Opinion
Index No. 710334/19 Motion Seq. No.: 1
06-14-2022
Dominique Polk, Plaintiff, v. Isaiah J. Williams and Aida Cocco, Defendants
Unpublished Opinion
IA PART 14
Motion Date: 3/31/22
HON. PHILLIP HOM JUDGE
The following e-filed documents, listed by NYSCEF document number, were read on this summary judgment motion by Defendants.
PAPERS NUMBERED
Notice of Motion-Statement of Material Facts-Affidavits-Exhibits................ 13 - 22
Affirmation in Opposition-Response to Statement of Material Facts................24 - 31
Replying............................................................................................................33
Upon the foregoing papers, it is ordered that this summary judgment motion by Defendants is determined as follows:
Plaintiff Dominique Polk ("Plaintiff') commenced this action to recover for injuries she allegedly sustained in a motor vehicle crash that occurred on January 31, 2018, on Broadway at or near its intersection with Langdon Place, Village of Lynbrook, County of Nassau, New York.
Plaintiff alleges that, immediately before the collision, she was driving behind a vehicle, leased by Defendant Aida Cocco, and operated by Defendant Isaiah J. Williams ("Defendant-Driver"; collectively: "Defendants"). She alleges that Defendants' vehicle pulled into a parking spot, and while she was passing it, Defendants' vehicle pulled out and collided with her vehicle.
Defendants move for summary judgment on the basis that Plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d). Plaintiff opposes.
In a summary judgment motion, the movant has the initial burden of submitting sufficient evidence eliminating any material issues of fact and demonstrating a prima facie entitlement to judgment as a matter of law (see Giuffrida v Citibank Corp., 100 N.Y.2d 72 [2003]; Alvarez v Prospect Hosp., 68N.Y.2d320 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). Only when the movant satisfies this prima facie burden does the burden shift to the opponent to show that material issues of fact exist (id.). Thus, where the movant does not satisfy this initial burden, summary judgment is denied regardless of the sufficiency of the opposing papers (see Voss v Netherlands Ins. Co., 22 N.Y.3d 728, 734 [2014]).
Of the several categories ("Subcategory" or "Subcategories") of "serious injury" listed in the statutory definition under Insurance Law § 5102 (d), four are relevant here: "[1] permanent loss of use of a body organ, member, function or system [Subcategory: "permanent loss of use"]; [2] permanent consequential limitation of use of a body organ or member [Subcategory: "permanent consequential limitation of use"]; [3] significant limitation of use of body function or system [Subcategory: "significant limitation of use"]; [and] [4] a medical 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 [Subcategory: "90/180"]" (Insurance Law § 5102 [d]).
In support, Defendants submit, among other things, the Verified Bill of Particulars ("BP") (EF Doc. No. 18), the transcript of Plaintiff s examination before trial ("EBT") (EF Doc. No. 20), an affirmation of Regina O. Hillsman, M.D., a Board-Certified Orthopedic Surgeon ("Dr. Hillsman") (EF Doc. No. 21), and an uncertified police accident report (EF Doc. No. 22). The Court finds that the police accident report is inadmissible hearsay, because it is not certified as a business record (see CPLR 4518 [c]; Yassin v Blackman, 188 A.D.3d 62 [2d Dept 2020]).
In opposition, Plaintiff submits, among other things, a Final Narrative Report by Demetrios Karakizis, D.C. ("Mr. Karakizis") (EF Doc. No. 28), an affirmation of Mr. Karakizis (EF Doc. No. 29), and Plaintiff s affidavit (EF Doc. No. 30). Plaintiff also submits other uncertified medical records and reports, i.e., Urgent Care Records (EF Doc. No. 25), records and reports of other entities and physicians, e.g., Alan Medical Services PC and Moshtaq Ahmed, P.A. (EF Doc. No. 26), and MRI Reports (EF Doc. No. 27). The Court finds that Plaintiff does not lay the proper foundation for the other medical records and reports (see CPLR 4518 [a] and 2106; Nicholson v Kwarteng, 180 A.D.3d 695, 696 [2d Dept 2020]; Irizarry v Lindor, 110 A.D.3d 846, 847 [2d Dept 2013]; Daniels v Simon, 99 A.D.3d 658, 660 [2d Dept 2012]; McLoud v Reyes, 82 A.D.3d 848, 848 [2d Dept 2011]; Bronstein-Becher v Becher, 25 A.D.3d 796, 797 [2d Dept 2006]). Additionally, the medical conclusions and opinions contained in those records and reports were not sworn or affirmed and are inadmissible (id.). Mr. Karakizis' affidavit does not cure these defects (id.).
