Opinion
Index No. 158202/2018 Motion Seq. No. 001
11-01-2022
MARTIN CASTILLO, Plaintiff, v. SATVIR SINGH, Defendant.
Unpublished Opinion
MOTION DATE 03/22/2022
PRESENT: HON. JAMES G. CLYNES, JUSTICE
DECISION + ORDER ON MOTION
JAMES G. CLYNES, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 were read on this motion to/for JUDGMENT - SUMMARY.
This is a negligence action in which plaintiff Martin Castillo seeks damages for personal injuries that he allegedly sustained on April 15, 2018, when he was riding a bicycle and was injured when defendant Satvir Singh opened his vehicle's door and knocked plaintiff to the ground. Shortly after the accident, plaintiff went to Metropolitan Hospital for treatment to his right knee and right ankle, and for right-side pain, resulting from the accident. Plaintiff alleges that his injuries resulted in "serious injuries" as that term is defined in Insurance Law § 5102.
Defendant now moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint on the ground that plaintiff cannot meet the serious injury threshold requirement as mandated by Insurance Law § 5102 (d).
For the reasons set forth below, defendant's motion for summary judgment is denied.
"'[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993] [citation omitted]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]). The burden is a heavy one: the facts must be viewed in the light most favorable to the non-moving party and every available inference must be drawn in the non-moving party's favor (Sherman v New York State Thruway Auth., 27 N.Y.3d 1019, 1021 [2016]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad, 64 N.Y.2d at 853; see also Lesocovich v 180 Madison Ave. Corp., 81 N.Y.2d 982 [1993]).
The party opposing summary judgment has the burden of presenting evidentiary facts sufficient to raise triable issues of fact (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; CitiFinancial Co. [DE] v McKinney, 27 A.D.3d 224, 226 [1st Dept 2006]). The court is required to examine the evidence in a light most favorable to the party opposing the motion (Martin v Briggs, 235 A.D.2d 192, 196 [1st Dept 1997]). Summary judgment is a drastic remedy that may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]), and "should not be granted where there is any doubt as to the existence of a triable issue" of fact (American Home Assur. Co. v Amer ford Inti. Corp., 200 A.D.2d 472, 473 [1st Dept 1994]; accord Birnbaum v Hyman, 43 A.D.3d 374, 375 [1st Dept 2007]).
Plaintiff alleges that he sustained "serious injuries," as that term is defined in Insurance Law § 5102 (d) (see complaint, [NYSCEF Doc No. 1], ¶ 11). In the Amended Verified Bill of Particulars and Second Amended Verified Bill of Particulars (NYSCEF Doc No. 42), plaintiff alleges that he sustained soft tissue injuries to the right knee and right ankle. Plaintiff claims that these allegations constitute serious injuries under the applicable categories of the statute.
'"Under New York's No-Fault Law, an injured party's right to bring a personal injury action for noneconomic losses ... arising out of an automobile accident is limited to those instances where such individual has sustained a serious injury'" (Mesiti v Martin, 190 A.D.3d 1145, 1146 [3d Dept 2021] [citation omitted]; see Insurance Law § 5102 [d]). Under Insurance Law § 5102 (d), a serious injury includes, as is relevant here:
"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 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 [90] days during the [180] days immediately following the occurrence of the injury or impairment."(Insurance Law 5102 [d]).
"Whether a limitation of use or function is 'significant' or 'consequential' (i.e., important) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel v Green, 84 N.Y.2d 795, 798 [1995] [citations omitted]; accord Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 353 [2002]).
