Opinion
Index No. 607035/2018 Motion Seq. No. 001
10-14-2020
ALEXANDER FLOR, Plaintiff, v. RAJHEEN KIAM, Defendants.
PLTF'S/PET'S ATTORNEY: ZLOTOLOW& ASSOCIATES, PC PEFT'S/RESP ATTORNEY: BAKER, MCEVOY, MORRISSEY & MOSKOWITZ, PC.
Unpublished Opinion
ORIG. RETURN DATE: AUGUST 3, 2020
FINAL SUBMISSION DATE: SEPTEMBER 10, 2020
PLTF'S/PET'S ATTORNEY: ZLOTOLOW& ASSOCIATES, PC
PEFT'S/RESP ATTORNEY: BAKER, MCEVOY, MORRISSEY & MOSKOWITZ, PC.
HON. JOSEPH FARNETI Acting Justice
Upon the E-file document fist numbered 8 to 24 read on the application of defendant for an Order, pursuant to CPLR 3212, granting defendant summary judgment dismissing the complaint of plaintiff for failure to meet the serious injury threshold requirement of Insurance Law §5102 (d); it is
ORDERED that the motion by defendant for an Order, pursuant to CPLR 3212, granting defendant summary judgment and dismissing the complaint of plaintiff Alexander Flor, inasmuch as plaintiff, Alexander Fior, fails to meet the serious injury threshold requirement mandated by Insurance Law § 5102 (d), is hereby DENIED for the reasons set forth herein.
This is an action to recover damages for injuries allegedly sustained by plaintiff Alexander Flor ("Fior" or "plaintiff") as a result of a motor vehicle accident that occurred on May 1.3, 2017, on the eastbound side of the Belt Parkway, at or around its interchange with Springfield Boulevard, in the County of Queens, City and State of New York, Issue was joined on June 20, 2018. Plaintiff alleges in his verified bill of particulars injuries to his thoracolumbar spine including segmental and somatic dysfunction, subluxation complex (vertebral), radiculopathy, radiculitis, intervertebral disc disorder, sciatica, lumbar facet disorder, lumbar facet effusion, sprain, strain of muscle, fascia and tendon of the lower back, saeral dysfunction, lumbalgia, lumbar derangement, discitis, disc disorder, straightening of the lumbar lordosis, bulging discs at L 1-2, L 2-3, L 3-4, L 4-5, and L5-S1 with lumbar anterior disc extensions and diminished disc space height. Plaintiff further alleges injuries to his cervical spine including sprain, strain, contusion, internal derangement, radiculitis, myositis, myofascitis, myalgia and radiculopathy, bulging discs at C 3-4, C 5-6 with bifatera [foramina I disc herniations, and G 6-7 subligamentous disc bulging. Plaintiff further alleges injuries to his right ankle, including sprain, strain, contusion, internal derangement, intermediate to high-grade partial tear of the anterior talofibular ligament and calcaneal fibular ligament, tendinosis of the posterior tibial tendon, tendinosis of the peroneus brevis tendon, mild to moderate tibiotafar joint effusion and posterior subtalar joint effusion, preoperative diagnosis of right internal ankle derangement, torn anterior talofibular ligament and calcaneal fibular ligament, post operative diagnosis of right internal ankle derangement, torn anterior talofibular ligament, chondral interruption on tibial plafond, torn calcaneal fibular ligament, hypertrophied synovium, and soft tissue impingement, post-surgical scarring, post-traumatic arthritis, aggravation, activation and exacerbation of latent and quiescent cervical and lumbar DGD. Plaintiff further alleges these injuries are all permanent and progressive in nature. Plaintiff alleges that he was confined to his bed and home for three (3) days immediately following the accident, and confined to his home and out of work from November 24, 2017 through February 1, 2018.
Plaintiffs examination before trial was held on June 6, 2019. Plaintiff thereafter was examined by Dr. Darren Fitzpatrick ("Dr. Fitzpatrick"), radiologist, on December 20, 2018 and by Dr. Jesu Jacob ("Dr. Jacob"), orthopedic surgeon, on February 7,2020 on behalf of defendant.
