Opinion
Index No. 31468/2017E
08-08-2019
MOHAMADI ILBOUDO, Plaintiff, v. RIGO LIMO-AUTO, CORP., RIGO-FL1 LLC and "JOHN DOE," name being fictitious, unknown and meant to represent the driver of the vehicle, Defendants.
Unpublished Opinion
DECISION AND ORDER
Mary Ann Brigantti, Judge
Upon the foregoing papers, the defendants move for summary judgment dismissing the complaint of plaintiff for his failure to satisfy the "serious injury" threshold as defined by New York Insurance Law § 5102(d). Plaintiff cross-moves for summary judgment on the issue of "serious injury" on the basis that he sustained a "fracture."
"[A] defendant moving for summary judgment on the issue of whether the plaintiff sustained a serious injury has the initial burden of presenting competent evidence establishing that the injuries do not meet the threshold" (Linton v Nawaz, 62 A.D.3d 434, 438 [1st Dept 2009], affd 14 N.Y.3d 821 [2010]). "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 2011]). Once the defendant's initial threshold is met, the burden shifts to the plaintiff to raise a material issue of fact using objective, admissible medical proof (see Franchini v Plameri, 1 N.Y.3d 536 [2003]; Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 350 [2002]). If the defendant fails to meet his or her prima facie burden, the burden does not shift to plaintiff and the motion for summary judgment can be denied without the need to consider plaintiffs showing in opposition (see Karounos v Doulalas, 153 A.D.3d 1166, 1167 [1st Dept 2017]).
In this case, plaintiff bicyclist alleges injuries to his knees and lumbar spine as a result of the subject November 16, 2016 motor vehicle accident. Plaintiff alleges serious injuries under the categories of significant disfigurement, fracture, permanent loss of use, permanent consequential limitation, significant limitation and a 90/180-day injury.
Defendants submitted the affirmed report of emergency medicine specialist, Rikki Lane, M.D., orthopedic surgeon, Ronald L. Mann, M.D., neurologist Michael J. Carciente, M.D. and radiologist, Jessica F. Berkowitz. Defendants also relied on certified medical records from Mount Sinai Beth Israel ("Beth Israel") and plaintiffs testimony from his June 4, 2018 examination before trial.
Plaintiff submitted his affidavit dated December 4, 2018, a certified police accident report, the sworn reports of radiologist, Steve B. Losik, the affirmation and certified records of treating physician, Yvette Abraham, M.D., and the affirmation and certified records of orthopedic surgeon, Mark Kramer, M.D.
Defendants argue that following a course of treatment of approximately one and a half years, plaintiff stopped treatment. However, in a final narrative report dated December 30, 2017, Dr. Abraham found that plaintiff had sustained permanent and significant losses of function and use of his knees and lumbar spine, that plaintiff had achieved maximum medical benefit and that further treatment would be palliative. At that time, plaintiff was discharged from formal treatment with instructions to continue at home exercises. Thus, having offered an explanation for his cessation of treatment, the claimed gap in treatment is not dispositive (see Ortiz v Boamah, 169 A.D.3d 486, 489 [1st Dept 2019]).
LEFT KNEE FRACTURE AND TEAR
Plaintiff alleged a left knee fractured patella as a result of the subject accident. "A fracture constitutes a 'serious injury' under Insurance Law § 5102(d)" (Perez-Hernandez v M. Marte Auto Corp., 104 A.D.3d 489, 490 [ 1st Dept 2013]; see Joyce v Lacerra, 41 A.D.3d 236, 237 [1st Dept 2007]).
