Opinion
Index No. 709103/2018 Motion Seq . No. 003
04-29-2021
KIM HEERALAL, Plaintiff, v. RONITA NANDALALL and SEETA NANDALALL, Defendants.
Unpublished Opinion
Mot ion Date: 3/1/2021
PRESENT: DONNA-MARIE E. GOLIA, J.S.C.
DECISION & ORDER
DONNA-MARIE E. GOLIA, JUDGE
The following electronically filed documents numbered EF40 to EF65, EF67 to EF75 and EF76 to EF77 read on this motion by defendants for summary judgment pursuant to New York Civil Practice Law and Rules ("CPLR") § 3212:
Papers Numbered
Notice of Motion, Affirmation and Exhibits........
EF40 - EF65
Affirmation in Opposition, Exhibits and Affidavit of Service......
EF67 - EF75
Affirmation in Reply and Affidavit in Reply......
EF76- EF77
Defendants Ronita Nandalall and Seeta Nandalall ("defendants") move, pursuant to § CPLR 3212, for summary judgment dismissing the complaint on the ground that plaintiff failed to sustain a "serious injury" under New York Insurance Law ("NYIL") § 5102(d). Plaintiff Kim Heeralal ("plaintiff”) opposes the motion. Upon the papers submitted, defendants' motion is granted.
Plaintiff commenced this action for personal injuries she sustained as a result of an alleged motor vehicle accident that occurred on March 16, 2018 on 107th Avenue at its intersection with 110th Street in Queens, New York. Plaintiff alleges injuries to her cervical, thoracic and lumbar spine for which she underwent a discectomy, anterior lumbar interbody decompression and fusion with insertion of an implant at L5-S1. Plaintiff also claims injuries to her left wrist, left elbow and bilateral eyes.
In her bills of particulars, plaintiff avers that she satisfies the following serious injury categories under NYIL § 5102(d): 1) significant disfigurement, 2) permanent loss of use of a body organ, member, function or system, 3) permanent consequential limitation of use of a body organ or member and 4) a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the alleged accident ("90/180 category").
In their motion, defendants argue that plaintiff has failed to submit evidence to establish that she has sustained a serious injury under NYIL § 5102(d). Specifically, defendants contend that plaintiffs allegations that she sustained "scarring," sprains/strains in her cervical thoracic and lumbar spine, bulging and herniated discs, left elbow ligament tear and left wrist cartilage tear are insufficient to qualify as a "serious injury" pursuant to the statute.
Alternatively, defendants argue that plaintiff should not recover under NYIL § 5102(d) for injuries to her cervical and lumbar spine and eyes because she suffered from pre-existing conditions to these parts of her body. In particular, defendants aver that plaintiff has a history of neck and back complaints throughout her care with her primary care physician and plaintiff's Long Island Ophthalmic Consultants' records show that she suffered from bilateral vision loss and deficiencies prior to the date of the alleged accident.
In opposition, plaintiff argues that she sustained a serious injury under NYIL § 5102(d) and claims for the first time that she sustained a significant limitation of use of a body function or system or a medically determined injury. In support of her opposition, plaintiff annexes the medical records from her no-fault independent medical examination ("IME"), NY Med, Stand-Up MRI of East Elmhurst, P.C. ("Stand-Up MRI") and New York Spine Specialist. Plaintiff asserts that a recent qualitative and quantitative examination show that her cervical and lumbar spine limitations are more than mild, minor or slight and that she still experiences range-of-motion deficits nearly two years after the alleged accident. Plaintiff also argues that while her primary care records show that she presented with back pain prior to the subject accident, defendants' examining orthopedist stated that there is a causal relationship between her claimed injuries and the alleged accident. Similarly, plaintiff avers that her bilateral-eye condition worsened post-accident.
Additionally, plaintiff asserts that she was confined to her bed for over five months and to her home for eight months following the alleged accident. Plaintiff further notes that she still experiences neck pain when she sleeps, difficulty in lifting heavy items with her left wrist and difficulty and pain in her neck when attempting to turn in any direction while performing menial activities like sitting or driving.
