Opinion
Index No. 30290/2018E
12-31-2019
JULIA HANNIFORD, Plaintiff. v. RAMON CARRASCO and JOHN DOE. Defendants.
Unpublished Opinion
The following papers in the NYSCEF System were read on this motion for SUMMARY JUDGMENT (DEFENDANT) , noticed on November 8, 2019 and duly submitted as No. 49 on the Motion Calendar of December 20, 2019
| NYSCEF Doc. Nos. | |
| Notice of Motion - Exhibits and Affidavits Annexed 11-21 | |
| Notice of Cross-Motion - Exhibits and Affidavits Annexed | |
| Answering Affidavit and Exhibits | 23-29 |
| Replying Affidavit and Exhibits | |
| Filed Papers | |
| Memoranda of Law | |
| Stipulations |
Upon the foregoing papers, defendant's motion for summary judgment on the ground that plaintiff did not sustain a "serious injury" in the subject March 10. 2018 motor vehicle accident is granted in part, in accordance with the annexed decision and order.
DECISION AND ORDER
JOHN R. HIGGITT, A.S.J.
Upon defendant's September 27. 2019 notice of motion and the affirmation and exhibits submitted in support thereof; plaintiffs December 9, 2019 affirmation in opposition and the exhibits submitted therewith; and due deliberation; defendant's motion for summary judgment on the ground that plaintiff did not sustain a "serious injury" in the subject March 10. 2018 motor vehicle accident is granted in part.
Plaintiff claims injuries to her left shoulder, left ankle and the cervical and lumbar aspects of her spine, and alleges "serious injury" under the Insurance Law § 5102(d) categories of fracture, permanent loss of us. permanent consequential limitation, significant limitation and 90/180-day injury (see CPLR 3043[a][6]).
In support of the motion, defendant submits the affirmed reports of orthopedic surgeon Dr. Ferriter and radiologists Drs. Fitzpatrick and Springer, and the transcript of plaintiff s July 17. 2019 deposition testimony.
Dr. Ferriter examined plaintiff on August 19. 2019. approximately a year and a half after the accident. Dr. Ferriter measured full ranges of motion in all tested planes of movement of plaintiffs left shoulder, left ankle, and cervical and lumbar spine, without tenderness or spasm, and all objective provocative testing, including straight-leg raising, yielded negative results. Dr. Ferriter found that plaintiff had sustained resolved cervical, lumbar and shoulder sprain/strain and was status post healed ankle surgery. He concluded that there was no orthopedic disability or permanent residuals.
Dr. Fitzpatrick reviewed the films from the May 25, 2018 MRI of plaintiff s left ankle, finding that they depicted an unremarkable study without evidence of traumatic injury. Dr. Fitzpatrick also reviewed the films from the May 14. 2018 MRI of plaintiffs cervical spine, finding that they depicted degenerative disease, without evidence of traumatic injury.
Dr. Springer reviewed the films from the March 30. 2018 MRI of plaintiff s left shoulder, finding that they depicted degeneration typical of arthritis, non-traumatic developmental variants, degenerative non-traumatic spurs and cysts, and chronic tendinosis.
Defendant's proof was sufficient to meet his prima facie burden of demonstrating that plaintiff did not sustain a permanent consequential or significant limitation (see Hamilton v Marom, 2019 NY Slip Op 08615 [1st Dept 2019]; Cano v U-Haul Co. of Ariz., 2019 NY Slip Op 08603 [1st Dept 2019]). Furthermore, with respect to plaintiffs cervical spine and left shoulder, defendant's proof was sufficient to demonstrate a lack of causal connection between the accident and the claimed injuries (see Massillon v Regalado, 176 A.D.3d 600 [1st Dept 2019): Blake v Cadet, 175 A.D.3d 1199 [1st Dept 2019]; Pouchie v Pichardo, 173 A.D.3d 643 [1st Dept 2019]).
In opposition, plaintiff submitted the affirmation and records of podiatric surgeon Dr. Yager, who performed arthroscopy on June 22. 2018; the affirmation of Dr. Villafuerte and the records of Physical Medicine and Rehabilitation of New York (PMR); and the affirmed report of orthopedic surgeon and no-fault examiner Dr. Miller.