Defendants' expert Dr. Lane reviewed the verified bill of particulars, police accident report of November 16, 2016, prehospital care report summary and emergency department records from Beth Israel. Dr. Lane points out that plaintiff presented to Beth Israel on November 16, 2016 with complaints of left knee pain. The examination was normal except for left knee laxity, and valgus and varus stress with minimal edema; and no erythema, lacerations or abrasions. No radiological studies were performed. Plaintiff was discharged with a diagnosis of left knee pain. He was prescribed a knee immobilizer, crutches, anti-inflammatory pain medication and referred to an orthopedist. The Beth Israel records also note a normal gait and that plaintiff was able to ambulate safely and independently without assistive device. Based upon his review of the records, Dr. Lane concluded that the claimed knee injuries alleged by the plaintiff are not supported by the emergency department records because there was minimal swelling and no erythema, indicating no major acute trauma. He further opined that had there been significant acute injuries to the knee, swelling ecchymosis, tenderness and decreased range of motion would have been present.
In addition, Dr. Berkowitz, who reviewed the films from the December 9, 2016 MRI of plaintiffs left knee, found no evidence of an acute traumatic injury to the left knee such as a fracture, traumatic bone marrow edema or meniscal or ligamentous tears. Dr. Berkowitz concluded that there was no causal relationship between the MRI findings and the subject accident.
Accordingly, defendants' evidence was sufficient to demonstrate prima facie that plaintiff did not sustain a left knee fracture (see Frias v Gonzalez-Vargas, 147 A.D.3d 500, 501 [1st Dept 2017]; Jackson v Delossantos-Diaz, 82 A.D.3d 489, 489 [1st Dept 2011]; see also Streety v Toure,___A.D.3d___, 2019 NY Slip Op 04487, *1 [2019] [conclusion of defendant's expert emergency medicine physician that the emergency room examination showed findings inconsistent with plaintiffs claimed injuries was sufficient to meet defendant's prima facie burden on the issue of causation]).
In opposition, plaintiff raised a triable issue of fact as to whether he sustained a left knee patella fracture as a result of the subject accident (see Seidel v Rabassa, 170 A.D.3d 430, 430-431 [1st Dept 2019]; Lavy v Zaman, 95 A.D.3d 585 [1st Dept 2012]). Dr. Abraham examined plaintiff on November 23, 2016, finding decreased range of motion of the left knee, evidence of tenderness, crepitus, effusion and joint line pain. Plaintiff commenced a course of physical therapy. On December 16, 2016, Dr. Kramer examined plaintiff, finding left knee tenderness and positive McMurray sign, with reduced strength. Dr. Kramer also notes that he reviewed a left knee X ray performed on October 10, 2016, that predated the subject accident, and that the results were normal. Dr. Kramer recommended left knee surgery, which he performed on June 12, 2017. During surgery Dr. Kramer found a flap fracture of the medial patella and removed the fractured portion and overlying cartilage. Both Drs. Kramer and Abraham opined that the left knee fracture was causally related to the subject accident.
The conflicting expert opinions as to the existence and cause of a left knee fracture precludes summary judgement on the serious injury category of "fracture" (see Seidel v Rabassa, 170 A.D.3d at 430-431; Bailey v Islam, 99 A.D.3d 633, 633 [1st Dept 2012]).
In addition to the above discussed left knee fracture, plaintiff alleges a tear of the lateral meniscus and synovitis in the left knee as a result of the subject accident.
Dr. Mann's August 2, 2018 examination of plaintiff s left knee revealed healed arthroscopic scars, mild tenderness upon palpation and range-of-motion restrictions in flexion. Dr. Mann includes in his report MRI and postoperative findings of a lateral meniscus tear. Dr. Mann diagnosed plaintiff with residual injuries to the left knee "due to the surgery and injury."
However, defendants' evidence is sufficient to meet their prima facie burden on the issue of causation. Dr. Lane noted that upon plaintiffs presentation to Beth Israel, plaintiffs medical history included a recent MRI and diagnosis of left knee medial meniscus tear. Dr. Lane opines that there was no significant acute injury to the left knee because there was minimal swelling and no erythema indicating no major acute trauma. He concluded that had there been significant acute injury to the knee swelling ecchymosis, tenderness and decreased range of motion would have been present. In addition, Dr. Berkowitz reviewed the films from the December 9, 2016 MRI of plaintiff s left knee, finding internal degeneration in the posterior horn of the medial meniscus, that the lateral meniscus was intact and no evidence of traumatic injury such as meniscal or ligamentous tears or traumatic bone marrow edema. Dr. Berkowitz concluded that there was no causal relationship between plaintiffs accident and the MRI findings.