Finally, plaintiff argues that defendants' motion should be denied because defendants failed to comply with the Part Rules as to numbering the pages in their motion.
In reply, defendants argue that plaintiff failed to establish that her injuries are permanent or that she suffered a significant limitation to the use of her cervical, thoracic or lumbar spine, left elbow, left wrist or bilateral eyes. Defendants also assert that plaintiff failed to establish a causal connection between the injuries to her spine and eyes and the alleged accident as her medical records show that she had pre-existing conditions to these parts of her body. Defendants further contend that plaintiffs testimony and medical records show that she was not prevented from doing substantially all of her ordinary activities due to the alleged accident and that she does not submit any evidence to support her claim that she was confined to her bed and home for five and eight months, respectively, following the alleged accident.
Finally, as to the allegation of not adhering to the Part Rules, defendants argue in essence that there was a change in the assigned justice and therefore, plaintiffs argument lacks merit.
DISCUSSION
As a preliminary procedural matter, defendants' failure to number the pages in their moving papers is a minor omission and not a fatal defect (see, e.g., Sensible Choice Contracting, LLC v Rodgers, 164 A.D.3d 705, 707 [2d Dept 2018]; CPLR § 2001).
Substantively, as a threshold matter in personal injury actions involving an automobile accident, a plaintiff is "required to plead and prove that he or she sustained a 'serious injury' as defined in the No-Fault Law'' (Zecca v Riccardelli, 293 A.D.2d 31, 33 [2d Dept 2002] citing Licari v Elliott, 57 N.Y.2d 230, 236 [1982]; CPLR § 5102(d)).
Under NYIL § 5102(d), a "serious injury'' is defined as one which results in, inter alia, significant disfigurement, 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" (see, Oberly v Bangs Ambulance Inc., 96 N.Y.2d 295, 298 [2d Dept 2001]).
As the" legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries,"' courts "have required objective proof of a plaintiffs injury in order to satisfy the statutory serious injury threshold" (Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350 [2002] [citations omitted]). Therefore, a "defendant has the initial burden of making a prima facie showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)" (Akhtar v Santos, 57 A.D.3d 593 [2d Dept 2008]; Farozes v Kamran, 22 A.D.3d 458, 458 [2d Dept 2005]). In doing so, where a defendant "relies solely on findings of the defendant's own medical witnesses, those findings must be in admissible form, i.e., affidavits or affirmations, and not unsworn reports, in order to make a 'prima facie showing of entitlement to judgment as a matter of law'" (Pagano v Kingsbury, 182 A.D.2d 268, 270 [2d Dept 1992] [citation omitted]).
Once defendant has made a prima facie showing, the burden shifts to "the plaintiff to come forward with sufficient evidence that [he or] she sustained a serious injury" (Lisa v Pastor, 262 A.D.2d 368 [2d Dept 1999]). Similarly, "a plaintiffs opposition, to the extent that it relies solely on the findings of the plaintiffs own medical witnesses, must be in the form of affidavits or affirmations, unless an acceptable excuse for failure to comply with this requirement is furnished" (Pagano, 182 A.D.2d at 270, supra).
I. Disfigurement
Defendants argue that plaintiff has not produced any evidence of scarring to any part of her body that is causally related to the alleged accident to qualify as a serious injury under the category of "significant disfigurement."
Under NYIL § 5102(d), a significant disfigurement is established where a plaintiff has suffered an injury that "a reasonable person" would regard as "unattractive, objectionable, or as the object of pity and scorn" (Maldonado v Piccirilli, 70 A.D.3d 785, 786 [2d Dept 2010]). Here, defendants have established, prima facie, that there is no evidence of any scarring to plaintiffs body that is casually related to the alleged accident sufficient to qualify as a significant disfigurement under NYIL § 5102(d).
