Opinion
065421/2002.
Decided February 10, 2005.
Defendant moves pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that plaintiff has failed to establish a prima facie case that she sustained a "serious injury" as defined in section 5102(d) of the Insurance Law. Alternatively, defendant moves pursuant to CPLR 3126 to strike the complaint on the ground that plaintiff has failed to comply with discovery demands and prior orders of this Court.
Plaintiff opposes defendant's motion and cross-moves for summary judgment pursuant to CPLR 3212 on the issue of liability, alleging that defendant bears the sole responsibility for causing the subject motor vehicle accident, predicated on the fact that defendant rear-ended plaintiff's vehicle, giving rise to a presumption of negligence on defendant's part, which she has not denied.
On Saturday, April 14, 2001, at approximately 4:15 A.M., at the intersection of the FDR Drive and the Brooklyn Bridge, in Manhattan, plaintiff and defendant's vehicles were involved in a two-car collision which, according to plaintiff, was caused solely by defendant's negligence, in that her automobile, which was driven by her son with her consent, struck plaintiff's vehicle from the rear. Plaintiff maintains that she was not negligent or at fault in any way, which defendant disputes, and that she suffered a "serious injury" as defined in section 5102 (d) of the Insurance Law, which defendant also challenges. According to the affidavit of defendant's son, Cody Delgado, the operator of her automobile, the accident occurred in "moving slow and go" traffic. At the time of the impact, described by Mr. Delgado as "slight," plaintiff's vehicle had slowed abruptly and was tapped by his vehicle, leaving merely a scratch on plaintiff's bumper. Thereafter, he claims that plaintiff left the accident scene, while plaintiff alleges that Mr. Delgado did so, after threatening her, if the accident was reported. To the contrary, asserts Mr. Delgado, plaintiff offered not to report the accident if financial accommodations could be made; an offer which he declined. Thus, plaintiff maintains that factual issues exist as to whether she suffered a "serious injury," and defendant contends that factual issues exist on the question of her liability, and that plaintiff's cross-motion is, in any event, untimely.
The Court will initially discuss the liability matter, since its continued relevance to the case is affected by the determination of whether or not a "serious injury" was sustained. Consequently, the issue of the timeliness, or lack thereof, of plaintiff's cross-motion shall also be discussed.
When a stopped vehicle is struck from the rear, it is presumed that the vehicle that struck it is negligent, and unless that vehicle's operator provides a non-negligent, reasonable explanation for the collision, the operator of the struck vehicle is entitled to summary judgment (Agramonte, et al. v. City of New York, et al., 288 AD2d 75 [1st Dept., 2001]; Crociata, et al. v. Vasquez, et al., 168 AD2d 410 [2nd Dept., 1990]; Young, et al. v. City of New York, 113 AD2d 833 [2nd Dept., 1985]). Even where the first vehicle stops suddenly, that fact is insufficient to rebut the inference of negligence ( Agramonte, et al. v. City of New York, et al., supra; Tricoli v. Malik, 268 AD2d 469 [2nd Dept., 2000]; Mascitti v. Greene, 250 AD2d 821 [2nd Dept., 1998]; Sass v. Ambu Trans, 238 AD2d 570 [2nd Dept., 1997]).
Until quite recently, in the First Department, a claim of "serious injury" was part of the prima facie case for liability (Maldonado, et al. v. DePalo, 277 AD2d 21 [1st Dept., 2000]; Porter, et al. v. SBD Trucking, et al., 284 AD2d 181 [1st Dept., 2001]; see also Von Maknassy v. Moran, et al., 294 AD2d 306 [1st Dept., 2002]; cf. Zecca v. Riccardelli, 293 AD2d 31 [2nd Dept., 2002]), in which that court vigorously held that proof of "serious injury" was separately required on the issue of damages. In the First Department, therefore, proof of "serious injury" was formerly required as part of the liability phase.