In opposition, plaintiff avers that two weeks prior to the subject accident he had left knee pain due to his use of a bicycle as his primary source of transportation and for his job as a bicycle deliveryman. Plaintiff contends that he underwent an MRI and was advised that he had left knee problems "due to overuse." Plaintiff avers that he was prescribed medication and that the pain was gone at the time of the subject accident.
Plaintiff testified, contrary to his current averments, that prior to the subject accident he was never diagnosed with any problems in his knees or lower back, and never injured the claimed body parts.
Dr. Kramer examined plaintiff in December 2016 and diagnosed plaintiff with bilateral tenderness/meniscal tears and positive McMurray sign with reduced strength. Dr. Kramer performed left knee arthroscopy finding a tear of the posterior horn of the lateral meniscus and opining that plaintiff sustained aggravation of a medial meniscus tear. Dr. Kramer reviewed the films and report related to a November 2, 2016 MRI of plaintiffs left knee, predating the subject accident, that revealed a tear of the medial meniscus, medial patellar arthropathy and a distal quadriceps tendinopathy. Plaintiffs post-accident MRI revealed the previously diagnosed medial meniscus tear and a new anterior horn lateral meniscal tear. Dr. Kramer causally related plaintiffs left knee injuries, and aggravation of his prior injuries, to the subject accident.
Dr. Abraham treated plaintiff from November 23, 2016 to December 30, 2017 for complaints related to his left knee. Dr. Abraham concluded based upon her objective findings and review of plaintiffs studies and treatment records that plaintiff sustained injures to his left knee resulting in permanent and significant losses of function and use. Based upon plaintiffs presentation following the accident, his premorbid status and objective findings on physical examinations, Dr. Abraham concluded that plaintiffs left knee injuries were causally related to the subject accident. Accordingly, plaintiff has raised an issue of fact with respect to this body part.
LUMBAR SPINE
Plaintiff alleges "permanent consequential" and "significant" limitations of use of his lumbar spine, as a result of injuries including L3-L4 and L4-L5 disc bulges and radiculopathy at the L4 through SI levels.
Dr. Carciente reviewed plaintiffs records and performed a neurological examination on July 25,2018, finding plaintiffs examination completely normal, with no correlation between the reported disc bulges and his examination. Dr. Carciente found no myotomal weakness, dermatomal sensory deficits, asymmetric reflexes or atrophy that would support the presence of radiculopathy in the lumbar spine. Dr. Carciente further opined that disc bulges are not related to trauma and are commonly seen in completely asymptomatic and atraumatic individuals.
Additionally, Dr. Mann found range-of-motion limitations in the lumbar spine, based upon his August 2, 2018 examination. Dr. Mann, however, di not address these limitations, and concluded that plaintiffs lumbar spine injuries were resolved.
Nevertheless, Defendants met their prima facie burden of showing that plaintiff did not suffer a serious injury to his lumbar spine through expert evidence that such injuries were not causally related to the subject accident (see Vasquez v Almanzar, 107 A.D.3d 538, 539 [1st Dept 2013]; Prescod v O'Brien, 101 A.D.3d 421, 421 [1st Dept 2012]). In this regard, Dr. Berkowitz reviewed films from the December 21, 2016, MRI of plaintiffs lumbar spine. While Dr. Berkowitz found slight disc bulges and slight spondylosis, she concluded that these conditions were chronic and degenerative in origin. Dr. Berkowitz found no evidence of an acute traumatic injury and no causal relationship between the plaintiffs MRI findings and the subject accident (see Auquilla v Singh, 162 A.D.3d 463, 463 [1st Dept 2018]). Furthermore, Dr. Lane concluded that plaintiffs claimed lumbar spine injuries were inconsistent with plaintiffs presentation to Beth Israel (see Streety v Toure,___A.D.3d___, 2019 NY Slip Op 04487, *1 [2019]). Dr. Lane points out that when plaintiff presented to Beth Israel on November 16, 2016 he made no complaints of back pain. Plaintiffs examination was normal except for left knee pain and left finger lacerations. Plaintiffs examination was negative for back pain. Based upon his review of the records, Dr. Lane concluded that the back injuries alleged by the plaintiff are not supported by the emergency department records because had there been significant back injuries there would have been positive findings of difficulty ambulating, decreased range of motion, numbness, weakness or radiculopathy. Moreover, no specialist consultations or diagnostic studies were requested, as they were not clinically indicated.