In opposition, plaintiff has not proffered any evidence to show that she sustained any scarring or other condition to support her claim that she sustained a significant disfigurement as a result of the alleged accident (see, Def. Exh. B; Mnatcakanova v Elliot, 174 A.D.3d 798, 799 [2d Dept 2019]; Lisa, 262 A.D.2d at 368-69, supra). Indeed, as plaintiff failed to raise any argument in opposition to this branch of defendants' motion, the branch of defendants' motion seeking summary judgment dismissing plaintiffs claim of a significant disfigurement under NYIL § 5102(d) is granted (see, Lynch v Iqbal, 56 A.D.3d 621, 622 [2d Dept 2008]; Sirmans v Mannah, 300 A.D.2d 465, 466 [2d Dept 2002]).
II. Permanent Loss of Use of Body Organ, Member, Function or System
Defendants argue that plaintiff has not suffered a permanent loss of any body part, member or system as a result of the alleged accident to qualify as a serious injury under NYIL § 5102(d).
To qualify as a serious injury under the permanent loss category of NYIL § 5102(d), a plaintiff must submit evidence to establish "a total loss of use" of the injured body part (Oberly, 96 N.Y.2d at 296, supra; Nesci v Romanelli, 74 A.D.3d 765, 766 [2d Dept 2010]; Albury v O'Reilly, 70 A.D.3d 612 [2d Dept 2010]). Here, defendants have established, prima facie, that plaintiff did not suffer a permanent loss of any part of her body. For instance, as defendants point out, plaintiff testified that she is capable of sitting, standing, walking and completing her daily routine with little difficulty following the alleged accident (see, Def. Exh. F).
In opposition, plaintiff has not submitted any evidence to establish a "total loss of use" of any part of her body to rebut defendants' prima facie showing (see, id.; Nesci. 74 A.D.3d at 766-67, supra; Amato v Fast Repair Inc., 42 A.D.3d 477, 477 [2d Dept 2007]; Crespo v Kramer, 295 A.D.2d 467, 468 [2d Dept 2002]). Indeed, as plaintiff failed to raise any argument in opposition to this branch of defendants' motion, the branch of defendants' motion seeking summary judgment dismissing plaintiffs claim of permanent loss of a body part, member or system under NYIL § 5102(d) is granted (see, id,).
III. Permanent Consequential Limitation of Use of a Body Organ or Member
Defendants argue that plaintiffs injuries do not qualify under the category of permanent consequential limitation of use of a body organ or member as plaintiff did not suffer from a permanent limitation of her bilateral eyes, left elbow, left wrist or cervical, thoracic or lumbar spine.
To establish a serious injury under the permanent consequential limitation category of NYIL § 5102(d), plaintiffs medical evidence "must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiffs present limitations to the normal function, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 A.D.3d 1027, 1029 [3d Dept 2003] citing Toure, 98 N.Y.2d at 353, supra). Therefore, a defendant is entitled to summary judgment where "plaintiffs evidence is limited to conclusory assertions tailored to meet statutory requirements" (Lopez v Senatore, 65 N.Y.2d 1017, 1019 [1985]; see also, Kivelowitz v Calia, 43 A.D.3d 1111 [2d Dept 2007]; Smith v Askew, 264 A.D.2d 834, 834 [2d Dept 1999]).
Here, defendants have made a prima facie showing of entitlement to summary judgment with regards to her bilateral-eye injuries under the permanent consequential limitation category of NYIL § 5102(d). Indeed, defendants submit the affirmed medical report of their examining ophthalmologist, Dr. Harvey Rosenblum ("Dr. Rosenblum"), who examined plaintiff on August 13, 2019 and found no apparent "loss of vision or visual disability as a result of this accident" (see, Def. Exh. I).
