Opinion
21028/2014E
06-05-2018
Antonio A. JOHNSON, Plaintiff, v. The NEW YORK TRANSIT AUTHORITY, et als., Defendants.
Counsel for Plaintiff: Gratt & Associates, P.C. (Julia Belitsky, Esq.) Counsel for Defendants: Jeffrey Samel & Partners (Christopher L. Cornish, Esq).
Counsel for Plaintiff: Gratt & Associates, P.C. (Julia Belitsky, Esq.)
Counsel for Defendants: Jeffrey Samel & Partners (Christopher L. Cornish, Esq).
Mary Ann Brigantti, J.
The following papers numbered 1 to 5 read on the below motion noticed on July 10, 2017 and duly submitted on the Part IA15 Motion calendar of December 20, 2017 :
Papers Submitted Numbered
Defendants' Notice of Motion, Exhibits 1, 2
Pl.'s Aff. In Opp., Exhibits 3, 4
Defendants' Reply Aff. 5
Upon the foregoing papers, the defendants the New York City Transit Authority, Metropolitan Transit Authority, and MTA Bus (also sued herein as "Hostos Makyny, Jr.")(collectively, "Defendants") move for summary judgment, dismissing the complaint of the plaintiff Antonio A. Johnson ("Plaintiff"), for his failure to satisfy the "serious injury" threshold as defined by New York Insurance Law § 5102(d). Plaintiff opposes the motion.
This matter arises out of an alleged motor vehicle accident that occurred on April 25, 2013. According to plaintiff's verified bill of particulars, as a result of the accident, he sustained the following injuries, among others: partial thickness tear of the supraspinatus tendon (left shoulder), left shoulder rotator cuff tear with persistent symptoms, AC joint hypertrophy with mild impingement (left shoulder), left shoulder sprain /strain, herniated discs at C5–6 and C6–7, cervicolumbar radiculopathy, herniated disc at L5–S1, bulging discs at L3–4 and L4–5. Plaintiff was recommended to undergo a left shoulder arthroscopic subacromial decompression. Plaintiff thereafter served a supplemental bill of particulars asserting that he underwent a procedure on February 11, 2016, consisting of open biceps tenodesis, SLAP debridement, subacromial decompression, and synovectomy. He also amended his prior response to allege that he was confined to bed for four days and to his home for ten days following this surgery, and he was incapacitated from his employment for those ten days.
Defendants' moving papers established the absence of a "permanent consequential limitation" as a result of this accident. Defendants carried their initial burden of proof with respect to the cervical spine and lumbar spine by submitting sworn independent medical reports from an orthopedic surgeon and a neurologist who both opined that those injuries had "resolved," and stated that Plaintiff had no evidence of a disability. While the orthopedist recorded some range-of-motion limitations, he explained that those findings were "due to suboptimal effort" (see Santos v. Taveras , 55 AD3d 405, 405 [1st Dept. 2008] ). Defendants' orthopedic expert report also carried Defendants' summary judgment burden with respect to the alleged left shoulder injuries, as the doctor found full range of motion in that body part and other objective testing was either normal or negative.
However, Plaintiff's medical records submitted by Defendants in support of this motion and submitted by Plaintiff in opposition raise issues of fact as to whether Plaintiff sustained a "significant limitation of use" or "permanent consequential limitation" of his left shoulder, and raise issues of fact as to whether Plaintiff's spinal and shoulder injuries are causally related to this accident. Plaintiff was seen by Dr. Gabriel Dassa on May 3, 2013, approximately one week after the accident. At this examination, Dr. Dassa recorded significant range-of-motion restrictions in the cervical and lumbar spine and diagnosed Plaintiff with, inter alia , multiligamentous injury to the cervicolumbar spine, and referred him for MRI evaluations. On June 4, 2013, Plaintiff returned to Dr. Dassa reporting increasing pain in the left shoulder. Dr. Dassa states that Plaintiff's MRI exams revealed disk herniation and bulging. He also found that Plaintiff's range-of-motion limitations had persisted in both the cervical and lumbar spine, and he recorded some limitations in the left shoulder. Dr. Dassa referred Plaintiff for a left shoulder MRI and recommended continued physical therapy treatment.
Plaintiff was next seen by a pain management specialist Dr. Sukdeb Datta on June 6, 2013. Dr. Datta noted that Plaintiff's cervical spine MRI revealed broad-based disc herniation at C5–C6 and C6–C7. The lumbar spine MRI revealed disc bulging and a broad-based herniated disc at L5–S1, and moderate bilateral foraminal stenosis with crowding of the L5 nerve roots. The doctor recommended a series of three transforaminal epidural injections on bilateral L5–S1 and left L3–L4 and L4–L5, as well as physical therapy three times a week for six weeks. An NCV/EMG nerve study revealed evidence of radiculopathy at C5–C6, C6–C7, and L4–L5.