Dr. Yager initially examined plaintiff s ankle function on June 12. 2018. He opined that, based upon his examinations of plaintiff, review of the MRI report and observations during surgery, plaintiffs ankle injuries were caused by the accident. Dr. Miller examined plaintiff on June 27, 2019. finding reduced ranges of motion and reduced sensation in plaintiff s ankle. requiring further treatment (the remainder of the examination was normal). This proof was sufficient to raise an issue of fact as to whether plaintiff sustained a permanent consequential or significant limitation of use of her ankle (see Jenkins v Livo Car Inc., 176 A.D.3d 568 [1st Dept 2019]).
Furthermore, medical professionals at PMR assessed plaintiff s cervical, lumbar and shoulder function on 14 occasions from March 15. 2018 to October 9. 2019, finding reduced ranges of motion on each occasion. Dr. Villafuerte opined that, based upon the examinations and plaintiff s history, the MR1 reports demonstrated injuries resulting in the limitations found, and plaintiffs injuries were related to the subject accident. This was sufficient to raise an issue of fact as to whether plaintiff s injuries were caused by the accident and whether plaintiffs resulting limitations are consequential or significant (see Riollano v Leavey, 173 A.D.3d 494 [1st Dept 2019]).
With respect to plaintiff s 90/180-day injury claim, plaintiffs allegations in her bill of particulars that she was confined to bed for five weeks and to home for eight weeks defeats the claim (see Tejada v LKQ Hunts Point Parts, 166 A.D.3d 436 [1st Dept 2018]), as does plaintiff s testimony that, while she was out of work as a nanny for approximately seven months following the accident, she was never confined to bed (see Ortiz v Boamah, 169 A.D.3d 486 11 st Dept 2019]). In opposition, plaintiff failed to raise an issue of fact (see Barry v Arias, 94 A.D.3d 499 [1st Dept 2012]). That plaintiff missed more than 90 days from work is not determinative (see Amamedi v Archibald, 70 A.D.3d 449, 450 [1st Dept 2010]; Reyes v Se Park. 127 A.D.3d 459 [1st Dept 2015]). and it is apparent that she informed her doctors that she returned to work in some capacity shortly following the accident. A reduced or changed work schedule is also insufficient to raise an issue of fact (see Colon v Tavares, 60 A.D.3d 419 [1st Dept 2009]). Drs. Villafuerte's and Yager's bare recitations that plaintiff s injuries prevented her from performing substantially all of her usual and customary daily activities were insufficient (see Browne v Covington, 82 A.D.3d 406 [1st Dept 2011]; Dieujuste v Kiss Mgt. Corp.. 60 A.D.3d 514 11st Dept 2009]).
It is obvious that plaintiff did not sustain a permanent loss of use. Such loss must be total (see Oberly v Bangs Ambulance Inc.. 96 N.Y.2d 295 [2001]), and evidence of mere limitations of use are insufficient (see Byong Yol Yi v Canela, 70 A.D.3d 584 11st Dept 2010]).
It is apparent that plaintiff did not sustain a fracture in the subject accident. Plaintiff s medical records are devoid of mention of a fracture or treatment for same (see e.g. Brackenbury v Franklin, 93 A.D.3d 423 [1st Dept 2012]; O 'Bradovich v Mrijaj, 35 A.D.3d 274 [1st Dept 2006]; cf. Seidel v Rabassa, 170 A.D.3d 430 [ 1 st Dept 2019]). In any event, plaintiff abandoned the fracture claim in opposition (see Kuehne & Nagel, Inc. v Baiden, 36 N.Y.2d 539 [1975]; Henry v Carr. 161 A.D.3d 424 [1st Dept 2018]), and the "serious injury" claims based on that category are therefore dismissed (see Ng v NYU Langone Med. Ctr., 157 A.D.3d 549 [1st Dept 2018]).
Accordingly, it is
ORDERED, that the aspects of defendant's motion for summary judgment dismissing plaintiff s claims of "serious injury" under the Insurance Law § 5102(d) categories of fracture, permanent loss of use and 90/180-day injury are granted, and those claims are dismissed; and it is further
ORDERED, that defendant's motion is otherwise denied. The parties are reminded of the February 3, 2020 pre-trial conference before the undersigned.
This constitutes the decision and order of the court.