Quite recently, however, as noted above, the First Department effectively overruled Porter, et al. v. SBD Trucking, et al., 284 AD2d 181 (1st Dept., 2001) and Maldonado, et al. v. DePalo, 277 AD2d 21 (1st Dept., 2000), thus adopting the Second Department's view that a "serious injury" claim possesses a separate and distinct nature from the liability phase ( see Reid v. Brown, 308 AD2d 331 [1st Dept., 2003]) and Shinn v. Catanzaro, 1 AD3d 195 [1st Dept., 2003]). Of course, since the present litigation emanates from the Second Department, there is no question that the "serious injury" claim shall be evaluated and determined separately from defendant's liability, and the issue of either party's liability need only be decided if a factual issue exists as to whether plaintiff sustained a "serious injury" as contemplated in section 5102(d) of the Insurance Law.
Section 5102(d) of the Insurance Law defines a "serious injury" as "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 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." The legislative intent of this "No-Fault Law" was to weed out frivolous claims and to limit recovery to significant injuries (Dufel v. Green, 84 NY2d 795; also see Licari v. Elliott, 57 NY2d 230, 235-37). As such, in order to satisfy the statutory "serious injury" threshold, objective proof of a plaintiff's injuries is required (Lopez v. Senatore, 65 NY2d 1017, 1019-20). Subjective complaints of pain alone are legally insufficient ( Gaddy v. Eyler, 79 NY2d 955, 957; Scheer v. Koubek, 70 NY2d 678, 679). Generally, the appellate courts had required plaintiffs to submit objective medical evidence demonstrating that their medical experts had not only performed objective tests and that they had observed the reported limitations, but that these tests enabled them to objectively quantify these limitations, such as plaintiff's range of motion of the cervical or lumbar spine ( see, e.g., Grossman v. Wright, 268 AD2d 79 [2nd Dept., 2000]).
In Toure v. Avis Rent a Car Systems, Inc., et al., 98 NY2d 345, 353 (2002), however, the Court of Appeals ruled that while the affirmation of a neurosurgeon who had treated plaintiff Toure three years prior to defendants' motion for summary judgment did not ascribe a specific percentage to the loss of the range of motion in plaintiff's spine, he sufficiently described the "qualitative nature" of plaintiff's limitations "based on the normal function, purpose and use of the body part." Predicated on the neurosurgeon's objective assessment, which included objective medical evidence such as MRI and CT scan tests and reports, paired with his observations of muscle spasms during his physical examination of plaintiff, and considered in the light most favorable to him, the Court of Appeals concluded that this evidence was sufficient to defeat defendants' motion for summary judgment (Lopez v. Senatore, 65 NY2d 1017, 1020; cf. Gaddy v. Eyler, 79 NY2d 955, 957; Scheer v. Koubek, 70 NY2d 678, 679; Licari v. Elliott, 57 NY2d 230, 236.
Returning to the present litigation, the morning after the accident, complaining of neck and low back pain, plaintiff went to Harlem Hospital, where she was treated and released with a recommendation of bed rest; apparently, no X-rays were taken, however. Later that week, she consulted her treating chiropractor, Errol Toran, D.C., who she had already seen for complaints of back pain. Plaintiff had sought his care prior to the accident because, as a professional dancer and a dance instructor, she felt that her body was "off-center" (see transcript of plaintiff's EBT, at 43, l. 2-44, l. 24, September 12, 2003, defendant's "Exhibit F"). She received treatment from Dr. Toran, including physical therapy, until July, 2001. During the course of her deposition, plaintiff also admitted that in 1995, she was also involved in a motor vehicle accident in which she sustained injuries; in fact, it was initially thought that she had broken her neck, which was not the case (see EBT transcript, at 40, l. 18).