On October 14, 2013, Plaintiff returned to Dr. Dassa for evaluation. He noted the results of Plaintiff's MRI examination including his left shoulder MRI that revealed the existence of a partial thickness tear of the rotator cuff with impingement syndrome. Dr. Dassa states that Plaintiff "has been advised for surgical intervention of his left shoulder" and the doctor's office was going to try to establish the Worker's Compensation claim to him in order to get necessary treatment because he did require left shoulder surgery. The doctor found continued range of motion restrictions in the cervical and lumbar spine. Regarding the left shoulder, he found range of motion "mildly restricted" without listing quantitative measurements. He diagnosed Plaintiff with (1) left shoulder rotator cuff tear with persistent symptoms, (2) left shoulder chronic dysfunction, (3) cervical and lumbar radiculopathy, and (4) lumbar and cervical disk displacements. Dr. Dassa recommended that Plaintiff continue physical therapy.
Plaintiff acknowledged attending physical therapy for approximately three months. When asked why he stopped therapy after those three months, he responded "[t]hey stopped me. They stopped the therapy. It wasn't me. It was the insurance they stopped it."
With respect to the left shoulder, November 2013 records from Dr. Mark Mohrman assess Plaintiff with "left shoulder rotator cuff tendonitis /bursitis," and the doctor administered a lidocaine injection. On March 5, 2014, Plaintiff was seen by Dr. Kenneth McCulloch regarding his shoulder. The doctor measured range of motion restrictions upon forward elevation (130, 180 normal), external rotation (60, 80 normal), and internal rotation (to L4, to T8 is normal). He reviewed Plaintiff's left shoulder MRI and noted that it revealed "bursitis, partial-thickness rotator cuff tear, and impingement." Dr. McCulloch noted that Plaintiff's shoulder had been "refractory to conservative measures over an extended period of time," and he discussed left shoulder arthroscopic subacromial decompression, and evaluation of a possible repair of the rotator cuff, to be scheduled "at the time most convenient for him..." Plaintiff's next visit to Dr. McCulloch was on July 27, 2015, where the doctor noted that despite long-term conservative treatment including physical therapy and rehabilitation which ended in 2014, use of medication, and activity modification, Plaintiff's symptoms only worsened since March 2014. Plaintiff continued to exhibit range of motion restrictions, pain and weakness in the left shoulder. It was stated at that visit that Plaintiff was a candidate for surgery. At the next visit, January 20, 2016, Dr. McCulloch again found limitations and pain in the right shoulder and noted that Plaintiff had long-term conservative treatment including a home exercise program and activity modification. The next month, on February 11, 2016, Plaintiff underwent arthroscopic surgery. According to Dr. McCulloch's records, his post-operative diagnoses were left shoulder traumatic rotator cuff tear, SLAP tear, biceps tear, and impingement as well as synovitis. Post-operative records that are annexed to Defendants' moving papers show that Plaintiff had continued range of motion restrictions in the shoulder upon a July 8, 2016 follow-up visit, when he exhibited forward elevation at 140/180, external rotation at 70/80, and internal rotation at L4/T8. Plaintiff also supplied occupational therapy records, which although unsworn may be considered because they were not the only evidence submitted in opposition to the motion (see Clemmer v. Drah Cab Corp. , 74 AD3d 660 [1st Dept. 2010] ). These records show that Plaintiff obtained therapy regarding his left shoulder in the months following surgery.
In opposition to the motion, Plaintiff provides 2017 reports from Dr. Jerry A. Lubliner, M.D. Dr. Lubliner noted that Plaintiff's MRI reports contained positive findings, and he opined that this accident was a competent cause for those injuries. Dr. Lubliner examined Plaintiff's cervical spine, lumbar spine, and left shoulder. Regarding the cervical spine, he found restrictions upon lateral rotation (30 degrees to the left, 60 degrees to the right, 80 is normal), and positive left Spurling sign. Regarding the left shoulder, Dr. Lubliner found limited forward flexion and abduction to 150 degrees when compared to 180 degree range-of-motion in the right shoulder. He noted that Plaintiff had one-grade of external weakness and positive Neer and Hawkins' test, and stabbing pain with measurement of external left shoulder rotation. Regarding the lumbar spine, Dr. Lubliner found that Plaintiff had restricted range of motion upon flexion (70 degrees, 90 normal), extension (30 degrees with spasm, 40 normal), lateral flexion to the left and right, and Plaintiff demonstrated positive straight-leg raising test on the left. Dr. Lubliner opined that Plaintiff's injuries and limitations were permanent in nature.
First, with respect to the alleged cervical and lumbar spine injuries, Plaintiff failed to adequately explain why he ceased all therapeutic treatment after only three months of physical therapy. "While a cessation of treatment is not dispositive...a plaintiff who terminates therapeutic measures following an accident, while claiming ‘serious injury,’ must offer some reasonable explanation for having done so’ " ( Pommels v. Perez , 4 NY3d at 574 ). It is evident here that Plaintiff did not undergo any treatment with respect to his cervical or lumbar spine between the time he ended physical therapy treatment in 2013 up until Plaintiff's August 2017 examination with Dr. Lubliner. Plaintiff testified that he ended physical therapy because it was "stopped" by his insurance company, however this explanation is unpersuasive because Plaintiff never indicated that he had no other insurance available, nor did he claim that he could not afford further treatment (see, e.g. , Latus v. Ishtarq , 159 AD3d 433, 434 [1st Dept. 2018] ; compare Ramkumar v. Grand Style Transp. Enters., Inc. , 22 NY3d 905 [2013] ). Plaintiff's explanation is further eroded by the fact that he sought further treatment for his left shoulder notwithstanding the fact that his insurance company allegedly stopped paying for treatment. Absent an explanation for the cessation of treatment to his cervical or lumbar spine, Dr. Lubliner's opinions regarding the significance and permanency of those injuries is speculative (see Holmes v. Brini Tr. Inc. , 123 AD3d 628, 629 [1st Dept. 2014] ).