Defendant now moves for summary judgment dismissing the complaint on the grounds that plaintiff has not sustained a serious injury under any of the categories of injuries listed under Insurance Law §5102 (d). In support of his motion, defendant submits an attorney affirmation, a copy of the pleadings, verified bill of particulars, the transcript of plaintiff's examination before trial, the' affirmed reports of Dr. Fitzpatrick, and the affirmed report of Dr. Jacob. Plaintiff opposes the motion and submits an attorney affirmation, the affirmed reports of Dr. Nazarali Visram, physiatrist {"Dr. Visram"), Dr. Steven M. Yager, pediatric surgeon ("Dr. Yager"), Dr. Marc Katzman, radiologist, Dr. Robert Diamond, radiologist, and Dr. Narayan B. Parachuri, radiologist, and plaintiffs hospital records.
Under New York law, there is no right of recovery for non-economie loss in ah action arising out of negligence in the use or operation of a motor vehicle in the absence of evidentiary proof of a "serious injury" as that term is defined in Insurance Law § 5102 (d). It has long-been established that the legislative intent underlying the No-Fault Law, as codified in Article 51 of the Insurance Law, "was to weed out frivolous claims and limit recovery to significant injuries" (Dufel V Green, 84 N.Y.2d 795, 622 N.Y.S.2d 900 [1995]; see also Toute v Avis Rent A CarSys,, 98 N.Y.2d 345, 746 N.Y.S.2d 865 £2002]). The determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Porcano v Lehman, 255 A.D.2d 430, 680 N.Y.S.2d 590 [2d Dept 1988]; Nolan v Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 [2d Dept 1984] aff'd 64 N.Y.S.2d 681, 485 N.Y.S.2d 526 [1984]).
Insurance Law § 5102 (d) defines "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 ninety days during the One hundred eighty days immediately following the occurrence of the injury or impairment."
In order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 N.Y.2d 295, 727 N.Y.S.2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system" categories, either objective evidence of the extent, percentage or degree of plaintiff's limitation or loss of range of motion must be provided or there must be a sufficient description of the "qualitative nature" of plaintiff's limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (see Perl v Metier, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011 ]; Toure v Avis Rent A Car Sys., supra). A minor mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Cebron v Tuncoglu, 109 A.D.3d631, 970 N.Y.S.2d 826 [2d Dept 2013]). In order to qualify under the 90/180-days category, an injury must be "medically determined" such that the condition must be substantiated by a physician and the condition must be causally related to the accident (see Damas v Valdes, 84 A.D.3d 87, 93, 921 N.Y.S.2d 114 [2d Dept 2011]).
On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Akhtar v Santos, 57 A.D.3d 593, 869 N.Y.S.2d 220 [2d Dept 2008]). A defendant can establish that a plaintiffs injuries are not serious within the meaning of insurance Law § 5102 (d) "by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff s claim" (Nunez vTeei, 162 A.D.3d 1058, 75 N.Y.S.3d 541 [2d Dept 2018]; see also Brite v Milter, 82 A.D.3d 811, 918 N.Y.S.2d 349 [2d Dept 2011]; Damas v Valdes, 84 A.D.3d 87, 921 N.Y.S.2d 114 [2d Dept 2011], citing Pagano v Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692 [2d Dept 1992]; Moore v. Edison, 25 A.D.3d 672, 811 N.Y.S.2d 724 [2d Dept 2006]; Farozes v. Kamran, 22 A.D.3d 458, 802N.Y.S.2d 706 [2d Dept 2005]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own expert witnesses, "those findings must be in admissible form, such as, affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept1992]). A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testimony and unsworn medical reports and records prepared by the plaintiffs own physicians (see Uribe v Jimenez, 133 A.D.3d 844, 20 N.Y.S.3d 555 [2d Dept 2015]; Elshaarawy v U-Haul Co. of Miss., 72 A.D.3d 878, 900 N.Y.S.2d 321 [2d Dept 2010], Fragale vGeiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001]; Grossman v Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 [2000]; Vignola v Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [2d Dept 1997]; Torres v Micheletti, 208 A.D.2d 519,616 N.Y.S.2d 1006 [2d Dept 1994]). The failure to make such a prima facie showing requires the 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, 853,48.7 N.Y.S.2d 316 [1985]; Boone v New York City Tr. Auth., 263 A.D.2d 463, 692 N.Y.S.2d 731 [2d Dept 1999]; Burns v Stranger, 31 A.D.3d 360, 819 N.Y.S.2d 60 [2d Dept 2006]; Rich-Wing v. Babooial. 18 A.D.3d 726, 795 N.Y.S.2d 706 [2d Dept 2005]). Once defendant has met this burden, plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, 84 N.Y.2d 795 622 N.Y.S.2d 900 [1995]; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Beltran v Powow Limo, inc., 98 A.D.3d 1070, 951 N.Y.S.2d 231 [2d Dept 2012]; Tornabene v Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [2d Dept 2003]; Pagano v Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692 [2d Dept 1992]).