On a motion for summary judgment, the defendant bears the initial burden of establishing, through competent medical evidence, that the plaintiff did not sustain a serious injury as a result of the subject accident (see Antepara v Garcia, 194 A.D.3d 513, 513 [1st Dept 2021]; Cohen v Bayer, 167 A.D.3d 1397, 1398 [3d Dept 2018]). If this threshold burden is met, the plaintiff must come forward with objective medical evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury (Toure, 98 N.Y.2d at 350-352; see Cortez v Bray, 192 A.D.3d 451, 451 [1st Dept 2021]). Specifically, a plaintiff must show proof of: (1) contemporaneous treatment - quantitative or qualitative - establishing that the plaintiff's injuries were causally related to the accident; and (2) a recent examination establishing the permanency of the injuries (see Perl v Meher, 18 N.Y.3d 208, 217-218 [2011] [no requirement for contemporaneous quantitative measurements, treating doctor may observe and record plaintiff's symptoms in qualitative terms, and later do more specific quantitative measurements in anticipation of litigation]).
In support of his motion for summary judgment, defendant submits the affirmed medical report of Pierce J. Ferriter, MD, an orthopedist (NYSCEF Doc No. 34), as well as the transcript of plaintiffs deposition testimony given on September 16, 2019 (NYSCEF Doc No. 32). Defendant argues that based upon this evidence, plaintiffs allegations of injury are unsubstantiated, and cannot meet the statutory threshold requirements of "serious injury," under any of the applicable categories.
Plaintiffs deposition testimony establishes that while no ambulance was called to the scene, and plaintiff had no cellphone to make such a call, after he returned to work, he went to the emergency room at Metropolitan Hospital. There they performed x-rays of his right knee, right ankle and ribs, which revealed no fractures (NYSCEF Doc. No. 32, plaintiffs deposition [Castillo tr] at 32, 57-60, 65, 69-73). Plaintiff testified that, thereafter, he went to Dr. Capiola and Dr. Scilaris of Orthopedic Specialists of Greater New York, who did additional x-rays and sent him for an MRI of both the right ankle and right knee in August 2018 (id. at 73-75). They also sent him to physical therapy, which he went to for six months, gave him injections in his right knee, and sent him for acupuncture for the right knee and right ankle (id. at 75-77, 81-82). They further recommended surgery for his injuries (id. at 78-80). He underwent surgery for his right ankle on November 18, 2020, and for his right knee on March 10, 2021, both of which took place after his deposition (see NYSCEF Doc. No. 43, report of Thomas Scilaris, M.D. [Dr. Scilaris rep]). Plaintiff also testified that he was confined to his bed for approximately a month and confined to his home for six months subsequent to the date of accident (id. at 83-84). He was confined to his bed and home for approximately three months following surgery on his right ankle on November 18, 2020, and three weeks after his right knee surgery on March 10, 2021 (NYSCEF Doc. No. 43, Dr. Scilaris rep. at 1; NYSCEF Doc. No. 42, affirmation of Anthony Iadevaia ¶ 12).
On November 25, 2019, Dr. Ferriter performed an orthopedic examination on plaintiff. Dr. Ferriter stated that plaintiff "reportedly sustained left knee and right ankle injuries as a result of the 4/15/2018 accident" (NYSCEF Doc. No. 34 at 1). He found plaintiffs injuries of left knee sprain/strain and right ankle sprain/strain to be resolved, with normal range of motion and negative objective testing. Specifically, Dr. Ferriter found that inspection of both areas revealed no swelling, heat, effusion, crepitus, tenderness, or atrophy in either area. He further found that active range of motion of the left knee revealed flexion to 150 degrees (150 degrees normal), extension to 0 degrees (0 degrees normal), and quadriceps and hamstring strength testing reveals 5/5 strength. With regard to the right ankle, Dr. Ferriter found that active range of motion revealed extension to 20 degrees (20 degrees normal), plantarflexion to 40 degrees (40 degrees normal), inversion to 30 degrees (30 degrees normal), and eversion to 20 degrees (20 degrees normal).