However, with respect to his left shoulder injuries, Plaintiff has sufficiently raised an issue of fact as to whether he sustained a "significant limitation of use" or "permanent consequential limitation" category of injury. Plaintiff demonstrated pain and restricted movement in the shoulder shortly after the accident, and the MRIs of the left shoulder annexed to the moving papers and to the affirmation of Plaintiff's radiologist demonstrate the existence of inter alia a partial thickness tear of the supraspinatus tendon, and eventually Plaintiff was recommended for surgery to correct the condition. The alleged gaps in treatment between November 2013, March 2014, July 2015, and February 2016 surgery are not dispositive because Plaintiff demonstrated persistent range-of-motion restrictions throughout the treatment of his shoulder (see, e.g , Wenegieme v. Harriott , 157 AD3d 412, 412 [1st Dept. 2018] ). Dr. McCulloch's post-surgery examination from July 2016—around the same time that Plaintiff was examined by Defendants' doctors—demonstrated continued restrictions, which were again found at a recent examination by Dr. Lubliner. Defendants do not argue that Dr. Lubliner's findings were insignificant as a matter of law.
Contrary to Defendants' contentions, the sworn reports from Dr. Lubliner are admissible notwithstanding the fact that this expert was not previously disclosed. The CPLR "does not require a party to retain an expert at any particular time" ( CPLR 3101[d] ; Kimberlee M. v. Jaffe , 139 AD3d 508, 509 [1st Dept. 2016] ). Furthermore, a recent amendment to CPLR 3212(b) provides: "[w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (I) or paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit.
Plaintiff raised an issue of fact as to whether his alleged spine and left shoulder injuries are causally-related to this accident. The sworn records from Dr. Dassa detail the treatment that he underwent shortly after the accident and attribute Plaintiff's injuries to this accident. The MRI reports annexed to Plaintiff's radiologist affirmation confirm the positive findings in the cervical and lumbar spine, and those reports do not indicate the existence of any pre-existing or degenerative condition. While Plaintiff's medical experts did not specifically address Defendant's opinion that the spinal injuries were degenerative in nature, they sufficiently rebutted that opinion by attributing the findings to an equally plausible cause—the accident (see Yuen v. Arka Memory Cab Corp. , 80 AD3d 481, 482 [1st Dept. 2011] ; Portillo v. Island Master Locksmith, Inc. , 160 AD3d 463 [1st Dept. 2018] ). Moreover, there was no evidence in Plaintiff's own medical records indicating the existence of pre-existing conditions (see Rodriguez v. Konate , ––– N.Y.S. 3d –––– [1st Dept. May 17, 2018] ). Furthermore, Plaintiff's doctors including his treating surgeon contradicted the opinion of Defendants' radiologist, who opined that Plaintiff had a normal post-accident left shoulder MRI.
"If a trier of fact determines that plaintiff sustained a serious left shoulder injury, [P]laintiff is entitled to recover damages for all injuries causally related to the accident" including his alleged spinal injuries (see Bonilla v. Vargas–Nunez , 147 AD3d 461, 462 [1st Dept. 2017], citing Rubin v. SMS Taxi Corp. , 71 AD3d 548, 549–50 [1st Dept. 2010] ).
Defendants, however, sufficiently demonstrated that Plaintiff did not sustain a "90/180 day" category injury as a result of this accident. Plaintiff admitted in his verified bill of particulars that he was not confined to his bed or home for the requisite period following this accident. Plaintiff further testified that he only missed three or four days of work following the accident before returning to his full duties (Pl. EBT at 11; 12). This demonstrates that Plaintiff has no viable "90/180 day" injury claim (see Fernandez v. Hernandez , 151 AD3d 581, 582 [1st Dept. 2017] ). The fact that Plaintiff missed approximately three months of work following his February 2016 surgery is not determinative of a "90/180" day injury (see Bailey v. Islam , 99 AD3d 633, 634 [1st Dept. 2012] ).
Accordingly, it is hereby
ORDERED, that the branch of Defendants' motion for summary judgment seeking dismissal of Plaintiff's "90/180 day" injury claim, and his claims of a "permanent consequential" or "significant" limitation to his cervical spine or lumbar spine, is granted, and those claims are dismissed, and it is further,
ORDERED that the remaining branches of Defendants' motion for summary judgment are denied.
This constitutes the Decision and Order of this Court.