In response, plaintiff failed to raise a triable issue of fact. Indeed, plaintiff states in a conclusory manner that the "issues with her eyes" became "significantly worse postaccident" without offering a physician's affirmation or affidavit, a recent ophthalmology examination or any other evidence to demonstrate that the alleged injuries to her eyes were caused or "worsened" by the subject accident (see, Lisa, 262 A.D.2d at 368, supra; Pagano, 182 A.D.2d at 270, supra; Besso v DeMaggio, 56 A.D.3d 596, 597 [2d Dept 2008]; Ali v Mirshah, 41 A.D.3d 748, 749 [2d Dept 2007]; Mejia v DeRose, 35 A.D.3d 407, 407 [2d Dept 2006]; Kivelowitz, 43 A.D.3d at 1111, supra). At most, while plaintiff enumerates her treatment with Dr. Gerard D'Aversa ("Dr. D'Aversa") at Ophthalmic Consultants of Long Island, there is no evidence in Dr. D'Aversa's medical records to show that the conditions for which he treated plaintiff were in any way related to or caused by the alleged accident (Freese v Maffetone, 302 A.D.2d 490, 491 [2d Dept 2003]; Williams v Hasenflue, 272 A.D.2d 470, 470 [2d Dept 2000]). Accordingly, the branch of defendants' motion for summary judgment dismissing plaintiffs claim of a bilateral-eye injury under the permanent consequential limitation category of NYIL § 5102(d) is granted.
Defendants have also made a prima facie showing of entitlement to summary judgment with regard to plaintiffs cervical and thoracic spine, left elbow and left wrist under the permanent consequential limitation category of NYIL § 5102(d). Indeed, defendants' examining orthopedist, Dr. Edward Toriello ("Dr. Toriello"), who examined plaintiff on October 15, 2019, found no limitations or deficits with plaintiffs thoracic spine, left shoulder, left elbow or left wrist (see, Def. Exh. H; Sukalic v Ozone, 136 A.D.3d 1018, 1018 [2d Dept 2016]). Rather, Dr. Toriello determined that plaintiffs left wrist sprain and left elbow contusion were resolved and that plaintiff "revealed no objective evidence of disability" (see, id.; Staff v Yshua, 59 A.D.3d 614 [2d Dept 2009]).
Moreover, while Dr. Toriello found deficits with plaintiffs cervical spine, he opined that based on his examination and review of plaintiffs medical records, there was "evidence of a resolved cervical strain" (see, id.; Cole v Brandofino, 280 A.D.2d 446, 447 [2d Dept 2001], Hayden v Plotkin, 278 A.D.2d 455, 455 [2d Dept 2000]). Furthermore, upon reviewing plaintiffs imaging studies, radiology reports and other medical records, Dr. Scott B. Berger ("Dr. Berger"), a neuroradiologist who opined as to plaintiffs neuroimaging studies on behalf of defendants, concluded that plaintiffs cervical disc protrusions are "likely greater than 5 years of age and could not be related to the alleged accident" (see, Def. Exh. L; Pommells v Perez, 4 N.Y.3d 566, 579 [2005]; Khan v Finchler, 33 A.D.3d 966, 966-67 [2d Dept 2006]).
In opposition, plaintiff failed to raise a triable issue of fact. Indeed, plaintiff failed to proffer a physician's affirmation or affidavit, a recent medical examination or any other evidence to demonstrate that she sustained a permanent consequential limitation to her cervical and thoracic spine, left elbow or left wrist as a result of the alleged accident (see, Lisa, 262 A.D.2d at 368, supra; Pagano, 182 A.D.2d at 270, supra; Besso, 56 A.D.3d at 597, supra; Kivelowitz, 43 A.D.3d at 1111, supra). Rather, plaintiffs submission of the medical records from Dr. Anthony Spataro ("Dr. Spataro"), who performed an orthopedic IME on July 16, 2018, more than two years prior to defendants' motion for summary judgment, is insufficient to raise a triable issue of fact as to whether plaintiff sustained a serious injury under NYIL § 5102(d) since his conclusions were not based on a recent examination of plaintiff (see, Deutsch v Tenempaguay, 48 A.D.3d 614, 615 [2d Dept 2008]; Ali, 41 A.D.3d at 749, supra; Mejia, 35 A.D.3d at 407, supra; PI. Exh. D). Similarly, plaintiffs Stand-Up MRI records dated May 2, 2018, NY Med records from March 27, 2018 to June 6, 2018, and New York Spine Specialist records from June 7, 2018 to January 23, 2019 are insufficient to raise a triable issue of fact as they are not "contemporaneous with the subject accident" showing limitations or diminished range of motion to plaintiffs left elbow, left wrist and cervical and thoracic spine (see, Gould v Ombrellino, 57 A.D.3d 608, 609 [2d Dept 2008]; D'Onofrio v Floton, Inc., 45 A.D.3d 525, 525 [2d Dept 2007]; PI. Exh. B, C, F).