In her verified bill of particulars, dated November 13, 2002, plaintiff alleged the following injuries: to the lumbar spine, broad-based, predominantly mid-line subligamentus posterior disc herniation at the L5-S1 level, encroaching upon the canal and narrowing the lateral recesses bilaterally, the left more than the right; to the cervical spine: mid-line posterior disc bulging noted at C4-5; contusions; pain, tenderness and soreness; pain and stiffness of those areas surrounding the injured tissues, with the additional claim that plaintiff lost the function or use of a body part, member or system, and/or had a continuing disability to various parts of her body, along with an inability to perform her daily customary activities for at least 90 days of the 180 days immediately following the injury or impairment. Finally, plaintiff maintained that she was totally disabled on April 14, 2001, the day of the accident, was partially disabled between April 14 and 16, 2001, and was confined to both bed and home between those dates.
Returning to plaintiff's deposition, between 1998 and June, 2002, she worked as a certified Dance Educator for the New York City Board of Education, including work at two high schools. She was required to participate with her students, demonstrating the movements and studies for that day. On some days subsequent to the accident, she either could not at all perform her duties, or had to employ alternate methods. Yet plaintiff admitted that she never lost time from work because of the subject accident unlike the previous one in 1995 and she continued to participate in dance-related activities and performances; she was part of a performance group, and in May, 2001 she graduated from New York University with a degree in Dance Education and Performance. Approximately one year prior to the September 12, 2003 deposition, she assumed the position of Director of Dance Programs at Norfolk State University in Virginia, a full-time position without a staff.
It should be noted that the record from Harlem Hospital Center's emergency room indicates that, as part of her prior medical history, plaintiff was not only injured in Philadelphia in a motor vehicle accident in 1995, but also one in 1992, where she suffered no serious injuries. She was diagnosed as having multiple contusions, was advised to return for a re-evaluation if her pain worsened, and was instructed to use Tylenol or Motrin over the counter in order to relieve her pain.
In a May 21, 2001 physical therapy evaluation, it was reported that plaintiff had a history of physical therapy for lower back pain.
On December 5, 2003, Todd B. Soifer, M.D., of Kings Highway Orthopedic Associates, P.C., examined plaintiff for and on behalf of defendant. Physical examination of the cervical spine revealed an appropriate and symmetric range of motion. Range of motion of both shoulders, including abduction, forward motion, internal and external rotation were "appropriate and grossly symmetric." The trapezii were soft and supple, and elbow ranges of motion were appropriate, which included flexion, extension, supination and pronation, all of which were "appropriate and grossly symmetric." The deltoids, external rotators, biceps and triceps were 5/5 bilaterally, and C5, C6 and C7 were intact bilaterally; C4-T1 were intact to touch bilaterally.
An examination of the lower extremities demonstrated that plaintiff could ambulate on her heels and toes, and her paravertebral muscles were soft and supple. Straight-leg raising was negative bilaterally. The range of motion of her neck, back and upper and lower extremities were "appropriate," and there were no muscle weaknesses, atrophies or measurable changes.
Dr. Soifer's conclusion was that, from "an objective orthopedic standpoint," plaintiff possessed no objective orthopedic disability at the time of his examination. His diagnosis was status post-neck and back strains.
Based on the preceding, defendant's submissions are sufficient to meet her initial burden of showing that plaintiff has not met the "serious injury" threshold categorized in section 5102 (d) of the Insurance Law, therefore entitling defendant to judgment, as a matter of law. The burden now shifts to plaintiff who, through submission of objective, competent medical evidence, is required to demonstrate that factual issues exist as to whether she sustained a "serious injury" within the meaning of section 5102 (d) of the Insurance Law.
Plaintiff's cross-motion, in the context of its opposition to defendant's motion for summary judgment for lack of proof of a "serious injury," consists of her affidavit, one from Errol Toran, D.C., her former treating chiropractor, referencing two MRI reports, as conducted and supervised by David L. Milbauer, M.D., of Regency Medical Imaging, which are actually submitted as exhibits by defendant. Plaintiff also attaches the police report of the accident.