Plaintiff testified at his deposition that his car was "totaled" in the accident and that he was taken by ambulance from the scene of the accident to Franklin General Hospital. Plaintiff testified that began treatment with Dr. Visram soon after and Was referred for MRIs after expressing complaints to his neck, back and right ankle. He was diagnosed with torn ligaments in this right ankle and had surgery to repair the tears. He underwent physical therapy for months following the accident, and post-surgery, he walked in crutches for about six weeks and then a cane for another two months. Plaintiff testified that he never had any prior or subsequent injuries or treatment to his injured areas Plaintiff further testified to difficulties performing every day activities such as tying his shoes, walking for long periods, going up stairs, and he can no longer run long distances, as he had done prior to the accident. He also testified he has difficulty exercising and is not able to go on vacation.
According to the affirmed report of Dr. Fitzpatrick dated December 20,2018, which defendant relies upon, the MR! of plaintiffs lumbar spine performed on July 2, 2017 reveals "multilevel small disc bulges with endplate productive changes" consistent with "mild, multilevel degenerative disc disease" not causally related to '-acute traumatic lumbar spine injury." Further, Dr. Fitzpatrick reports that the MRI of plaintiff s cervical spine performed on June 14, 2017 reveals a "small syrinx at C6-C7 with posterior fossa cyst suggesting an herniated cerebellar tonsils through the foramen magnum suggesting Dandy-Walker syndrome and Chiari 1 malformation respectively." Dr. Fitzpatrick opines that this condition "is more likely than not congenital or developmental in nature" and not the result of a traumatic injury. As to plaintiff's right ankle, Dr, Fitzpatrick reports that the review of the MRI performed On July 22, 2017 reveals an "unremarkable ankle MRI" and "no traumatic injury."
The affirmed report of Dr. Jacob, also relied upon by defendant, details his examination of plaintiff conducted on February 7, 2020. Dr Jacob notes plaintiff is a 28-year-old, 61" tall and weighs 245 pounds. Upon physical examination, Dr. Jacob performed range of motion tests to plaintiff's cervical, thoracic, and lumbosacral spines, as measured by a goniometer, with normal range of motion based on AMA Guides to the Evaluation of Permanent Impairment, 5th Edition. Specifically, Dr. Jacob reports range of motion tests reveal flexion of 40 degrees (50 degrees normal), extension to 40 degrees (60 degrees normal), right and left rotation to 70 degrees (80 degrees normal) and right and left lateral flexion to 30 degrees (45 degrees normal). Dr. Jacob further found the foraminal compression, spurting and traction tests were all negative and no spasm was elicited upon palpation. As to the plaintiffs thoracic spine, Dr. Jacob notes his examination revealed no tenderness, muscle spasm, and normal alignment. Dr, Jacob further reports range of motion tests reveal flexion to 45 degrees (45 degrees normal), extension to 0 degrees (0 degrees normal), right and left rotation to 30 degrees (30 degrees normal), and right and left lateral flexion to 45 degrees (45 degrees normal). Dr. Jacob reports the clonus and Jaguere's tests were negative. Regarding Dr. Jacob's examination of plaintiff's lumbosacral spine, he reports range of motion tests reveal flexion to 60 degrees (60 degrees normal), extension to 10 degrees (25 degrees normal) and right and left rotation to 25 degrees (25 degrees normal), Dr. Jacob further reported the forward flexion, straight leg raising, lasegue's test, kernig, and waddell's tests were negative. Upon examination of plaintiffs right ankle, Dr. Jacob reports range of motion tests reveal dorsiflexion to 10 degrees (20 degrees normal), palmar flexion to 30 degrees (40 degrees normal), eversion to 15 degrees (20 degrees normal) and inversion to 15 degrees (30 degrees normal). Dr. Jacob further noted multiple well-healed arthroscopic portals to plaintiffs right ankle. Dr. Jacob further reports the anterior drawer and thompson tests were negative. Based upon his examination, Dr. Jacob opines there is no objective findings of any permanent injury to the cervical, thoracic, and lumbar spines and that plaintiff's right ankle has healed following arthroscopic surgery. Dr. Jacob further opines that decreased ranges of motion are on a "voluntary basis" and "were not supported by the objective orthopedic examination findings."
