Opinion
No. 63961/2019 Motion Seq. 1
04-13-2021
ANN MARIE PHILLIPS, Plaintiff, v. THE COUNTY OF WESTCHESER, BEE LINE BUS SYSTEM OF WESTCHESTER COUNTY, LIBERTY LINES TRANSIT INC. and BRIHEAN EDWARDS, Defendants.
Unpublished Opinion
DECISION & ORDER
HON. ALEXANDRA D. MURPHY. J.S.C.
In an action to recover damages for personal injuries as a result of a motor vehicle accident the defendants move for summary judgment dismissing the complaint on the grounds that the plaintiff has not sustained a serious injury within the meaning of Insurance Law 5102:
Papers Considered
1. Notice of Motion/Affirmation of Patrick M. Butler, Esq ./Exhibits A-L;
2. Affirmation of Devin Newman, Esq. in Opposition/Exhibits A-H;
3. Reply Affirmation of Patrick M. Butler, Esq.
Factual and Procedural Background
This action arises out of a motor vehicle accident that occurred on March 6, 2019, on Park Avenue in Yonkers. Plaintiff was a passenger in a Westchester County bus that collided with a parked vehicle.
Defendants move for summary judgment dismissing the complaint on the grounds that the plaintiff has not sustained a serious injury within the meaning of the Insurance Law.
Defendants submit an affirmed independent neurologic examination report of Dr. Michael J. Carciente. Dr. Carciente examined plaintiff on July 8, 2020. Plaintiff complained of pain in the right shoulder and lower back. According to Dr. Carciente, plaintiff's neurological examination was normal. There was no myotomal weakness, dermatomal sensory deficits, asymmetric reflexes, or atrophy supporting the presence of radiculopathy. Dr. Carciente found no presence of an ongoing neurological injury, disability, or permanency.
Defendants also submit an affirmed independent radiology report of Dr. Jonathan Luchs. Dr. Luchs reviewed MRIs of the cervical and lumbar spine taken on April 9, 2019, and an MRI of the right shoulder taken on April 30, 2019.
Dr. Luchs' review of the cervical spine MRI revealed degenerative disc disease and degenerative arthropathy most prominent at C5/6 with associated disc protrusion. Dr. Luchs indicated that these findings are chronic and degenerative and not posttraumatic or secondary to the alleged injury.
Dr. Luchs' review of the lumbar spine MRI revealed mild early degenerative disc disease and early facet arthropathy. Dr. Luchs opined that these findings are chronic and degenerative and not posttraumatic. There were no posttraumatic findings evident on the exam or findings causally related to the alleged injury.
Dr. Luchs' review of the right shoulder MRI found subacromial impingement resulting in supraspinatus more than infraspinatus tendinosis as well as chronic remodeling of the anterior superior labrum with adjacent chronic glenoid marginal osteophyte formation. Dr. Luchs opines that these findings are chronic and degenerative and not posttraumatic or secondary to the alleged injury. According to Dr. Luchs, these findings predate the alleged injury and there are no findings causally related to the alleged injury.
Defendants also submit an affirmed independent orthopedic examination report of Dr. Jonathan D. Glassman. Dr. Glassman performed an examination of plaintiff on September 11, 2020. Dr. Glassman's range of motion examination of the cervical spine revealed flexion of 45 degrees with 45 being normal; extension to 50 degrees with 50 being normal; right and left rotation to 80 degrees with 80 being normal; right lateral flexion to 40 degrees with 45 being normal; and left lateral flexion to 45 degrees with 45 being normal.
Dr. Glassman's examination of the lumbar spine, noted with suboptimal effort, revealed forward flexion to 80 degrees with 90 being normal; extension to 30 degrees with 30 being normal; right and left lateral flexion to 40 degrees with 45 being normal; and right and left lateral rotation to 35 degrees with 40 being normal.
Dr. Glassman also performed a range of motion test to the plaintiffs right shoulder, noting that the plaintiff exhibited suboptimal effort. The examination revealed anterior flexion to 145 degrees with 180 being normal; abduction to 135 degrees with 180 being normal; adduction to 45 degrees with 45 being normal; external rotation to 90 degrees with 90 being normal; internal rotation to 80 degrees with 80 being normal; and posterior extension to 60 degrees with 60 being normal.
Dr. Glassman concluded that status post sprain of the cervical and lumbar spine superimposed upon pre-existing degenerative changes. Status post strain of the right shoulder superimposed upon pre-existing degenerative joint disease as well as repair of a SLAP tear with synovectomy-complete and debridement-complete. Dr. Glassman concluded that plaintiff has no restrictions and is capable of working and performing her normal activities of daily living without limitations.
In opposition, plaintiff submits an affidavit of Evan G. Pasqua, D.C. Plaintiff underwent recent range of motion testing with Dr. Pasqua performed on December 22, 2020. The cervical spine exhibited a 20% restriction with flexion to 80 degrees with 90 being normal; extension to 60 degrees with 80 being normal; lateral flexion to 20 degrees with 30 being normal; right rotation to 50 degrees with 80 being normal; and left rotation to 70 degrees with 80 being normal.
The recent range of motion testing performed on the lumbar spine exhibited a 25% restriction with forward flexion to 65 degrees with 80 being normal; extension to 20 degrees with 30 being normal; and lateral flexion to 20 degrees with 30 being normal.
Dr. Pasqua determined that the injuries are permanent and that the accident was the competent producing factor of the initial and present injuries.