Subcategory: Permanent Loss of Use
To qualify as a "serious injury" within the meaning of this Subcategory, "permanent loss of use" must be total (see Oberly v Bangs Ambulance Inc., 96 NY 295, 299 [2001]; Nesci v Romanelli, IA A.D.3d 765, 766-67 [2d Dept 2010]). The evidentiary submissions demonstrate that Plaintiff did not sustain a total loss of any body part or organ (id.). Therefore, Plaintiff s permanent loss of use claim is dismissed.
Subcategories: Permanent Consequential Limitation of Use and Significant Limitation of Use
"[T]o prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury... An expert's qualitative assessment of a plaintiff s condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff s limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Toure v Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 350 [2002]). Evidence of a herniated disc, a bulging disc, a shoulder impingement, a tear in tendons or a tear in a ligament alone is insufficient to establish a serious injury; there must be additional objective medical evidence establishing that the accident resulted in significant physical limitations (see Pommells v Perez, 4 N.Y.3d 566, 574 [2005]; McLoud, 82 A.D.3d at 849; Larson v Delgado, 71 A.D.3d 739, 740-41 [2d Dept 2010]; Garcia v Solbes, 41 A.D.3d 426, 427 [2d Dept 2007]).
On May 10, 2021, Dr. Hillsman conducted an independent orthopedic examination of Plaintiff and reviewed, among other things, Plaintiffs medical records. Dr. Hillsman provided a qualitative assessment and reported full range of motion ("ROM") of Plaintiff's cervical spine, i.e., forward flexion 50 degrees (50 degrees being normal), extension 60 degrees (60 degrees being normal), right rotation 80 degrees (80 degrees being normal), left rotation 80 degrees (80 degrees being normal), right lateral bending 45 degrees (45 degrees being normal), and left lateral bending 45 degrees (45 degrees being normal). Dr. Hillsman further found that the Distraction Test, Compression Test, Jackson's Test, and Soto-Hall Test were all negative. She also found that there was no evidence of muscle spasm, and no atrophy noted.
Dr. Hillsman also reported full ROM in Plaintiff s thoracic spine, i.e., flexion 45 degrees (45 degrees being normal), extension 0 degrees (0 degrees being normal), right lateral bending 45 degrees (45 degrees being normal) and left lateral bending 45 degrees (45 degrees being normal). She found that there was no paraspinal spasm and no sensory loss. Dr. Hillsman further reported full ROM in Plaintiff s lumbar spine, i.e., forward flexion 60 degrees (60 degrees being normal), extension 25 degrees (25 degrees being normal), right lateral bending 25 degrees (25 degrees being normal) and left lateral bending 25 degrees (25 degrees being normal). She found that the straight leg raise test was negative, as were the Kemp's, Ely's and Fabre tests. Finally, Dr. Hillsman opined that the alleged injuries to Plaintiff s cervical spine, thoracic spine, and lumbar spine were resolved. She also provided a qualitative assessment and reported full ROM of bilateral shoulders.
The Court finds that Defendants establish that Plaintiff has full ROM in her cervical spine, thoracic spine, lumbar spine, and bilateral shoulders. Thus, the Court finds that Defendants establish their prima facie burden of showing that Plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) under Subcategories: Permanent Consequential Limitation of Use and Significant Limitation of Use (see Toure, 98 N.Y.2d at 353; Gaddy v Eyler, 79 N.Y.2d 955, 957 [1992]; Licari v Elliott, 57 N.Y.2d 230, 233-36 [1982]; Delp v Guerra, 173 A.D.3d 681, 683 [2d Dept 2019]).
In opposition, Plaintiff relies on Mr. Karakizis' Final Narrative Report, dated January 17, 2022, and affidavit, dated February 18, 2022. On January 11, 2022, Mr. Karakizis' conducted an independent examination of Plaintiff and reviewed Plaintiff s medical records.
Mr. Karakizis provides a qualitative assessment and reports loss of ROM in Plaintiff s cervical spine, i.e.J extension 45 degrees (50 degrees being normal)-approx. 10% loss, right rotation 65 degrees (80 degrees being normal)-approx. 18% loss, and right lateral flexion 30 degrees (40 degrees being normal)-approx. 25% loss. He states that the Cervical Compression Test elicited pain on the right side of the neck.
