Opinion
Index No. 23422/2019E
07-14-2021
SOFIA E. LIOREISIS, et al. v. MIGUEL MAZA
Unpublished Opinion
Mary Ann Brigantti Judge
The following papers numbered 1 to5 were read on this motion (Seq. No. __ 3 __) for _SUMMARY JUDGMENT __ noticed on _ February 24, 2021
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 defendant Miguel Maza ("Defendant") moves for summary judgment dismissing the complaint of the plaintiff Kaliopi E. Lioreisis ("Plaintiff') for her failure to satisfy the "serious injury" threshold as defined by New York Insurance Law § 5102 (d). Plaintiff opposes the motion.
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. Palmieri, 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 2011] [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 matter, Defendant carried his initial summary judgment burden of establishing that Plaintiff did not sustain a "serious injury" as a result of this accident. In support of his motion, Defendant submitted Plaintiffs own unaffirmed medical records (Thompson v. Bronx Merchant Funding Sen's., LLC, 166 A.D.3d 542 [1st Dept 2018], citing Galarza v. J.N. Eaglet Publ. Group, Inc., 117 A.D.3d 488, 489, 985 N.Y.S.2d 494 [1st Dept 2014]). Those records were submitted for the purpose of showing Plaintiffs medical visits and a gap in treatment (see Kolodny affirmation, ¶¶2, 17). Defendant also submitted the sworn IME report of orthopedist Dr. Louis Romeo, who found that Plaintiff had normal ranges of motion in her cervical, thoracic, and lumbar spine upon a physical examination and negative clinical results (Ahmed v. Cannon, 129 A.D.3d 645, 646 [1st Dept 2015]). With respect to the right leg, Dr. Romeo did not document any range of motion testing. Thus, Defendant has failed to establish his prima facie showing with respect to the right leg (Green v. Jones, 133 A.D.3d 472, 473 [1st Dept 2015], citing Zhijian Yang v. Alston, 73 A.D.3d 562 [1st Dept 2010]). With respect to Plaintiffs alleged left leg injury as noted in the bill of particulars, Plaintiff only testified that she injured her right leg during the subject accident (see Pl. EBT at 14-16, 34, 37). Thus, reference to Plaintiffs own testimony sufficiently refutes that she sustained any left leg injury as a result of this accident (see Lopez v. Abdul-Wahab, 67 A.D.3d 598, 599 [1st Dept 2009], citing Colon v. Tavares, 60 A.D.3d 419 [2009]). Moreover, Plaintiff made no complaints of any left leg injury at Dr. Romeo's IME, and therefore, Defendant is not required to address the left leg (see e.g., Fludd v. Pena, 122 A.D.3d 436 [1st Dept 2014] [defendants not required to address alleged injury not complained of at medical examination]).
With respect to Plaintiffs alleged headache injury, the Court of Appeals and First Department have held that headaches do not qualify as a "serious injury" (see Licari v. Elliott, 57 N.Y.2d 230, 239 [1982] ["We do not believe the subjective quality of an ordinary headache falls within the objective verbal definition of serious injury"]; Ceruti v. Abernathy, 285 A.D.2d 386 [1st Dept 2001] ["headaches--do not constitute 'permanent loss of use of a body organ, member, function or system' or 'significant limitation of use of a body function or system' under Insurance Law § 5102 (d)"]). Therefore, the Court need not address this alleged injury as noted in the bill of particulars.
Accordingly, Defendant has established that Plaintiff sustained no "permanent consequential" or "significant limitation" category of injury to her cervical, thoracic, or lumbar spine as a result of the subject accident (see Tejada v. LKQ Hunts Point Parts, 166 A.D.3d 436 [1st Dept 2018]; N.Y. Ins. Law § 5102 [d]). As noted above, Defendant did not establish his prima facie showing with respect to Plaintiffs right leg injury. Contrary to Defendant's contention, Defendant has failed to carry his burden as to lack of causation, since Dr. Romeo causally related Plaintiffs alleged cervical, thoracic, and lumbar spine, and right leg injuries, to the subject accident (see Henry v. Carr, 161 A.D.3d 424 [1st Dept 2018]; Sanchez v. Draper, 123 A.D.3d 492, 492-493 [1st Dept 2014]; Ayala v. Cruz, 95 A.D.3d 699, 700 [1st Dept 2012]).