Plaintiff also submits an affirmation of Lisa A. Corrente, M.D., a board-certified radiologist. Dr. Corrente reviewed the MRI of the cervical spine which revealed C5-6 midline disc herniation, C3-4, C4-5, and C6-7 disc bulges indent ventral thecal sac. Dr. Corrente reviewed the MRI of the lumbar spine which revealed L4-5 disc bulge indents ventral thecal sac with shallow bilateral foraminal disc herniations causing proximal bilateral neural foraminal stenosis. The MRI of the right shoulder revealed an anteroinferior labral tear and tendinosis of anterior fibers of supraspinatus of the right shoulder. Dr. Corrente found no signs of degeneration or prior injury in the cervical or lumbar spine. She concluded that the injuries sustained to the right shoulder, cervical spine, and lumbar spine were caused by the subject accident. The injuries were posttraumatic in nature, caused by the accident, and permanent.
Plaintiff further submits an affirmation of W. Joseph Gorum, M.D., an orthopedic surgeon. Plaintiff was taken from the accident scene via ambulance to St. John's Riverside Hospital. Plaintiffs initial consultation with Dr. Gorum was on March 12, 2019. Plaintiff was receiving chiropractic care and was advised to continue treatment. Plaintiff's right shoulder was not responding to therapy and Dr. Gorum recommended right shoulder arthroscopic surgery which plaintiff underwent on September 6, 2019. During the procedure, Dr. Gorum visualized tearing of the glenoid labrum and a rotator cuff tear.
Plaintiffs most recent examination with Dr. Gorum of the right shoulder showed forward flexion to 170 degrees with 180 being normal; abduction to 170 with 180 being normal; external rotation to 80 degrees with 90 being normal; and internal rotation to 85 degrees with 90 being normal. Dr. Gorum opines, with a reasonable degree of medical certainty, that the subject accident was the competent producing factor of the initial and present injuries to the right shoulder, neck, and back. His review of the medical records revealed no evidence of longstanding degenerative disease or any pre-existing injuries to the right shoulder, neck, or back. Dr. Gorum determined that the injuries are permanent.
Plaintiff also submitted an affirmation of Robert Marini, M.D., a physician specializing in physical medicine and rehabilitation. Dr. Marini initially examined plaintiff on April 19, 2019. Thereafter, plaintiff returned to Dr. Marini for pain management reevaluation on November 18, 2020. Range of motion testing of the lumbar spine revealed forward flexion at 70 degrees with 90 being normal; extension to 20 degrees with 30 being normal; and right and left rotation of 20 degrees with 30 being normal. Examination of the cervical spine revealed extension of 40 degrees with 45 being normal; and right and left lateral rotation to 40 degrees with 50 being normal. Dr. Marini determined that the injuries are permanent and related to and caused by the subject accident.
Discussion
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v N.Y. Univ. Med. Ctr., 64 N.Y.2d at 853). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; see Zuckerman v City of New York, 49 N.Y.2d at 562). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a prima facie showing of entitlement to summary judgment (see Zuckerman v New York, 49 N.Y.2d at 562).
Under the "no fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained (see Licari v Elliott, 57 N.Y.2d 230 [1982]). Insurance Law 5102(d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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."
Under the "90/180" category, "a plaintiff must present objective evidence of a medically determined injury of a non-permanent nature" (Toure v Avis Rent A Car Systems, 98 N.Y.2d 345, 357 [2002]; Licari v Elliott, 57 N.Y.2d 230). Plaintiff must demonstrate that her usual daily activities were restricted during 90 of the 180 days following the accident and submit evidence based on objective medical findings of a medically determined injury or impairment which caused the alleged limitations in her daily activities (see Toure v Avis Rent A Car Systems, 98 N.Y.2d 345; Gaddy v Eyler, 79 N.Y.2d 955 [1992]).
The defendants demonstrated1 prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law 5102(d) (see Bong An v Viilas-Familia, 183 A.D.3d 582, 583 [2d Dept 2020]). Plaintiff failed to raise an issue of fact in opposition. Plaintiff testified at her deposition that she went to work the day after the accident and that she was in bed for four to five days due to the accident. She testified that her duties at work remained the same and that she worked through July 2019.
With respect to permanent consequential limitation and significant limitation of use, defendant's medical experts examined the plaintiff and the diagnostic studies and stated in affirmed reports that any slight range of motion deficits were attributable to pre-existing degenerative diseases as exhibited on plaintiffs diagnostic studies. Thus, the defendants submitted competent medical evidence establishing, prima facie, that the plaintiffs injuries did not constitute a serious injury under within the meaning of Insurance Law § 5102 (d) and were degenerative in nature (see // Chung Lim v Chrabaszcz, 95 A.D.3d 950, 951 [2d Dept 2012]; McLoud v Reyes, 82 A.D.3d 848 [2d Dept 2011]).
In opposition, however, plaintiff raised a triable issue of fact. Plaintiff demonstrated limitations in range of motion on physical examination and a tear to the right shoulder as shown on an MRI taken after the accident. Further, her doctors averred that the conditions were not degenerative in nature or pre-exising (see Bonilla v Vargas-Nunez, 147 A.D.3d 461 [1st Dept 2017]; Smith v Green, 188 A.D.3d 473 [1st Dept 2020]).
Accordingly, it is
ORDERED that the branch of defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury is GRANTED under the Insurance Law 5102(d) category of 90/180-days; and it is further
ORDERED that the motion is otherwise DENIED.
The parties are directed to appear in the Settlement Conference Part, room 1600, for further proceedings at a date and time to be provided.