). He was involved in two (2) prior motor vehicle accidents, in June 2015 and May 2016 (p. 23). In the June 2015 accident he was struck in the rear in a heavy impact; he was treated by EMTs and taken to Wyckoff Hospital with Right Knee and back complaints (pp. 24-25). He underwent follow-up treatment including Right Knee surgery in August 2015, and brought a "serious injury" lawsuit for those 2015 injuries, in which he received a settlement (pp. 26-27, 29). He missed 1-2 months of work following that 2015 accident (p. 30). Following the May 2016 accident, he was again treated by EMTs and taken to Wyckoff Hospital, and sustained back and Right Shoulder injuries (p. 31). He underwent Right Shoulder surgery, epidural injections to his back, and again brought a "serious injury" lawsuit for those 2016 injuries, in which he received a settlement (pp. 32-34). At the time of this accident, he was employed as a Peace Officer, with New York City Health & Hospital, assigned to Kings County Hospital (p. 44-45). He alleges missing two (2) weeks of work following this accident, and missing three (3) weeks following his surgery (pp. 46-47). The majority of his work duties entail sitting, standing and walking around the hospital (pp. 47-48). He... ceased working as a Peace Officer in December 2020, when he switched to working as a Behavioral Health Associate, wherein he works with patients with mental health issues (p. 49).... He alleges not being able to work out and exercise as he did previously (pp. 55-57). No doctor told him to limit his treadmill use; no doctor told him to limit his swimming (p. 58). He is 29, 6'4" and 250 pounds (p. 9). His highest level of education is high school (p. 8). He has been married for three (3) years (p. 8).
C. Discussion
As set forth above, Plaintiffs claimed the identical serious injury threshold categories in their bill of particulars (NYSCEF Doc No. 49, bill of particulars ¶ 15). They claimed that the serious injuries were "[a]s a result of this occurrence" (id.).
(1) "Permanent Injury"
There is no serious injury category as "permanent injury," as per the definition of serious injury in Insurance Law § 5102 (d). There is a category of "permanent loss of use of a body organ, member, function or system." A plaintiff claiming this category must prove that the permanent loss of use is a total loss of use (Oberly v Bangs Ambulance, Inc., 96 N.Y.2d 295 [2001]. Dr. Unis's IME reports established a prima facie case that neither Plaintiff sustained the total loss of use of an organ, member, function or system.
(2) Significant Disfigurement
Dr. Unis did not note any disfigurement. YB had well healed arthroscopy portals (NYSCEF Doc No. 51, YB IME at 7). So too did TB (NYSCEF Doc No. 53, TB IME at 6). There is nothing in any medical record to indicate any significant disfigurement and this Court is puzzled as to why Plaintiffs listed the category in their bill of particulars. Defendants made out a prima facie case as to the lack of a significant disfigurement (see Santos v Taveras, 55 A.D.3d 405 [1st Dept 2008]; Hoffman v Stechenfinger, 4 A.D.3d 778 [4th Dept 2004]).
(3) 90/180
This category is defined specifically as "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" (Insurance Law § 5102[d] [emphasis added]). By highlighting that neither Plaintiff was out of work for any significant period of time YB was not working beforehand and TB lost only three weeks Defendants made out a prima facie case that there is no issue of fact concerning the 90/180 category; Plaintiffs failed to establish a serious injury under that category (see Lanzarone v Goldman, 80 A.D.3d 667 [2d Dept 2011]; Sanchez v Williamsburg Volunteer of Hatzolah, Inc., 48 A.D.3d 664 [2d Dept 2008]).