In opposition to the motion, Plaintiff has raised a triable issue of fact as to whether she sustained a "permanent consequential" or "significant" limitation to her cervical, thoracic, and lumbar spine, as a result of this accident. At the outset, the Court notes that the Plaintiff submitted certified medical records, marked as Exhibits B and D, which the Court may consider for the limited purpose of demonstrating that Plaintiff sought medical treatment for her claimed injuries contemporaneously with the subject accident (see Marcelo v. Fabius, __ A.D.3d __, 2021 NY Slip Op 03552 [1st Dept June 8, 2021] [citations omitted]). Plaintiff also submitted the report from Dr. Zhanna Kalikhman, who first examined Plaintiff four days after the subject accident and again approximately six months later. Although Dr. Kalikhman's report is unsworn, Defendant waived any objection to this technical defect since the issue was not raised in reply (Long v. Taida Orchids, Inc., 117 A.D.3d 624, 625 [1st Dept 2014] [citations omitted]). Even considering Dr. Kalikhman's report, however, the doctor did not compare Plaintiffs range of motion testing to normal limits, thereby leaving the Court to speculate as to the meaning of those figures (Mickens v. Khalid, 62 A.D.3d 597 [1st Dept 2009]).
Plaintiff further submitted the sworn report of Dr. Michael Katz, who examined Plaintiff recently on February 9, 2021. During the examination, the doctor found, among other things, pain and range of motion limitations in Plaintiffs cervical and lumbar spine, and causally related those injuries to the subject accident. Plaintiffs straight leg raise was also noted to be positive. With respect to the thoracic spine, the doctor stated this body part sustained an injury causally related to the subject accident but has since "recovered." Absent documented limitations with respect to the thoracic spine, there can be no "serious injury" (see Lopez v. Morel-Ulla, 144 A.D.3d 504, 505 [1st Dept 2016], citing Mayo v. Kim, 135 A.D.3d 624, 625 [1st Dept 2016]). Nevertheless, if the trier of fact determines that Plaintiff sustained a serious injury to her cervical or lumbar spine, or right leg at trial, Plaintiff may recover damages for her thoracic spine even though that body part does not satisfy the serious injury threshold (Bonilla v. Vargas-Nunez, 147 A.D.3d 461, 462[lst Dept 2017], citing Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549-550 [1st Dept 2010]).
Contrary to Defendant's contention, Plaintiffs alleged gap in treatment is not dispositive because Plaintiff testified that after she underwent physical therapy for approximately eight months following this accident she stopped treating once her no-fault benefits were terminated (Pl. EBT at 29-30, 43-44). This evidentiary statement presents the requisite "bare minimum required to raise an issue regarding 'some reasonable explanation' for the cessation of physical therapy" (Ramkumar v. Grand Style Enterprises, Inc., 22 N.Y.3d 905, 906 [2013]). Also contrary to Defendant's contention, Plaintiffs affirmation in opposition is not "in direct violation" of 22 NYCRR § 202.8-b since the opposition papers contain an affirmed certification of compliance pursuant to this regulation. Defendant does not specifically raise any alleged nonconformance with regard to any of Plaintiffs other papers.
With respect to Plaintiffs "90/180-day" injury claim, Defendant sufficiently established his entitlement to dismissal of this claim since Plaintiff admitted at her deposition that she was confined to her home "for a week" following the subject accident (Pl. EBT at 38). Because such an admission demonstrates that Plaintiff was not confined to her home for the "requisite period" of time following this accident, Plaintiff has no viable "90/180 day" injury claim (Gjoleka v. Caban, 188 A.D.3d 458, 459 [1st Dept 2020] [citations omitted]).
Finally, there is no evidence on this record that Plaintiff sustained a "total loss of use" of any body part, and therefore, any claim that she sustained a "permanent loss of use" of any body part is dismissed (see Riollano v. Leavey, 173 A.D.3d 494 [1st Dept 2019], citing Oberly v. Bangs Ambulance, 96 N.Y.2d 295,299 [2001]).
Accordingly, it is hereby, ORDERED, that Defendant's motion for summary judgment is granted to the extent that Plaintiffs claim that she sustained a "90/180 day" injury, and sustained a "permanent loss of use" of any body part, as a result of this accident is dismissed, and it is further, ORDERED, that Defendant's motion for summary judgment is granted to the extent that Plaintiffs claim that she sustained any injury to her left leg is dismissed, and it is further, ORDERED, that Defendant's motion for summary judgment is granted to the extent that Plaintiffs claim that she sustained a "serious injury" to her thoracic spine is dismissed, and it is further, ORDERED, that the remaining branches of Defendant's motion are denied.
This constitutes the Decision and Order of this Court.