Significantly, plaintiff fails to present any evidence to counter Dr. Toriello's opinion that her cervical spine injury had resolved or Dr. Berger's conclusion that her cervical disc protrusions pre-date the alleged accident and could not be related to the same (see, Pommells, 4 N.Y.3d at 580, supra; Khan, 33 A.D.3d at 966-67, supra). Accordingly, as plaintiff has failed to provide competent medical evidence to rebut defendants' prima facie showing, the branch of defendants' motion for summary judgment dismissing plaintiffs claim of a permanent consequential limitation to her cervical and thoracic spine, left elbow and left wrist is granted (see, Deutsch, 48 A.D.3d at 615, supra; Mejia, 35 A.D.3d at 408, supra).
Additionally, defendants have made a prima facie showing of entitlement to summary judgment with regards to plaintiffs lumbar spine injury under the permanent consequential limitation category of NYIL § 5102(d). Indeed, the affirmed medical report Dr. Saran Rosner ("Dr. Rosner"), defendants' neurologist who examined plaintiff on January 9, 2020, found that plaintiff's lumbar symptoms began eight months prior to the alleged accident and that plaintiff's complaints of lower back pain were "qualitatively unchanged from her symptoms, which preceded the March 16, 2018 accident" (see, Def. Exh. M). Significantly, Dr. Rosner determined that the findings which were described on plaintiffs MRI of the lumbar spine, which was performed prior to the alleged accident, "comported with those which were given after the [alleged] accident" and that plaintiffs lumbar sprain with radiculitis following the alleged accident "occurred in the setting of preexisting degenerative disease of the lumber spine at the L5-S1 level" (see, id.; see, Pommells, 4 N.Y.3d at 580, supra; Khan, 33 A.D.3d at 966-67, supra). Similarly, Dr. Berger opined that plaintiffs "lumbar MRI is identical to an MRI taken prior to the accident" which confirm that "the L5-S1 disc abnormality could not be causally or temporally related to the accident" and that plaintiffs lumbar disc protrusions are "likely greater than 5 years of age and could not be related to the alleged accident" (see, id.; Def. Exh. L).
In opposition, plaintiff failed to raise a triable issue of fact. Indeed, plaintiff failed to proffer a physician's affirmation or affidavit, a recent examination or any other evidence to demonstrate that she sustained a permanent consequential limitation to her lumbar spine as a result of the alleged accident (see, Lisa, 262 A.D.2d at 368, supra; Pagano, 182 A.D.2d at 270, supra; Besso, 56 A.D.3d at 597, supra; Kivelowitz, 43 A.D.3d at 1111, supra). Without a physician's affirmation or affidavit or a recent medical examination demonstrating that plaintiff has a permanent consequential limitation to the lumbar spine and that such injury is causally related to the alleged accident, plaintiff cannot rebut defendants' showing that her lumbar injuries were pre-existing and degenerative in nature (see, Def. Exh. M; Deutsch, 48 A.D.3d at 615, supra; Ali, 41 A.D.3d at 749, supra). In that regard, plaintiffs July 16, 2018 orthopedic IME and prior medical records are insufficient to demonstrate a permanent consequential limitation to her lumbar spine since these records are not based on a recent examination of plaintiff (see, idj. Accordingly, as plaintiff has failed to provide competent medical evidence to rebut defendants' prima facie showing, the branch of defendants' motion for summary judgment dismissing plaintiffs claim of a permanent consequential limitation to her lumbar spine is granted (see, Deutsch, 48 A.D.3d at 615, supra; Mejia, 35 A.D.3d at 408, supra).
IV. Significant Limitation of Use of a Body Function or System
Defendants argue that plaintiff's injuries do not qualify as a serious injury under the significant limitation of use of a body function or system category of NYIL § 5102(d) as plaintiffs alleged injuries resulted in only a minor limitation of use.