YB's difficulties performing certain activities did not equate to being "prevent[ed]" (see Balshan v Bouck, 206 A.D.2d 747 [2d Dept 1994]), and she was not even working at the time of the accident (see Omar v Goodman, 295 A.D.2d 413 [2d Dept 2002]). YB's bill of particulars assertion that she was confined to bed/home for a period of approximately two weeks except for necessary and essential excursions for required purposes is belied by her deposition testimony that she was not restricted to her home, which inconsistency impairs her 90/180 claim (see Cabrera v Apple Provisions, Inc., 151 A.D.3d 594 [2d Dept 2017]). No doctor instructed TB to limit his treadmill exercising or swimming (see Calucci v Baker, 299 A.D.2d 897 [2d Dept 2002]). Taking all this into account, Defendants met their burden of proof to make out a prima facie case that Plaintiffs failed to meet the 90/180 category (see also Letellier v Walker, 222 A.D.2d 658 [2d Dept 1995]).
(4) Permanent Consequential Limitation of Use of a Body Organ or Member; Significant Limitation of Use of a Body Function or System
Dr. Unis's detailed IME reports (NYSCEF Doc Nos. 51, 53), reflecting extensive orthopedic testing and recording no limitations in any organ, member, function, or system, made out Defendants' prima facie case that these two limitation categories had not been met by Plaintiffs (see Toure, 98 N.Y.2d 345; Gaddy, 79 N.Y.2d 955).
(5) Proximate Causation
Dr. Unis opined that YB's right shoulder and spine conditions were not proximately caused by the subject motor vehicle accident (NYSCEF Doc No. 51, YB IME at 9). TB's right shoulder condition was chronic and not consistent with the mechanism of injury, according to Dr. Unis (NYSCEF Doc No. 53, TB IME at 9). YB conceded that she did not provide any medical records from her prior injuries or treatment to her medical providers, which impairs her claim of proximate causation from the subject accident (see Tusu v Leone, 187 A.D.3d 655 [1st Dept 2020]). Defendants' initial burden on the issue of proximate causation has been satisfied (see Lemieux v Horn, 209 A.D.3d 1100 [3d Dept 2022], affd N.Y.3d, 2023 NY Slip Op 01354 [2023]).
Dr. Unis noted that YB's cervical and lumbar conditions were superimposed on pre-existing degenerative changes but were resolved (NYSCEF Doc No. 51, YB IME at 9). YB herself swore that she had recovered from prior accidents (NYSCEF Doc No. 58, YB affidavit ¶ 11). While TB's right shoulder had a minor degenerative condition, he had recovered (NYSCEF Doc No. 53, TB IME at 9). TB himself swore that he had recovered from prior accidents (NYSCEF Doc No. 58, TB affidavit ¶ 11). Therefore, Defendants proved a lack of exacerbation (cf. Menjivar v Capers, A.D.3d, 214 A.D.3d 640 [2d Dept 2023]).
Plaintiffs' Evidence
Defendants having established a prima facie case to the effect that neither Plaintiff sustained a serious injury, the burden shifted to Plaintiffs to submit evidence, in admissible form, rebutting the presumption that there is no issue of fact as to the threshold question (see Franchini, 1 N.Y.3d 536; Grasso, 79 N.Y.2d 813). In opposition, Plaintiffs submitted an affirmation from their attorney, Mark J. Linder; their own affidavits; and medical records.
A. Plaintiffs' Affidavits
YB's affidavit was submitted in NYSCEF Doc No. 58. She attested to being in the subject accident as a driver. She maintained that she felt pain in her shoulders, neck, and back. She treated for five months. On July 24, 2020, she underwent right shoulder surgery with Dr. Miller. The pain interfered with her life on a daily basis, for example, sitting and standing for long periods of time, walking long distances, carrying and lifting, showering, getting dressed, and shopping. However, "We reject the holding of the majority of the Third Department that under these circumstances, pain may form the basis of 'serious injury'. To so hold would undercut the policy behind the No-Fault insurance scheme to reduce the number of automobile personal injury accident cases litigated in the courts and frustrate the Legislature's attempt to put an objective verbal definition of serious injury (Licari v Elliot, 57 N.Y.2d 230, 236, 239; see, Thrall v City of Syracuse, 96 A.D.2d 715, revd on dissenting opn below 60 N.Y.2d 950, rearg denied 61 N.Y.2d 905)" (Scheer v Koubek, 70 N.Y.2d 678 [1987]).