On April 12, 2021, Dr. Ferriter again examined plaintiff after his right knee (5/18/20) and right ankle surgery (3/10/21) (NYSCEF Doc. No. 36). He found with regard to the right knee well-healed arthroscopic scars, no heat, swelling, effusion, erythema, tenderness, or crepitus (id. at 3). Dr. Ferriter found active range of motion of the right knee revealed flexion to 150 degrees (150 degrees normal), and extension to 0 degrees (0 degrees normal), and quadriceps and hamstring strength at 5/5. With regard to the left knee and the right ankle, he found the same active ranges of motion as in his prior report (id. at 4-5).
Dr. Ferriter concluded in both reports that plaintiff presented with a normal orthopedic examination on all objective testing, and that the orthopedic examination was objectively normal, and indicated no findings which would result in orthopedic limitations in use of the body parts examined. Dr. Ferriter further concluded that plaintiff is capable of functional use of the examined body parts for normal activities of daily living, as well as usual daily activities, including work duties. He found that there was no permanency (NYSCEF Doc. No. 34 at 4; NYSCEF Doc. No. . 36 at 6). For his initial report, Dr. Ferriter reviewed only plaintiffs verified bill of particulars and a motor vehicle accident report (NYSCEF Doc. No. 34 at 2). For his subsequent report, Dr. Ferriter reviewed plaintiff s right knee x-ray from Metropolitan Hospital, the emergency room records, and the MRI report of plaintiffs knee from June 3, 2018. He did not review the medical records of plaintiff s MRI of his right ankle or the records for either of his surgeries (see NYSCEF Doc. No. 36 at 2-3).
This proof satisfies defendant's initial prima facie burden of establishing, by competent medical evidence, that plaintiff did not sustain a serious injury caused by the accident (see Toure, 98 N.Y.2d at 250-352). Defendant's orthopedist's findings of normal range of motion, negative objective testing and resolved injuries, establishes his prima facie case with respect to whether plaintiff sustained a "serious injury" (see Antepara, 194 A.D.3d at 513; Blumenberg v Lora, 193 A.D.3d 445, 445 [1st Dept 2021]; Cortez, 192 A.D.3d at 451; Tarjavaara v Considine, 188 A.D.3d 509, 510 [1st Dept 2020]; see e.g. Brownie v Redman, 145 A.D.3d 636, 637 [1st Dept 2016] ["Defendants made a prima facie showing that plaintiff did not sustain a serious injury to her left knee by submitting the report of an orthopedist, who found no objective evidence of disability and full range of motion"]).
In opposition, plaintiff raises triable issues of fact as to whether he suffered permanent or significant injuries causally related to the underlying automobile accident, by submitting the medical report of the orthopedic physician who examined and treated him in the aftermath of the accident, quantifying persistent and significant limitations of movement, after surgeries to both his right knee and ankle, as well as relevant portions of his deposition (see Reyes v Se Park, 127 A.D.3d 459,460 [1st Dept 2015]).
Plaintiff alleges that he was hit by defendant who opened the door of his car into the roadway on which plaintiff was traveling on his bicycle, knocking him to the ground, and that he immediately felt pain on the right side of his body and in his right knee and right ankle (NYSCEF Doc. No. 32, Castillo tr at 57). His knee was scraped, and he developed pain, bruising and swelling to both his right knee and ankle, and pain on his right side (id. at 56-58).
At the accident scene, plaintiff was laying in the roadway waiting for the police or an ambulance to be summoned, but none came (id. at 59). He got up out of the roadway with assistance from defendant, returned to work, and then went to Metropolitan Hospital, where he was examined, x-rayed, treated and released (id. at 69-72). Sometime later, he went to the police precinct to file a police report (id. at 60-62).
'Ten days after the accident, plaintiff followed up with his treating doctor, Dr. Scilaris, an orthopedist (NYSCEF Doc. No. 43, Dr. Scilaris rep at 1). Dr. Scilaris did x-rays, sent plaintiff for MRIs of his right knee and right ankle, sent him to physical therapy and acupuncture, and gave him injections for his pain (see NYSCEF Doc. No. 32, Castillo tr at 73-82; NYSCEF Doc. No. 43, Scilaris rep at 1-2).