In opposition, Dr. Abraham first treated plaintiff on November 23,2016 for back and bilateral knee pain. Dr. Abraham's initial examination revealed range of motion limitations and positive objective findings in the lower back, which Dr. Abraham deemed significant losses. Plaintiff underwent an EMG on January 3, 2017 revealing evidence of bilateral L4-L5 and L5-S1 radiculopathies and bilateral tibial motor neuropathy. As plaintiffs lumbar spine injuries were not responding to physical therapy, plaintiff underwent lumbar epidural steroid injection in January and February 2017. Dr. Abraham noted positive lumbar spine MRI findings of bulging discs with compression of the thecal sac and impingement of bilateral neural foramen. Dr. Abraham examined plaintiff on November 20, 2018 finding continuing significant restrictions in lumbar spine range of motion.
Based upon plaintiffs presentation following the accident, the absence of prior similar symptomatology and Dr. Abraham's objective findings during treatment, Dr. Abraham concluded that plaintiffs lumbar spine injuries were caused by the subject accident and permanent in nature. Accordingly, plaintiff submissions were sufficient to raise a triable issue of fact as to whether he sustained permanent consequential and significant limitations of use of his lumbar spine causally related to the subject accident (see Ortiz v Boamah, 169 A.D.3d at 488; McIntosh v Sisters Servants of Mary, 105 A.D.3d 672, 673 [1st Dept 2013]).
RIGHT KNEE
Dr. Mann's recent examination of plaintiff revealed insignificant right knee range-of-motion restrictions of 135 degrees out of a normal 150 degrees, and concluded that the right knee injury was resolved (see Sone v Qamar, 68 A.D.3d 566 [1st Dept 2009], and Style v. Joseph, 32 A.D.3d 212, 214 n [1st Dept 2006]). Moreover, defendants met their prima facie burden of showing that plaintiffs claimed right knee injury was not causally related to the subject accident (see Vasquez v Almanzar, 107 A.D.3d at 539; Prescod v O'Brien, 101 A.D.3d at 421). In this regard, Dr. Lane concluded that plaintiffs claimed injuries were inconsistent with plaintiffs presentation to Beth Israel (see Streety v Tome,___ A.D.3d___, 2019 NY Slip Op 04487, * 1 [2019]). Upon his plaintiff presented to Beth Israel on November 16, 2016 he made no complaints of right knee pain and no findings as to the right knee were made. Dr. Berkowitz additionally reviewed plaintiffs December 9, 2016 right knee MRI finding evidence of internal degeneration in the posterior horn of the medial meniscus, and no evidence of acute traumatic injury to the knee such as a fracture, traumatic bone marrow edema, meniscal or ligamentous tear (Auquilla v Singh, 162 A.D.3d at 463). Dr. Berkowitz concluded that there was no causal relationship between the subject accident and the right knee MRI findings.