NYSCEF erroneously describes the contents of Doc No. 58 as "MRI Reports."
She stopped treating "because I reached maximum medical improvement" (¶ 8), yet in the next paragraph (¶ 9), she asserted that she "could not afford to pay the copayments needed to continue my treatment." At page 72 of her deposition (NYSCEF Doc No. 50), YB testified that she stopped treatment "Because I was feeling a little better than before when I started it but not a hundred percent." This is inconsistent and, as noted below, fails to explain the gap in treatment.
TB's affidavit was also submitted in NYSCEF Doc No. 58. He attested to being in the subject accident as a passenger. Prior thereto he was in good health. He treated with physical therapy and chiropractic. He received eight months of treatment. On October 2, 2020, he underwent right shoulder surgery with Dr. Miller. He still felt pain in his shoulders, neck, and back. The pain interferes with life on a daily basis, for example, sitting and standing for long periods, walking long distances, carry and lifting, getting up, showering, and doing chores. He too stopped treatment due to "maximum medical improvement," which was contradicted by his next paragraph's statement that he "could not afford to pay the copayments needed to continue my treatment" (¶¶ 7, 8). And this was further contradicted by his deposition testimony that he stopped physical therapy "because it became overwhelming to keep visiting the office even though I had the pain and I had to begin working, you know, more. (NYSCEF Doc No. 52, TB EBT at 44). Again, the presence of pain does not establish serious injury (Scheer, 70 N.Y.2d 678).
Neither of the Plaintiffs' affidavits specified his or her usual and customary daily activities before the accident which prevented the performance of substantially all of them, so the affidavits did not rebut Defendants' prima case regarding the 90/180 category (see Keena v Trappen, 294 A.D.2d 405 [2d Dept 2002]).
B. Medical Records
In NYSCEF Doc. No. 57 , Defendants submitted MRI reports. Dr. Sasan Azar affirmed to cervical and lumbar MRI reports of YB and TB. The reports recorded disc herniations and bulges. These reports did not create an issue of fact as to serious injury since they did not provide objective evidence of the extent or degree of alleged physical limitations (see Pierre v Nanton, 279 A.D.2d 621 [2d Dept 2001]). In the same NYSCEF Doc No. 57, there appears an affirmation of Dr. Steve Losik affirming to left and right shoulder MRI reports for YB. There were rotator cuff tears and a torn right shoulder tendon. Dr. Losik also affirmed to a right knee MRI report of TB. There was mild joint effusion. These reports did not create an issue of fact as to serious injury since they did not relate any conditions to limitations (see McLoud v Reyes, 82 A.D.3d 848 [2d Dept 2011]; Acosta v Alexandre, 70 A.D.3d 735 [2d Dept 2010]).
NYSCEF erroneously describes the contents of Doc No. 57 as "Affidavit."
Dr. Andrew Miller performed the right shoulder arthroscopies on Plaintiffs. His affirmations and operative reports (incorporated by reference in the affirmation) were submitted in NYSCEF Doc No. 59. He opined that Plaintiffs' injuries to their right shoulders were "causally related" to the subject April 17, 2020 accident, "and not due to a pre-existing condition or degeneration." However, Dr. Miller did not specifically relate how the shoulder pathology was proximately caused by this accident. He did not refer to and meaningfully rebut Dr. Unis's statement that the partial rotator cuff tear was chronic. He did not discuss the fact that TB underwent right shoulder surgery following a prior accident and how this impacted the causality issue. Dr. Miller's reports were conclusory (see Rosa v Delacruz, 32 N.Y.3d 1060 [2018]).