Dr. Scilaris recently examined plaintiff, on April 13, 2022, and recounted his treatment of plaintiff from the date of the accident through the surgeries and to the present. With respect to plaintiffs knee injury, Dr. Scilaris correlates the MRI findings of "tear of the posterior horn medial meniscus" of the right knee and "partial tears of the inferior tibiofibular ligaments as well as the anterior and posterior talofibular ligaments" of the right ankle, to the accident (NYSCEF Doc. No. 43, at 1-2). He indicates that, on November 18, 2020, he performed right ankle arthroscopy, debridement of a partial ATFL tear, extensive debridement of medial and lateral gutter impairment, and synovectomy of the ankle joint. Dr. Scilaris further states that, on March 10, 2021, he performed right knee arthroscopy, partial medial meniscectomy, partial lateral meniscectomy, chondroplasty patella of medial femoral condyle, three-compartment synovectomy, and excision of multiple cartilaginous loose bodies (id.).
After examining plaintiff on March 18, 2022, and reviewing his own office's medical records, medical records from Dr. Ferriter, from Metropolitan Hospital and from Surgicare of Manhattan, as well as the MRIs from Kolb Radiology, Dr. Scilaris found continuing significant limitations in the ranges of motion of plaintiffs right knee and right ankle (id. at 2). Specifically, Dr. Scilaris found that upon physical examination with a goniometer of plaintiff s right knee the range of motion is 0 to 115 degrees (normal is 0 to 140 degrees), and that there was patellofemoral crepitus as well as atrophy of the quadriceps and adductor musculature, with the quadriceps measurement 45.5 cm as compared to 46 cm on the contralateral side. Dr. Scilaris found that examination of the right ankle revealed dorsiflexion at 10 degrees (normal 0 to 20 degrees) and eversion at 10 degrees (normal 0 to 20 degrees), with gastrocnemius and soleus complex musculature atrophy measuring 22 cm on the right side as compared to 23 cm on the contralateral side (id. at 2).
With respect to causation, Dr. Scilaris specifically avers that "[t]he above-mentioned injuries are casually [sic] related to the motor vehicle-related accident sustained on 4/15/2018" (id. at 2). He concludes that if plaintiffs symptoms persist or worsen additional treatment in the form of diagnostic studies, pain medication, and injection may be necessary. With respect to plaintiffs injuries, Dr. Scilaris reached the following additional conclusions:
"It is my further opinion that, within a reasonable degree of medical certainty, although further treatment may alleviate some of Mr. Castillo's symptoms, his injuries cannot be completely resolved by further medical intervention, and there will always be some aspect of residual permanent injuries experienced for the balance of Mr. Castillo's lifetime" (id. at 2).
In his testimony at his deposition, plaintiff states that after the accident he missed work for approximately seven or eight months (NYSCEF Doc. No. 32, Castillo tr at 93). Dr. Scilaris indicated that plaintiff was disabled and unable to return to work for three months following his surgeries (NYSCEF Doc. No. 43). Plaintiff had some difficulty performing daily household chores, such as he could not cook and needed to buy his food prepared from restaurants and had someone help him with his laundry (NYSCEF Doc. No. 32, Castillo tr at 88-91). He testified that before this accident he had no other accident, injury or medical problem affecting his right knee and right ankle (id. at 86). He avers that he still has pain, he cannot bend down, has difficulty going up and down stairs, and cannot pedal a bicycle anymore (id. at 105-107).
Plaintiffs submissions are sufficient to raise triable issues of fact as to whether he sustained significant and consequential limitations of use as a result of the accident (see Gordon v Hernandez, 181 A.D.3d 424, 425 [1st Dept 2020]; De Los Santos v Basilio, 176 A.D.3d 544, 545 [1st Dept 2019]; Hamilton v Marom, 178 A.D.3d 424, 425 [1st Dept 2019]).