Here, plaintiff impermissibly raises for the first time in opposition to defendants' motion for summary judgment a new serious injury claim. Indeed, plaintiff never pleaded that she sustained a serious injury under the significant limitation category of NYIL § 5102(d) in her complaint or bills of particulars (see, Def. Exh. A, B; Bacalan v St. Vincents Cath. Med. Centers of New York, 179 A.D.3d 989, 992 [2d Dept 2020]; Anonymous v Gleason, 175 A.D.3d 614, 617 [2d Dept 2019]; Christopher V. ex rel, Wanda R. v James A. Leasing, Inc., 115 A.D.3d 462 [1st Dept 2014]). Accordingly, the branch of defendants' motion for summary judgment dismissing plaintiff's claim under the significant limitation category of NYIL § 5102(d) is granted.
V. 90/180 Category
Defendants argue that plaintiff did not sustain a medically determined injury or impairment that prevented her from performing substantially all of the material acts constituting her customary daily activities during at least 90 of the first 180 days following the alleged accident.
To establish a serious injury under the 90/180 category of NYIL § 5102(d), a "plaintiff must establish that he or she 'has been curtailed from performing his [or her] usual activities to a great extent'" rather than "some slight curtailment" (Lanzarone v Goldman, 80 A.D.3d 667, 669 [2d Dept 2011]; DeFilippo v White, 101 A.D.2d 801, 803 [2d Dept 1984]).
Here, defendants have established, prima facie, that plaintiff did not suffer a serious injury under the 90/180 category of NYIL § 5102(d). Indeed, as defendants correctly point out, plaintiff testified that she is capable of sitting, standing, walking and completing her daily routine with little difficulty following the alleged accident (see, Def. Exh. F). Plaintiff also testified that her "elbow is fine" but that she experiences neck pain when she sleeps and when she attempts to turn in any direction (see, id.). However, plaintiffs subjective complaints of pain alone without more is insufficient to establish that her claimed injuries qualify as a serious injury under the 90/80 category of NYIL § 5102(d) (see, Lanzarone, 80 A.D.3d at 669, supra; Hemsley v Ventura, 50 A.D.3d 1097, 1098 [2d Dept 2008]; Popp v Kremer, 124 A.D.2d 720, 721 [2d Dept 1986]). By contrast, however, Dr. Toriello, who examined plaintiff on October 15, 2019, opined that plaintiff "is able to return to work and normal daily living activities without restriction" (see, Def. Exh. H).
In opposition, plaintiff failed to establish that she has been curtailed from performing her usual activities to a "great extent" (see, id.). Indeed, plaintiff failed to proffer any evidence in the form of a physician's affirmation or affidavit or a recent medical examination to rebut Dr. Toriello's opinion or defendants' showing that she is capable of performing her daily routine without restriction (see, Def. Exh. F, H). Moreover, while plaintiff claims that she was confined to her bed for approximately five months and to her home for eight months following the alleged accident, she does not provide any evidence to support her claim (see, Hemsley, 50 A.D.3d at 1098, supra; Taylor v Jerusalem Air, Inc., 280 A.D.2d 466, 467 [2d Dept 2001]; Sainte-Aime v Ho, 274 A.D.2d 569, 570 [2d Dept 2000]). In that regard, plaintiffs self-serving statement alone is insufficient to show that she sustained a serious injury within the meaning of the 90/180 category of NYIL § 5102(d) (see, Estrella v Marano, 255 A.D.2d 358, 358 [2d Dept 1998]). Accordingly, as plaintiff has failed to provide competent medical evidence to rebut defendants' prima facie showing, the branch of defendants' motion for summary judgment dismissing plaintiffs claim of a serious under the 90/180 category of NYIL § 5102(d) is granted (see, Deutsch, 48 A.D.3d at 615, supra; Tabacco v Kasten, 229 A.D.2d 526, 526 [2d Dept 1996]).
In sum, defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff failed to sustain a serious injury under NYIL § 5102(d) is granted in its entirety. The Clerk of the Court is directed to enter judgment dismissing the complaint.
This constitutes the Decision and Order of the Court.