Gentles v. Konkobo

Full title: STEVEN GENTLES, v. MOUSSA KONKOBO, et al.

Court: Supreme Court, Bronx County

Date published: Apr 20, 2021

2021 N.Y. Slip Op. 33899 (N.Y. Sup. Ct. 2021)

Opinion

Index No. 30020/2017E

04-20-2021

STEVEN GENTLES, v. MOUSSA KONKOBO, et al.

MARY ANN BRIGANTTI JUDGE

Unpublished Opinion

MARY ANN BRIGANTTI JUDGE

The following papers numbered 1 to 5__ were read on this motion (Seq. No. ___002___) for _SUMMARY JUDGMENT DEFENDANT___ noticed on __September 14, 2020 __.

Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed	No(s). 1,2
Answering Affidavit and Exhibits (Correspondence from Plaintiff Counsel)	No(s). 3,4
Replying Affidavit and Exhibits	No(s). 5

Upon the foregoing papers, the defendants Moussa Konkobo and NY 4 Leasing Corp. (“Defendants”) move for summary judgment, dismissing the complaint of the plaintiff Steven Gentles (“Plaintiff') on the grounds that Plaintiff has failed to satisfy the “serious injury” threshold as defined by New York Insurance Law §5102(d). Plaintiff opposes the motion.

At the outset the Court finds that Defendants have good cause for making this "untimely" motion. Plaintiff filed his note of issue on February 28, 2020. The time to file a motion for summary judgment therefore expired on April 28, 2020. However, on March 20, 2020, Executive Order 202.8 was issued, which provided in pertinent part: "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to...the civil practice law and rules...ox by any other statute, local law, ordinance, order, rule, regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (emphasis added). This "tolling" provision in Executive Order 202.8 was thereafter extended and remained in effect as of the date this motion was made (August 24, 2020), and it not lifted until November 4, 2020, by Executive Order 202.72 (dated November 3, 2020). The motion is therefore considered on its merits.

When a defendant seeks summary judgment alleging that a plaintiff does not meet the "serious injury" threshold required to maintain a lawsuit, the burden is on the defendant to establish through competent evidence that the plaintiff has no cause of action (Franchini v. Plameri, 1 N.Y.3d 536 [2003]). "Such evidence includes 'affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiffs claim"' (Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590 [1st Dept. 201 l][internal quotations omitted]). A defendant may also meet his or her summary judgment burden with sufficient medical evidence demonstrating that the plaintiffs injuries are not causally related to the accident (see Farrington v. Go On Time Car Service, 76 A.D.3d 818 [1st Dept. 2010], citing Pommels v. Perez, 4 N.Y.3d 566, 572 [2005]). Once this initial threshold is met, the burden shifts to the plaintiff to raise a material issue of fact using objective, admissible medical proof (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350 [2002]).

In this case, Defendants established, prima facie, that Plaintiff did not sustain permanent or significant injuries as a result of the subject accident. Defendants submit a sworn report from a radiologist who examined MRI reports of Plaintiff s cervical and lumbar spine MRIs. The radiologist opined that the MRI films revealed only non-traumatic degenerative conditions unrelated to the accident (see Walker v. Whitney, 132 A.D.3d 478 [1^st Dept. 2015]). Defendants also submit a sworn report from an expert in emergency medicine, who reviewed Plaintiffs emergency room records, and opined that they were inconsistent with the claimed injuries, and showed that the injuries were not acute or traumatic in origin (see Pastora L. v. Diallo, 167 A.D.3d 424, 424-25 [1st Dept. 2018]). Defendants also provide a sworn report from orthopedist Dr. lohn Buckner who reviewed Plaintiff s treatment records and conducted a physical examination. While he declined to compare range- of motion measurements to normal values, Dr. Buckner opined that Plaintiff presented with a normal evaluation after administering diagnostic objective tests (see Rodriguez v. Konate, 161 A.D.3d 565, 566 [1^st Dept. 2018]).

In opposition to the motion, Plaintiff submits a sworn report from Dr. Henry Hall of Co-op City Chiropractic, P.C. Plaintiff also submits a "radiologist certification" from Michael Paley, M.D. The Court finds that these submissions fail to raise an issue of fact as to whether Plaintiff sustained a "permanent consequential" or "significant" limitation as a result of this accident.