In her April 13, 2004 affidavit, plaintiff indicates that she has continued to experience low back pain and pain in her coccyx. She takes Motrin, props herself up with pillows and uses ice. She experiences soreness in her vertebra, has swelling, and is limited in her physical activities, such as being unable to perform certain dance movements. She feels "clearly limited" since the subject accident, and prior thereto, she was never diagnosed with a herniated disc.
In his affidavit in support of plaintiff's cross-motion, Dr. Toran reports that he treated plaintiff for three months following the accident, and that physical therapy, examinations and treatments were conducted throughout. Throughout this process, plaintiff experienced low back pain in particular and, inter alia, he observed a disc bulge at C4-5. Moreover, he recommended that MRI's be conducted of plaintiff's cervical and lumbar spine, and he reviewed Dr. Milbauer's report and findings, which he found to be "objective indicia of trauma." During the course of plaintiff's examinations and treatments, he determined that she was suffering from a disability and restrictions in her ranges of motion, concluding that "because of her young age," he diagnosed plaintiff's limitations as creating a "permanent condition."
Based on the preceding, plaintiff has failed to meet her shifting burden demonstrating a prima facie case may be established constituting the presence of a "serious injury" within the meaning of section 5102(d) of the Insurance Law. While this Court empathizes with her situation, and finds her claims of pain believable, subjective complaints alone are legally deficient to defeat a defendant's motion for summary judgment ( Toure v. Avis Rent a Car Systems, Inc., et al., 98 NY2d 345, 353; Gaddy v. Eyler, 79 NY2d 955, 957; Scheer v. Koubek, 70 NY2d 678, 679; Lopez v. Senatore, 65 NY2d 1017, 1019-20; Licari v. Elliott, 57 NY2d 230, 235-37, 239). While plaintiff avers in her affidavit that since the subject accident she feels "limited," and that presently she cannot perform certain dance activities, she fails to particularize these limitations, and nowhere in her affidavit or her pre-trial deposition testimony does she prove that she missed time from work, irrespective of whether changes were required in her pattern of work activities, which again are not particularized; and neither Dr. Toran nor any other chiropractor or physician authorized her to stay out of work at any time; at least, this record is devoid of such an instruction.
As to Dr. Toran's affidavit, this Court concludes that it is legally deficient to constitute objective, competent medical evidence that would warrant denying defendant's summary judgment motion. First, a diagnosis of a bulging or herniated disc in and of itself does not constitute a "serious injury" as contemplated in section 5102(d) of the Insurance Law (Manzano v. O'Neal, 285 AD2d 966 [4th Dept., 2001], reversed on other grounds, 98 NY2d 345, 353, n. 4 [2002]; Rose v. Furgerson, 281 AD2d 857 [3rd Dept., 2001], leave denied, 97 NY2d 602 (2001); Pierre v. Nanton, 279 AD2d 621 [2nd Dept., 2001]; Noble v. Ackerman, 252 AD2d 392 [1st Dept., 1998]). Thus, Dr. Toran was either required to quantify the effect that these injuries had on plaintiff's limitations, or, upon failing to ascribe specific percentages to the loss of the range of motion in plaintiff's spine, he needed to sufficiently describe the "qualitative nature" of her limitations, "based on the normal function, purpose and use of the body part." It was also necessary for Dr. Toran to attribute the limitations in plaintiff's physical activities to the nature of the injuries sustained, and that such limitations were a natural and expected medical consequence of her injuries (Toure v. Avis Rent a Car Systems, Inc., et al., supra; Melino v. Lauster, 195 AD2d 653 [3rd Dept., 1993], aff'd, 82 NY2d 828).
