Opinion
Index No. 503860/2019 Motion Sequence No. 7
10-24-2022
Maksudur Rahman, Plaintiff(s), v. Roint Taxi Corp, Mohammad Y Jut, and Motor Vehicle Accident Indemnification Corporation, Defendant(s).
Serge Pierre, Esq. Mallilo & Grossman Esqs.,Attorneys for Plaintiff Baker, McEvoy & Moskovits Attorneys for Defendant Jut Sheila Ahmed Esq. Attorney for Defendants MVAIC
Unpublished Opinion
Serge Pierre, Esq. Mallilo & Grossman Esqs.,Attorneys for Plaintiff
Baker, McEvoy & Moskovits Attorneys for Defendant Jut
Sheila Ahmed Esq. Attorney for Defendants MVAIC
Odessa Kennedy, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion:
Papers NYSCEF Document No.
Notice of Motion, Affirmation in Support 104 - 115
Opposition 116 - 123
Reply 124 - 125
Upon review of the foregoing papers, defendants Roint Taxi Corp and Mohammad Y. Jut's motion for summary judgment based on failure to meet the serious injury threshold under Section 5104(a) and 5102(d) of the Insurance Law is decided as follows.
Plaintiff, 19 at the time of the incident, submits an affidavit in opposition to the motion stating he was involved in a motor vehicle incident on October 28, 2018, while riding his bike. As a result, he sustained injuries to his neck, back and right leg and ankle. Following the incident, he was treated and released at a hospital, ambulated with crutches, and instructed to follow up with his doctor. On November 2, 2018, plaintiff presented for treatment at New York Complete Care where he was treated under the care of Dr. Ikezi, and Dr. Hannanian until January 2020. Plaintiff stopped treatment because the no fault carrier terminated his benefits and plaintiff's treating physicians informed him that he had at the time reached maximum benefit.
Plaintiff contends that during first six months immediately after the incident, he had curtailed his daily activities including bending, sitting without pain, taking care of household chores, outside chores, carrying groceries, doing laundry, exercising, and playing sports. Also, prior to the incident, plaintiff worked for Uber Eats 60 hours per week and also attended school. After the incident, plaintiff contends he was unable to work for 2 1/2 months and when he returned to work, he could only work three days per week initially, and later five days and around 40 hours per week.
To date, plaintiff contends that he has difficulty bending, kneeling to pray, sitting for more than 15 minutes and cannot play sports. He lives on the second floor and has to climb stairs every day which aggravates the pain in his back and ankle. Plaintiff states that he uses over-the-counter medications, muscle relaxers and a body pillow to alleviate the pain.
In opposition to the motion, plaintiff further submits affirmations from his treating physicians Dr. Ikezi and Dr. Hannanian. Dr. Ikezi states that on November 2, 2018, Dr. Ikezi, based upon plaintiff's complaints of pain to the neck, back, and right ankle, performed plaintiff's physical, finding, inter alia, significant restriction of range of motion of the lumbar and the cervical spine at various levels. As a result, he recommended physical therapy, electrical stimulation, message therapy, pain medication and MRIs of the cervical and lumbar spine and the right ankle. Plaintiff was treated until January 2020 when he reached maximum benefit.
Based on plaintiff's MRIs, clinical presentations, and his examinations of the plaintiff, Dr. Ikezi states that plaintiff sustained L4-L5 left lateral disc herniation or neural foraminal narrowing; L5-S1 right lateral disc herniation with neural foraminal narrowing; lumbar and cervical radiculopathy; right ankle sprain and asymmetry, mortise with fluid and widening medially injury to the deltoid ligamentous complex. Dr. Ikezi opines that said injuries are causally related to the motor vehicle accident of October 28, 2018 and are significant as they inhibit plaintiff's ability to carry out normal activities of daily living including sitting, standing, bending, walking, exercising, and other strenuous physical activities. He further opines that the injuries, including those involving plaintiff's discs causing significant loss of range of motion are permanent and cannot be resolved without surgical intervention. Dr. Ikezi further states that during subsequent visits in his office on various dates, there was no significant improvement of plaintiff's condition.
Dr. Ikezi last examined plaintiff on February 22, 2022. Plaintiff continued to complain about persistent low back pain radiating to his legs with weakness and right ankle pain. Plaintiff's physical examination indicated significant restriction of loss or range of motion of the lumbar spine at various levels including 50% loss upon extension.