In opposition, plaintiffs submissions were sufficient to raise a triable issue of fact as to causation and whether plaintiff sustained a "significant" limitation (see Prescod v O'Brien, 101 A.D.3d at 422; Vasquez v Almanzar, 107 A.D.3d 538, 539-540 [1st Dept 2013]). Dr. Losik's review of films from the December 9, 2016 MRI of plaintiff s right knee revealed tears of the medial meniscus and lateral meniscus; and anterior subcutaneous soft tissue swelling, edema and moderate joint effusion consistent with recent trauma. Dr. Abraham's initial 2016 examination of plaintiff s right knee revealed range-of-motion restrictions and joint line pain. Plaintiffs records demonstrate that plaintiff sustained ongoing restrictions of use of his right knee for several months despite treatment. Dr. Abraham causally related plaintiffs right knee injuries to the subject accident.
In addition, Dr. Kramer examined plaintiffs right knee on December 29, 2016, finding tenderness to the medial and lateral joint line and a positive McMurray sign. Dr. Kramer diagnosed plaintiff with a right knee meniscal tear and recommended a right knee arthroscopy and meniscectomy, pending Worker's Compensation board approval. Dr. Kramer examined plaintiff again on May 12, 2017 noting continuing right knee tenderness and positive McMurray sign and Apley's compression test. Dr. Kramer does not discuss any findings with regard to plaintiffs right knee upon his most recent October 31, 2018 examination of plaintiff.
As none of plaintiff s doctoi$ recently examined his right knee for range of motion limitation, plaintiff has failed to raise an issue of fact as to whether he sustained a "permanent consequential limitation" of injury (see Kone v Rodriguez, 107 A.D.3d 537, 538 [1st Dept 2013] [significance established with objective testing "a year and three months" following accident]; Vasquez v Almanzar, 107 A.D.3d 538, 540-541 [1st Dept 2013] ['"permanent consequential limitation' requires a greater degree of proof than a 'significant limitation'"]). Accordingly, plaintiff has only raised an issue of fact as to whether he sustained a "significant" limitation to his right knee as a result of this accident.
90/180-DAY INJURY
With respect to his 90/180-day claim, plaintiffs verified bill of particulars alleges that he was confined to his bed for two months and confined to his home intermittently from the time of the accident until present. At the time of the accident plaintiff was employed as a food deliveryman. Plaintiff testified that he missed four to five months of work following the accident. Plaintiff testified that he is presently unable to sit or walk for long periods of time.
With respect of this category of injury, defendants met their initial burden by showing lack of causation as to all body parts (Vargas v Marte, 123 A.D.3d 471, 472 [1st Dept 2014]). Accordingly, the burden shifted to the plaintiff to raise an issue of fact as to whether the accident resulted in "a medically determined injury or impairment of a non-permanent nature" (Insurance Law § 5102[d]).
In opposition, plaintiff raised an issue of fact as to causation with regard to his claimed injuries, thus, raising a triable issue of fact as to whether he sustained a 90/180-day injury (see Vargas v Marte, 123 A.D.3d at 472; Venegas v Signh, 103 A.D.3d 562, 563 [1st Dept 2013]). Moreover, plaintiffs medical records, dated December 29, 2016 and May 12, 2017, noted that plaintiff was out of work and totally disabled.
SIGNIFICANT DISFIGUREMENT/ PERMANENT LOSS OF USE
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, 585 [1st Dept 2010]). Further, the record shows no evidence that would support plaintiffs claims that he sustained "significant disfigurement" within the meaning of Insurance Law § 5102(d) (see Brackenbury v Franklin, 93 A.D.3d 423,423 [1st Dept 2012]).
Accordingly, it is hereby, ORDERED, that defendants' motion for summary judgment is granted to the extent that plaintiffs claim of a "serious injury" under the Insurance Law § 5102(d) categories of "permanent loss of use" and "significant disfigurement" are dismissed; and it is further, ORDERED, that plaintiffs claim that he sustained a "permanent consequential limitation" to his right knee is dismissed, and it is further, ORDERED, that the remaining branches of Defendants' motion are denied, and it is further, ORDERED, that plaintiffs cross-motion for summary judgment on the Insurance Law § 5102(d) category of "fracture" is denied.
This constitutes the Decision and Order of this Court.