Plaintiffs submitted 471 pages of medical records, most of them unsworn and unaffirmed in NYSCEF Doc No. 61. They begin with an April 18, 2023 affirmation of Dr. Syed Maqsood, D.O., who wrote that he treated YB in 2020 in connection with injuries sustained in the April 17, 2020 motor vehicle accident. He related specific reduced ranges of motion in her cervical spine, lumbar spine, left shoulder, and right shoulder, using a goniometer and guided by the "normal" ranges of the American Medical Association. These findings were made on April 28, 2020. Without going into details, he concluded that YB's cervical and lumbar spine injuries were causally related to the accident at issue. This opinion on causality was conclusory and did not rebut Defendants' prima facie case on lack proximate causation established by Dr. Unis's IME reports (see Rosa, 32 N.Y.3d 1060; Pommels v Perez, 4 N.Y.3d 566 [2005]). He did not take into account any records from her prior accidents (see Penaloza v Chavez, 48 A.D.3d 654 [2d Dept 2008]).
Dr. Maqsood also wrote that "Copies of the records based upon Ms. Bishop' visits to my office as well as copies of my reports based on my physical examinations of Ms. Bishop, are attached hereto, the contents of which I adopt as accurate and true." This statement fails to authenticate the attached records (see CPLR 4518 [a]). The attached records include documents prepared by other medical personnel which are unsworn and unaffirmed. They are not admissible (see Matra v Raza, 53 A.D.3d 570 [2d Dept 2008]). Dr. Maqsood did not have the authority to ascribe probative value to other doctors' records (see Washington v Mendoza, 57 A.D.3d 972 [2d Dept 2008]). Dr. Maqsood did not describe how YB's injuries affected her daily life (see Keena, 294 A.D.2d 405).
Moreover, as mentioned above, YB swore in her affidavit that she treated for five months. Until she saw Dr. Christopher Kyriakides in December 2022, there was a long gap. Dr. Maqsood wrote that YB stopped receiving physical therapy at his facility because she reached maximum improvement, yet YB mentioned inability to afford copayments and she was feeling a little better. The gap was not satisfactorily explained (see Pommels, 4 N.Y.3d 566).
A similar affirmation of Dr. Maqsood regarding TB is contained at page 207 of NYSCEF Doc No. 61. The infirmities concerning the affirmation for YB apply likewise to this affirmation.
Within the 471 pages of medical records in NYSCEF Doc No. 61 are range of motion findings on April 28, 2020, yet they are unsworn. As a result the only admissible range of motion findings are those made of YB's and TB's movements on April 28, 2020 (as described in the two April 18, 2023 affirmations of Dr. Maqsood).
Finally in terms of medical records, Plaintiffs submitted examination reports of Dr. Christopher Kyriakides dated December 14, 2022. They are contained in NYSCEF Doc No. 60. He provided a brief history of the April 17, 2020 accident and post-accident treatment. They were present for "formalized evaluation." Dr. Kyriakides recorded reduced ranges of motion for YB in the cervical and thoracolumbar spine areas and in the bilateral shoulders. He diagnosed "[s]tatus post traumatic motor vehicle accident with resultant: 1. Cervical derangement with herniated discs and clinical evidence of radiculopathy. 2. Lumbosacral herniations with herniated discs and clinical evidence of radiculopathy. 3. Left shoulder impingement. 4. Right shoulder status post surgical repair." He opined that YB had sustained a partially permanently disabling injury as a direct result of the motor vehicle accident.
Dr. Kyriakides also provided a brief history of the April 17, 2020 accident in his report on TB. He recorded reduced ranges of motion for TB in the cervical and thoracolumbar spine areas, the bilateral shoulders, and the bilateral knees. He diagnosed "[s]tatus post traumatic motor vehicle accident with resultant: 1. Cervical derangement with clinical evidence of radiculopathy and herniated disc. 2. Lumbosacral derangement with disc pathology including clinical evidence of radiculopathy. 3. Right shoulder impingement with torn labrum status post surgical repair. 4. Left shoulder impingement. 5. Right knee internal derangement with limitations in mobility. 6. Left knee internal derangement. 7. Left fourth finger trauma with good resolution of symptomatology." He opined that TB had sustained a partially permanently disabling injury as a direct result of the motor vehicle accident.