In his affidavit, Mr. Karakizis provides a qualitative assessment and reports loss of ROM in Plaintiff s thoraco-lumbar spine, i.e., flexion 70 degrees (90 degrees normal)-approx. 22% loss, extension 25 degrees (50 degrees being normal)-approx. 50% loss, and right lateral flexion 20 degrees (25 degrees being normal)-approx. 20% loss. However, in his Final Narrative Report, which was drafted closer to the examination, Mr. Karakizis provides a qualitative assessment and reports loss of ROM in Plaintiff s thoraco-lumbar spine, i.e., flexion 70 degrees (70-90 degrees being normal)-approx. 0% loss, extension 25 degrees (25 degrees being normal)-0% loss, and right lateral flexion 20 degrees (25 degrees being normal)-approx. 20% loss. The Court finds that the loss of ROM in Plaintiff s thoraco-lumber spine is insignificant within the no-fault statute (id; see also Cebron v Tuncoglu, 109 A.D.3d 631, 633 [2d Dept 2013]; Il Chung Lim v Chrabaszcz, 95 A.D.3d 950, 951 [2d Dept 2012]; McLoud, 82 A.D.3d at 849; Berkowitz v Decker Transport Co., 5 A.D.3d 712, 713 [2d Dept 2004]).
Furthermore, Plaintiff s own expert, Mr. Karakizis, concludes that Plaintiff "sustained a partial, mild to moderate disability to her cervical and lumber spines" [emphasis added]. It is well-settled law that a "minor, mild or slight limitation of use [is] classified as insignificant within the meaning of the [no-fault] statute" (Gaddy, 79 N.Y.2d at 957, quoting Licari, 57 N.Y.2d at 236 [internal quotations omitted]; see Amato v Fast Repair Inc., 42 A.D.3d 477, 477 [2d Dept 2007]). Thus, the minor to moderate limitations to Plaintiff s cervical spine and lumbar spine are insignificant under the no-fault statute. Therefore, Plaintiff fails to raise a triable issue under these Subcategories (id).
The Court notes that Plaintiff testified that she was in a prior car accident in 2010, which required her to have physical therapy. Plaintiff could not recall which parts of her body she injured, whether she received money, and who her attorney was that represented her for that prior accident. Nevertheless, Plaintiff's expert does not acknowledge the fact that she was allegedly injured in a prior accident (see Nicholson v Allen, 62 A.D.3d 766, 767 [2d Dept 2009]).
Subcategory: 90/180
Defendants establish that Plaintiff did not sustain a serious injury under the 90/180-day subcategory, by submitting Plaintiff s EBT testimony, which revealed that she only missed two days from work in the first 180 days following the crash (see Kabir v Vanderhost, 105 A.D.3d 811, 811 [2d Dept 2013]; Bacon v Bostany, 104 A.D.3d 625, 628 [2d Dept 2013]; Beltran v Powow Limo, Inc., 98 A.D.3d 1070, 1071 [2d Dept 2012]; Valera v Singh, 89 A.D.3d 929, 930-31 [2d Dept 2011]; Bamundo v Fiero, 88 A.D.3d 831, 831 [2d Dept 2011]; Jean v Labin-Natochenny, 77 A.D.3d 623, 624 [2d Dept 2010]; McIntosh v O 'Brien, 69 A.D.3d 585, 587 [2d Dept 2010]). Furthermore, while Plaintiff testified that she suffers pain while doing laundry, delivering mail, cleaning, cooking, etc., such testimony does not establish that she suffered a serious injury under the 90/180 Subcategory (see Gaddy, 79 N.Y.2d at 958; Lanzarone v Goldman, 80 A.D.3d 667, 669 [2d Dept 2011]). Plaintiff s testimony merely establishes that she is unable to do her usual and customary activities as easily and as long as she could before the accident, and that she suffers pain from performing such tasks (id.).
In opposition, Plaintiff fails to raise a triable issue of fact as to whether her alleged injuries prevented her from performing substantially all her usual and customary daily activities during at least 90 of the first 180 days following the subject crash (id.). Notably, Plaintiffs own expert attests that, among other things, Plaintiff "was considered completely disabled and somewhat limited in her activities of daily living" [emphasis added], on February 21, 2018, less than one month after the accident. Mr. Karakizis also notes that Plaintiff complained of "having difficulty with bending, lifting and driving." Said note indicates that she was performing such tasks but was having difficulty do so. Furthermore, Plaintiff s self-serving assertions in her affidavit regarding her inability to perform her customary daily activities are insufficient to raise a triable issue of fact (see Harney v Tombstone Pizza Corp., 279 A.D.3d 609, 609-10 [2d Dept 2001]).
In accordance with the foregoing, it is hereby Ordered that this summary judgment motion by Defendants is granted in its entirety; and it is further
ORDER ED that Plaintiff s Complaint is hereby dismissed; and it is further
ORDERED that Defendants shall serve a copy of this Order with Notice of Entry upon Plaintiff, within twenty (20) days from the date of entry.
This constitutes the Decision and Order of this Court.