Here, defendant's examining orthopedist reported significant limitations in ranges of motion to plaintiffs cervical spine, lumbosacral spine, and right ankle yet concludes that they were voluntary and subjective. However, Dr. Jacobs fails to explain, with any objective medical evidence, the basis for his conclusion that the limitations were self-imposed (Mercado v Mendoza, 133 A.D3d 833, 19 N.Y.S.3d 757 [2d Dept 2015]; Farrahv Pinos, 103 A.D.3d 831, 959 N.Y.S.2d 741 [2d Dept 2013]; Chung v Levy, 66 A.D.3d 946, 887 N.Y.S.2d 676 [2d Dept 2009]). Moreover, Dr. Jacob does not address the MRI studies or causation in his affirmed report. In addition, Dr. Fitzpatrick made findings of multilevel disc bulges with endplate productive changes to plaintiffs lumbar spine. While Dr. Fitzpatrick opines that the condition of plaintiffs lumbar spine is consistent with degenerative disc disease, he fails to offer ah explanation as to how this would occur to this plaintiff who was only 25 years of age at the time of the accident (see e.g. Blanchi v Mason, 179 A.D.3d 567, 118 N.Y.S.3d 559 [1st Dept 2020]). Further, neither Dr. Fitzpatrick nor Dr. Jacob relate their findings to the 90/180 serious injury category for the period of time immediately following the accident (Ballard v Cunneen, 76 A.D.3d 1037, 908 N.Y.S.2d 442 [2d Dept 2010]; Volpetti v Yoon Kap, 28 A.D.3d 750, 814 N.Y.S.2d 236 [2d Dept 2006]; see also Kapeleris v Riordan, 89 A.D.3d 903, 933 N.Y.S.2d 92 [2d Dept 2011J).
Based upon the above, defendant failed to meet his prima facie burden of establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) (see Nash v MRC Recovery, Inc., 172 A.D.3d 1213, 1215, 101 N.Y.S.3d 376, 378 [2d Dept 2019]; Nunez v Teel, 162 A.D.3d 1058, 75 N.Y.S.3d 541 [2d Dept 2018]; Ramos v Baig, 145 A.D.3d 695, 41 N.Y.S.3d 902 [2d Dept 2016]; Cockburn v Neal, 145 A.D.3d 660, 44 N.Y.S.3d 59 [2d Dept 2016]; Dean v Coffee-Dean, 144 A.D.3d 1080, 41 N.Y.S.3d 750 [2d Dept 2016]; Mercado v Mendoza, 133 A.D.3d 833, 19 N.Y.S.3d 757 [2d Dept 2015]; Quiceno v Mendoza, 72 A.D.3d 669, 897 N.Y.S.2d 643 [2d Dept 2010]). The affirmed reports of Dr. Fitzpatrick and Dr. Jacob fail to eliminate triable issues of fact as to whether plaintiff sustained a serious injury to his cervical and lumbar spines and right ankle under either the permanent consequential limitation of use or significant limitations of use categories under Insurance Law § 5102 (d) (see Greenidge v United Parcel Serv., Inc., 153 A.D.3d 905, 60 N.Y.S.3d 421 [2d Dept 2017]). Inasmuch as defendant failed to establish prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether plaintiffs opposing papers were sufficient to raise a triable issue of fact (see Cues v Tavarone, 85 A.D.3d 846, 925 N.Y.S.2d 346 [2d Dept 2011]; Reynolds v Wai Sang Leng, 78 A.D.3d 919, 911 N.Y.S.2d 431 [2d Dept 2010]; McMillan v Naparano, 61A.D.3d 943, 879 N.Y.S.2d 152 [2d Dept 2009]; Yong Deok Lee v Singh, 56 A.D.3d 662, 867 N.Y.S.2d 339 [2d Dept 2008]); Krayn v Torella, 40 A.D.3d 588, 833 N.Y.S.2d 406 [2d Dept. 2007]; Walker v Village of Osslning, 18 A.D.3d 867, 796 N.Y.S.2d 658 [2d Dept 2005]). Notwithstanding, even had this Court ruled that defendant's burden had been met, plaintiff presented objective medical evidence sufficient to raise issues of fact to be resolved at trial (see Romano v Persky, 117 A.D.3d 814, 985 N.Y.S.2d 633 [2d Dept 2014]; Kalpakisv County of Nassau, 289 A.D.2d 453, 735 N.Y.S.2d 427 [2d Dept 2001]). In that regard, plaintiff submitted an August 27, 2020 affirmed report of his treating physiatrist, Dr. Vis ram, an August 25, 2020 affirmed report of his treating and operating podiatrist. Dr. Yager, an affirmation of radiologist, Dr. Marc Katzman dated July 21, 2020, which refers to his MRI examination and report of June 15, 2017, the affirmation of radiologist, Dr. Robert Diamond, referring to his MRI and examination report of July 2, 2017, and the affirmation of radiologist, Dr. Narayan Parachuri, as to his findings of the MRI examination of plaintiffs right ankle performed on July 22, 2017.