Dr. Hall states that Plaintiff presented to his office on 9/28/20 for examination and evaluation of injuries sustained on 9/24/16. The report lists the results of examinations of Plaintiff allegedly conducted on September 28, 2016, and recently on September 28, 2020, including range-of-motion and objective diagnostic test results. The report, however, does not state who actually performed the examination or range-of-motion measurements on either occasion. The report is vague in that it states "[r]ange of motion was assessed" using an inclinometer without disclosing who performed the assessment. If, for example, the examination was performed by a different chiropractor in Dr. Hall's office, the results would be inadmissible hearsay (see Nadim v. Gadi, Inc., 190 A.D.3d 648 [1^st Dept. 2021], citing Zee v. Rodriguez, 150 A.D.3d 481, 482 [1^st Dept. 2017]). Dr. Hall also does not provide evidence of limitations to any other allegedly injured body parts, such as the left shoulder, bilateral hips, or wrists.

Even assuming arguendo that the range-of-motion and objective diagnostic test results regarding the cervical and lumbar spine were admissible, Plaintiff's opposition fails to competently rebut Defendants' prima facie showing that those injuries were unrelated to the accident. As noted above, Defendants' radiologist reviewed the MRIs and although he found disc bulges, he opined that they were degenerative in origin and there was no post-traumatic change causally related to the subject accident. Defendants' expert in emergency medicine reviewed post-accident hospital records and similarly opined that there was no evidence of a significant acute injury to those body parts. The affirmation from Plaintiff s radiologist Dr. Paley states that the lumbar and cervical spine MRIs showed disc bulges and no evidence of degeneration. However, Dr. Paley's reports themselves, annexed to the affirmation, state that the "acuity" of the disc bulge findings were "indeterminate." Dr. Paley does not specifically opine that the MRI findings were related to the subject accident. Dr. Hall likewise reflects in his report that the MRIs of the cervical and lumbar spine showed disc bulges but the "acuity" of those findings were "indeterminate." Accordingly, while Dr. Hall ultimately states that the Plaintiff sustained "permanent injuries to his spine" and "permanent restriction of ranges of motion to the cervical and lumbar regions" as a result of this accident, this opinion is inconsistent with the radiologist's inconclusive findings as to the traumatic nature of the disc bulges, which Dr. Hall himself acknowledged (see, e.g., Andrade v. Lugo, 160 A.D.3d 535, 536 [1^st Dept. 2018]).

In addition, Plaintiff failed to competently explain his admitted cessation of therapy treatment after six months, as noted in Defendants' moving papers (see Alverio v. Martinez, 160 A.D.3d 454 [1^st Dept. 2018]). Plaintiff admitted that he ended physical therapy after six months (Pl. EBT at 37-39), and while he believed that "they stopped paying" his medical bills, Plaintiff conceded that he had health insurance at the time of the accident (Pl. EBT at 37-39; 44). Thus Plaintiff cannot rely on the lack of insurance payments to explain his cessation in treatment (Green v. Domino's Pizza, LLC, 140 A.D.3d 546, 547 [1^st Dept. 2016]; Merrick v. Lopez-Garcia, 100 A.D.3d 456, 457 [1^st Dept. 2012]). Dr. Hall's report provides no explanation for Plaintiff s cessation in therapy treatment. Dr. Hall's October 2020 report states, in the present tense, that "[t]he patient has reached maximum medical improvement. We are releasing them from therapeutic care, but we recommend continued symptomatic care" (emphasis added). The report does not explain why Plaintiff ended therapy several years earlier, only six months after the accident.

Defendants also carried their burden of demonstrating that Plaintiff did not sustain a "90/180 day" category of injury. Plaintiff admitted at his examination before trial that he was never confined to his bed or home (Pl. EBT at 48), and he lost no time from work as a taxi driver immediately following the accident (id. at 12). This establishes that Plaintiff has no viable "90/180 day" injury claim (see Merrick v. Lopez-Garcia, 100 A.D.3d 456, 457 [1st Dept. 2012]; Gjoleka v. Caban, 188 A.D.3d 458, 459 [1st Dept. 2020]). Finally, Plaintiff only pleaded in conclusory fashion that he sustained a "significant disfigurement" therefore that claim is also dismissed.

Accordingly, it is hereby

ORDERED, that Defendants' motion for summary judgment is granted, and Plaintiff s complaint is dismissed, and it is further, ORDERED, that the Clerk of this Court is hereby directed to enter judgment accordingly.

This constitutes the Decision and Order of this Court.