Although he comments in his affidavit that throughout her treatment process, plaintiff was shown to suffer from a disability and restrictions in her range of motion, Dr. Toran does not articulate and particularize the disability, nor does he indicate what objective tests he conducted that demonstrated plaintiff's limitations, and although MRI's and CT scans may be proffered as objective medical evidence (Toure v. Avis Rent a Car Systems, Inc., et al., supra), no copy of any sworn MRI report is attached to Dr. Toran's affidavit, and the MRI reports submitted along with a letter from Dr. Milbauer to Dr. Toran are also unsworn (see, Grasso v. Angerami, 79 NY2d 813). In addition, Dr. Toran's opinion that plaintiff sustained injuries from the subject accident including herniated and/or bulging discs is not supported by any objective tests he performed (Sherlock v. Smith, 273 AD2d 95 [1st Dept., 2000]; see also Grossman v. Wright, 268 AD2d 79 [2nd Dept., 2000].
Even casting aside the necessity of complying with the requirement that it be shown by Dr. Toran that he conducted quantified, objective medical tests that supported his ultimate conclusions ( Sherlock v. Smith, supra), Dr. Toran also failed to present legally sufficient evidence in his affidavit warranting denial of defendant's summary judgment motion as to the qualitative nature of plaintiff's injuries with respect to the normal function, purpose and use of any body, member, organ, function or system (Toure v. Avis Rent a Car Systems, Inc., et al, supra), and his affidavit therefore lacked probative value (Sherlock v. Smith, supra).
Finally, in light of this Court's finding that defendant's motion for summary judgment dismissing the complaint should be granted on the ground that plaintiff has failed to establish a prima facie case of "serious injury" in conformance with section 5102(d) of the Insurance Law, it is unnecessary for this Court to determine plaintiff's cross-motion on the issue of defendant's sole liability. The allegation of the cross-motion's untimeliness merits discussion, however.
CPLR 3212 (a) concerns the time for moving for summary judgment and the kind of action involved. It stipulates: "Any party may move for summary judgment in any action after issue has been joined; provided, however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than 120 days after the filing of the note of issue, except with leave of court, on good cause shown."
Defendant argues that plaintiff's cross-motion is untimely, and should be denied solely on that basis. Plaintiff filed two notices of trial in this action, the first in June, 2003, the second in October of that year. Defendant expeditiously moved to vacate the first one, which was ultimately granted. On February 25, 2004, plaintiff was ordered to comply with outstanding discovery demands requested by defendant, which were apparently complied with by the end of March.
In Gonzalez v. 98 Mag Leasing Corp., et al., 95 NY2d 124 (2000), the Court of Appeals held that the motion court did not abuse its discretion by entertaining a cross-motion for summary judgment by defendants more than 120 days after the filing of the note of issue. The court noted that the 120-day requirement was added to preclude "eleventh hour" summary judgment motions, and the fact that the statute permitted filing after 120 days, with leave of court, on good cause shown, indicated that the trial court possessed discretion to consider a motion made beyond the 120-day period. In this case, at the time plaintiff filed the note of issue and certificate of readiness, an outstanding notice existed to produce two witnesses for depositions, and defendants promptly moved to vacate the note of issue, noting the material, outstanding discovery. To the extent of permitting discovery, the trial judge granted the motion; and shortly after the crucial post-note of issue deposition of one of the witnesses occurred, defendants moved for summary judgment before the same judge who had earlier permitted further discovery.
The present litigation presents an analogous situation. While this Court does not support or condone unexcused delays in complying with discovery demands, once the February 25, 2004 court directive was issued, plaintiff complied with defendant's discovery demands within an acceptable time, and although plaintiff waited another three months or so before making its cross-motion, defendant's rights and position were not severely prejudiced under the circumstances, thus permitting this Court to entertain the admittedly untimely cross-motion. Nevertheless, as elaborated above, since this Court has determined that the complaint should be dismissed, the issue of liability raised in plaintiff's cross-motion need not be reviewed and decided.
Accordingly, for the foregoing reasons, defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff failed to establish a prima facie case of a "serious injury" as contemplated in section 5102(d) of the Insurance Law is hereby granted, and the complaint is dismissed. The relief sought by plaintiff in her cross-motion is correspondingly denied, and the Clerk is directed to enter judgment in favor of defendant.
This constitutes the decision and order of the Court.