Dr. Scilaris' report satisfies the requirement of a contemporaneous quantitative and qualitative evaluation, describing plaintiffs treatment after his visit to Metropolitan Hospital, plaintiffs visits to Dr. Scilaris' office, and his subsequent surgeries to his right knee and right ankle, along with his quantified limitations, as compared to normal ranges of motion. Dr. Scilaris found that, on qualitative terms, even after the two surgeries, plaintiff had intermittent pain, difficulty ambulating for several blocks, walking and standing for long periods of time, as well as muscle atrophy and crepitus in and around the areas of the surgeries (see NYSCEF Doc. No. 43, at 1-2). On quantitative terms, range of motion testing was performed and as previously discussed, significant limitations in range of motion were found (see id., at 2). He also states that there is atrophy in the quadriceps and adductor musculature in connection with the right knee with quadriceps measurement of 45.5cm on the right side as compared to 46 cm on the left. With respect to the right ankle, there is gastrocnemius and soleus complex musculature atrophy measuring 22 cm on the right as compared to 23 cm on the left (id.). These injuries were objectively confirmed by plaintiffs MRI examinations, which Dr. Scilaris affirmed that the right knee showed evidence of a tear of the posterior horn medial meniscus, and the right ankle showed evidence of partial tears of the inferior tibiofibular ligaments as well as the anterior and posterior talofibular ligaments (see id. at 1).
Dr. Scilaris' report documents an additional recent assessment and shows quantified continuing limitations of motion (see NYSCEF Doc. No. 43, at 2). Dr. Scilaris also opines that plaintiffs injuries are causally related to the accident (see id.).
All of these submissions are sufficient to raise issues of fact, requiring denial of the motion (see Marcelo v Fabius, 195 A.D.3d 472, 472-473 [1st Dept 2021] [plaintiff sufficiently raised an issue of fact as to whether her injuries were significant, permanent and causally related to the . automobile accident by providing contemporaneous proof of treatment by her physician the day after the accident, which documented limitations in range of motion, as well as affirmed report of physician who found continuing significant limitations in range of motion and who opined that plaintiffs injuries were causally related to accident]; Gordon, 181 A.D.3d at 424-425 [plaintiff raised fact issue as to permanent and significant injury by submitting report of pain management specialist, finding restricted range of motion shortly after accident and in recent exam, and opining that injuries were causally related to accident]; De Los Santos, 176 A.D.3d at 545 [plaintiffs doctors' reports providing quantified range of motion restrictions compared to normal held sufficient to show continuing limitations]; Montoya v Rosenberger, 176 A.D.3d 581, 581-582 [1st Dept 2019] [contemporaneous treatment shown establishing causal link]; Hamilton, 178 A.D.3d at 425 [limitations of motion found by plaintiffs treating orthopedist who opined there was a causal relationship between injuries and accident]).
Although defendant argues that the medical evidence he presented, consisting of Dr. Ferriter's reports shows that "plaintiffs allegations of injury were not caused by this accident, that no trauma was sustained," and that any injuries did not qualify under the statute, Dr. Ferriter admits that he did not review any medical records for his first examination and he did not review the medical records of plaintiff s MRI of his right ankle, or the medical records for either of his surgeries (see NYSCEF Doc. No. 19, defendant's affirmation in support, ¶ 17; see also NYSCEF Doc. Nos. 34, 36). Importantly, plaintiffs physician, Dr. Scilaris, makes a causal connection between the accident and plaintiffs injuries. This is sufficient to raise an issue of fact, requiring denial of defendant's motion (see Massillon v Regalado, 176 A.D.3d 600, 601 [1st Dept 2019] [although defendant's radiologist opined that the conditions were degenerative, plaintiff refuted with MRI and plaintiffs treating doctors' opinions that conditions were causally related to the accident]; Montoya, 176 A.D.3d at 582 [where no reported prior injury and onset of symptoms shortly after accident, plaintiffs treating doctor's opinion that conditions were causally related to the accident sufficiently raised an equally plausible cause of the injuries]). Defendant points to another fall plaintiff had taken on his bicycle in April or May of 2019 (four or five months before his deposition) as the cause of his injuries, but defendant presents no other proof. Moreover, plaintiff clearly testified that he only hurt his left hand in that fall (id. at 86-88).