While acknowledging treatment from previous accidents, Dr. Kyriakides did not indicate that he reviewed the medical records pertaining to treatment from them, which impairs his December 14, 2022 reports (see Penaloza, 48 A.D.3d 654). He did not state that he used a goniometer, rendering his range of motion findings less reliable (see Gersbeck v Cheema, 176 A.D.3d 684 [2d Dept 2019]; Alim v United States, 2023 WL 2929380 [SD NY 2023]), and neither did he explain why (cf. Mompremiew v New York City Transit Auth., 43 Misc.3d 1206[A], 2014 NY Slip Op 50511[U] [Sup Ct, NY County 2014]).
Furthermore, Dr. Kyriakides's examinations were conducted not for the purpose of treating Plaintiffs but for assessing the long-term sequelae of injuries (NYSCEF Doc No. 60 at 3). He indicated that the Plaintiffs were welcome to return to him for follow-up care or treatment if they chose (id. at 2, 5). Therefore, his reports were speculative and seemingly tailored to meet the statutory definition of serious injury (see Vaughn v Baez, 305 A.D.2d 101 [1st Dept 2003]).
C. Discussion
This Court finds that Dr. Maqsood's and Dr. Kyriakides's reports lacked probative value for the reasons set forth hereinabove. However, if they are considered probative, they provide the only arguably admissible evidence as to Plaintiffs' limitations. That leaves Plaintiffs with possibly admissible range of motion findings on only two dates, April 28, 2020 and December 14, 2022. A gap of two years and eight months lies between those dates. The gap is not adequately explained (see Pommels, 4 N.Y.3d 566). Conflicting reasons for it were provided by Plaintiffs was it maximum improvement, financial considerations, feeling a little better, or overwhelming to keep visiting the office? This is relevant because Defendants alleged a lack of proximate causation.
Dr. Unis's IME report for TB acknowledged reviewing range of motion study reports of May 26, 2020 and June 16, 2020. Similarly he reviewed range of motion study reports for YB dated May 19, 2020 to July 14, 2020. Assuming arguendo that they would now be considered probative on behalf of Plaintiffs (e.g., Djetoumani v Transit, Inc., 50 A.D.3d 944 [2d Dept 2008]), at best Plaintiffs established reduced ranges of motion post-accident at the latest in June and July of 2020, which still leaves a gap until December 14, 2022, when they were examined by Dr. Kyriakides.
Moreover, there is no admissible evidence from Plaintiffs as to the duration of their injuries (see Partlow v Meehan, 155 A.D.2d 647 [2d Dept 1989]).
The conclusory statements of Drs. Maqsood and Kyriakides were insufficient to rebut Dr. Unis's opinions regarding causality (see Franchini, 1 N.Y.3d 536). The latter's panoply of orthopedic test findings was neither rebutted by Dr. Maqsood nor Dr. Kyriakides, whose barebones examinations were quite limited and who did not review prior accident medical records (see Penaloza, 48 A.D.3d 654).
Conclusion
On this motion for summary judgment, defendants made out their prima facie case that Plaintiffs' alleged injuries were not serious as defined in Insurance Law § 5102 (d), as required by Insurance Law § 5104 (a). Further, to the extent Plaintiffs complained of certain injuries, in particular to YB's right shoulder and spine and TB's right shoulder, Defendant's established a lack of proximate causation or exacerbation. Plaintiff's evidence submitted in opposition to the motion failed to adequately rebut Defendants' prima facie case with admissible evidence. There are no material issues of fact regarding the asserted threshold categories and the aforesaid issue of proximate causation. Defendants are entitled to judgment dismissing Plaintiffs' complaint as a matter of law.
Accordingly, IT IS HEREBY ORDERED that Defendants' motion for summary judgment is GRANTED. The Clerk is directed to enter judgment dismissing the complaint.