Plaintiff further submitted an affirmation from Dr. Hannanian. Dr. Hannanian first saw plaintiff on May 6, 2019. Plaintiff complained of neck pain, persistent lower back pain, and pain in the right foot and right ankle. Dr. Hannanian performed plaintiff's physical examination which indicated significant loss of range of motion of the lumbar and cervical spines; reviewed the MRI films of the cervical lumbar spine and right ankle, which he contends revealed inter alia: L4/L5 and L5-S1 herniation traumatic cervical and lumbar myofascitis; and right foot sprain.
Based on the foregoing, Dr. Hannanian opined that plaintiff sustained traumatic cervical myofascitis; traumatic lumbar myofascitis; right ankle sprain, right foot sprain; straightening of the physiologic lordosis consistent with pain and/or spasm; L4-5 lateral disc herniation or neural foraminal narrowing; L5- S1 lateral disc herniation with neural foraminal narrowing; asymmetry at the right ankle mortise. Dr. Hannanian states he found the patient to be partially disabled and he had limitations of activities of daily living and his prognosis was guarded.
Dr. Hannanian continued to monitor plaintiff's treatment at his office until January 2020 when the insurance carrier stopped paying and the plaintiff was advised his condition had reached maximum improvement as there had been no significant improvement on subsequent visits with him. Plaintiff last returned to Dr. Hannanian for a follow- up examination on February 28, 2022, with continued complaints of constant right ankle pain, worse with movements, and low back pain with tingling in the right foot. Dr. Hannanian performed a lumbar range of motion testing with significant limitation of loss of range of motion including 50% loss at left lateral bending. On said date Dr. Hannanian also performed an NCV/EMG of the plaintiff which revealed: bilateral denervation in the muscles supplied by L4, L5 nerve root consistent with radiculopathy.
Dr. Hannanian's current diagnosis of the plaintiff is traumatic cervical myofascitis; traumatic lumbar myofascitis; right ankle sprain, right foot sprain; straightening of the physiologic lordosis consistent with pain and/or spasm; L4-5 lateral disc herniation or neural foraminal narrowing; L5-S1 lateral disc herniation with neural foraminal narrowing; asymmetry at the right ankle mortise; bilateral denervation in the muscles supplied by L4, L5 nerve root consistent with radiculopathy.
Based on his review of the MRIs, his examinations of the plaintiff, NCV/EMG testing, plaintiff's history and lack of prior similar symptoms, Dr. Hannanian states the above injuries were caused by the subject incident and are significant and permanent in nature as they are consistent with the clinical presentation in his office. He further opines the injuries hinder plaintiff's ability to carry out normal activities of daily living such as standing, bending, kneeling, lifting, and other strenuous activities with ease and free of pain.
To assess the significance of a plaintiff's injuries, a 20% decrease in certain aspects of a plaintiff's range of motion in the cervical and lumbar spine is sufficient to raise a triable issue of fact as to the serious injury threshold. Mazo v Wolofsky, 9 A.D.3d 452 (2d Dept 2004). Further, any discrepancies in the various doctors' reports involve issues of credibility which is for a jury to determine. Francis v Basic Metal, 144 A.D.2d 634 (2d Dept 1988). Also, in Lombardi v Columbo, 259 A.D.2d 524 (2d Dept 1999), a physician's finding that the right lateral flexion of plaintiff's cervical spine was 19 degrees less than its left lateral flexion was sufficient to create a question of fact as to whether plaintiff had sustained a "serious injury."
Here, plaintiff's treating physicians have found that plaintiff's restriction of the range of motion of the various body parts are significant which to date hinder plaintiff's ability to carry out his normal activities of daily living. The findings of Defendants' experts and plaintiff's physicians Dr. Ikezi and Dr. Hannanian materially differ as to the causation, nature, extent, significance of plaintiff's alleged injuries and the resulting restrictions of the cervical and lumbar spine and the right ankle.
Defendants' examining expert, Dr. Ferriter, did not review any medical records in rendering his opinion. The conflicting findings and opinions between defendants' expert and plaintiff's treating physicians raise material factual issues that must be resolved by a jury.
Moreover, while plaintiff alleges that he was unable to perform substantially all of the material acts which constituted his customary activities for a period of not less than 90 days during the 180-day period immediately following the incident because of a medically determinable injury, defendants' experts failed to address this allegation which further warrants denial of the motion. See Nembhard v Delatorre, 16 A.D.3d 390 (2d Dept 2005).
Based on the foregoing, defendants' motion for summary judgment is denied.
This constitutes the Order of the Court.