Dr. Visrarri's examination reports significant reduced ranges of motion in plaintiffs cervical and lumbar spines measured with a goniometer and his review of the MRIs revealed disc herniation and bulges. Dr. Visram opined that while plaintiff had some improvement during his months of treatment and physical therapy, further treatment would not improve his injuries, which were chronic and permanent in nature. Dr. Visram opined that these injuries were due to the motor vehicle accident on May 13, 2017, Dr. Visram further addressed the opinion that plaintiffs injuries were degenerative in nature. According to Dr. Visram, the MRI of the cervical spine showed a C5-6 disc herniation, a right C5 radiculopathy shown on EDX studies, and his examination revealed significant reduced ranges of motion. Dr. Visram opined that based upon these findings and the young age of plaintiff, the injuries to plaintiff's cervical spine were traumatically induced. Dr. Visram further reported that the MRI films revealed no degenerative conditions to the cervical or lumbar spine, or right ankle.
Dr. Yager performed surgery on plaintiff s right ankle to repair a completely torn anterior talofibular ligament and calcaneal fibular ligament. Dr. Yager opined that these injuries were traumatically induced and that the accident of May 13, 2017 produced a significant limitation and a permanent and consequential limitation in the use and function of plaintiff s right ankle. Dr. Yager further opined plaintiff was likely to have traumatic arthritis in his later years as a result of the accident. The reported injuries that plaintiff sustained, including a traumatic cervical disc herniation, confirmed by MRI films; and two torn ligaments to his right ankle, both with significant limitations in ranges of motion, are sufficient to raise an issue of fact to be resolved at trial as to whether plaintiff sustained a serious injury under the permanent consequential and/or significant limitation of use categories of Insurance Law § 5102 (d) (see Gooden v Joseph, 137 A.D.3d 1215, 27 N.Y.S.3d 393 [2d Dept 2016]; Romanov Persky, 117 A.D.3d' 814, 985 N.Y.S.2d 633 [2d Dept.2014]; Khavosov v Castillo, 81 A.D.3d 903, 917 N.Y.S.2d 312 [2d Dept2011]; Mahmood v Vicks, 81 A.D.3d 606, 915 N.Y.S.2d 637 [2d Dept 2011]; Compass v GAE Transp. Inc., 79 A.D.3d 1091, 914 N.Y.S.2d 255 [2d Dept 2010]; Evans v Pitt, 77 A.D.3d 611, 908 N.Y.S.2d 729 [2d Dept 2010]; Tai Ho Kang v Young Sun Cho, 74 A.D.3d 1328, 904 N.Y.S.2d 743 [2d Dept 2010]) Moreover, the conflicting medical opinions of the respective experts of the parties raise issues of credibility to be resolved by a jury at trial (see Romano v Persky, 117 A.D.3d 814, 985 N.Y.S.2d 633 [2d Dept 2014]; Ocasio v Zorbas, 14 A.D.3d 499, 789 N.Y.S.2d 166 [2d Dept 2005]; Kalpakis v County of Nassau, 289 A.D.2d 453, 735 N.Y.S.2d 427 [2d Dept 2001]). Further, Dr. Visram's conclusion that plaintiffs injuries to his spine were induced by a trauma and were not degenerative in nature, creates a question of fact regarding causation (see Fraser-Baptiste v New York City Transit Authority, 81 A.D.3d 878, 917 NY32d 670 [2d Dept 2011]; Harris v Boudart, 70 A.D.3d 643, 893 N.Y.S.2d 631 [2d Dept 2010]). As to the gap in treatment, plaintiff s treating physician opined that plaintiff had reached maximum medical improvement and any further treatment would be palliative. These are sufficient justifications for cessation or gaps in treatment (see Jules v Barbecho, 55 A.D.3d 548, 549, 866 N.Y.S.2d 214 [2d Dept 2008]).
Accordingly, for the reasons set forth above, defendant's motion for summary judgment dismissing plaintiffs complaint is DENIED.
The foregoing constitutes the decision and Order of the Court.