With respect to the 90/180 days category of serious injury, to make a prima facie case, the defendant must either point to medical evidence that the plaintiff did not sustain a medically determined injury that prevented him or her from performing substantially all of his or her customary daily activities within the relevant period (see Fernandez v Hernandez, 151 A.D.3d 581, 582 [1st Dept 2017]; Frias v Gonzalez-Vargas, 147 A.D.3d 500, 502 [1st Dept 2017]), or to evidence that plaintiff actually performed his usual and customary activities (see Bianchi v Mason, 179 A.D.3d 567, 568 [1st Dept 2020]; Olivare v Tomlin, 187 A.D.3d 642, 643 [1st Dept 2020]).
Although defendant argues that his "proof ruled out the 90/180 day category of the statute" because "this category requires proof that plaintiff was medically prevented from performing 'substantially all' of [his] usual and customary activities for the requisite period" (see NYSCEF Doc. No. 19, defendant's affirmation in support, ¶ 24), defendant fails to provide any facts or argument supporting this prong of the Insurance Law in his moving papers. His attempt to support this category for the first time in his reply papers is inappropriate as it deprives plaintiff of the opportunity to address his assertions. It is noted that plaintiff testified at his deposition that he was confined to home for approximately seven or eight months immediately after the accident (NYSCEF Doc. No. 32, Castillo tr at 93), Dr. Scilaris indicated that plaintiff was disabled and unable to return to work for three months following his surgeries (NYSCEF Doc. No. 43), and plaintiff testified that he had difficulty performing daily household chores, such as he could not cook and needed to buy his food prepared from restaurants, and have someone help him with his laundry (NYSCEF Doc. No. 32, Castillo tr at 88-91). As a result, the motion with respect to this prong also is denied (see Robinson v Joseph, 99 A.D.3d 568, 569 [1st Dept 2012] [finding that defendants "failed to meet their initial burden as to plaintiffs 90/180-day claim, since they relied only on the reports of their medical experts who did not examine plaintiff during the relevant statutory period and did not address plaintiffs condition during the relevant period"]).
Finally, defendant's argument that there was a gap in plaintiffs treatment will not be addressed as, again it was inappropriately raised for the first time on reply, and plaintiff has not had the opportunity to respond to this. The court notes that while plaintiff has not submitted a report from Dr. Scilaris' initial examination and his surgical records, Dr. Scilaris recounts that examination and treatment in the report submitted, demonstrating his treatment of plaintiff from shortly after the accident on April 26, 2018, and on through his surgeries and afterwards (see NYSCEF Doc. No. 43, Dr. Scilaris rep at 1). His treatment and findings, together with his report of positive MRI findings provided objective evidence of injury (see Reyes v Se Park, 127 A.D.3d at 460). Defendant's argument that the MRI findings cannot be relied upon by plaintiffs doctor because they have not been admitted into evidence is unavailing. Dr. Scilaris relied upon the MRI reports in making his diagnosis and treating plaintiffs injuries and plaintiff was not trying to admit them into evidence. Moreover, while the MRI reports were not submitted, they could be considered in opposition to summary judgment, and the positive MRI findings were not the only objective evidence relied upon by plaintiffs treating physician in support of his opinion (id.).
Accordingly, it is
ORDERED that defendant's motion for summary judgment is denied; and it is further
ORDERED that within 30 days of entry, movant shall serve a copy of this Order upon plaintiff with notice of entry.
This constitutes the Decision and Order of the Court.