Opinion
Index No. 152506/2019 Motion Sequence No. 002
09-23-2022
ALI RIZWAN, CHOUDARY M. YOUNAS, SALMA YOUNAS, Plaintiffs v. CHUNG SHIK LEE, Defendant.
Unpublished Opinion
Present: Hon. Catherine DiDomenico Judge
DECISION AND ORDER
Catherine M. DiDomenico, Judge
Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion Sequence Number 002
Numbered
Notice of Motion by Defendant (002), 1
Affidavit in Opposition by Plaintiff 2
Affirmation in Reply by Defendant 3
Transcript of Oral Argument dated 4/8/22 4
Upon the foregoing cited papers, the Decision and Order is as follows:
Plaintiffs Motion
Defendant, CHUNG SHIK LEE, moves by Notice of Motion (Seq. No. 002) for an Order granting him summary judgment on the issue of whether the Plaintiffs, ALI RIZWAN, CHOUDARY YOUNAS and SALMA YOUNAS, sustained a "serious injury" as defined by Section 5102(d) of the Insurance Law. Oral argument of the present motion was heard on April 8, 2022.
The present motion relates to a motor vehicle accident which occurred on December 16, 2017. It is undisputed that after this accident all three Plaintiffs underwent percutaneous lumber discectomies after a course of conservative treatment. In addition, it is undisputed that Plaintiff Choudary Younas underwent arthroscopic shoulder surgery. In support of his "threshold" motion, Defendant has submitted a copy of each of the Plaintiffs' deposition transcripts to establish the facts surrounding the accident and its aftermath. In addition, Defendant has provided a copy of three separate "IME" reports issued by the Defendant's expert witness Dr. Pierce J. Ferriter, M.D. Dr. Ferriter examined each of the Plaintiffs on April 27, 2021 and concluded that their claimed injuries were "healed" or "resolved." Dr. Ferriter further indicates that causality is an issue, as the Plaintiffs' conditions were likely degenerative in nature.
Plaintiffs have submitted lengthy opposition to the motion. In support of their opposition, Plaintiffs offer voluminous medical records, a Physician's Affirmation from their treating surgeon Dr. Isaac Kreizman, M.D., and series of sworn reports from their treating Chiropractor, Peter Tochilovsky, D.C. who conducted range of motion testing. Plaintiffs, and their treating medical professionals, argue that the December 16 accident caused serious injuries sufficient to satisfy the threshold requirements of Insurance Law §5102(d).
Applicable Law
The proponent of a summary judgment motion has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case. See Otty Cab Corp. v. Nazir, 72 N.Y.S.3d 517 (2d Dept 2017). A movant's burden can be satisfied by the submission of sworn affidavits or deposition testimony in proper evidentiary form. See Charlie Fox, Inc. v. Diallo, 48 N.Y.S.3d 264 (2d Dept. 2016). When moving pursuant to Insurance Law §5102(d), the moving party must conclusively establish that the Plaintiff did not suffer any of the enumerated "serious injuries" set forth in that statute. See Cortez v. Bray, 192 A.D.3d 451 (1st Dept. 2021). Once a prima facie showing of entitlement to summary judgment has been established, the burden shifts to the non-moving to raise a material issue of fact. See Ubillus-Tambini v. Ischakov, 36 N.Y.S.3d 410 (2d Dept. 2016). A plaintiff opposing a "threshold" motion bears the burden of offering objective evidence of a serious injury sufficient to raise a triable issue of fact. See Stevens v. Homiak Transp., Inc., 21 A.D.3d 300 (1st Dept. 2005).
Decision
In support of his motion Defendant stresses that the three Plaintiffs allege almost identical injuries, arguing that this similarity makes their veracity questionable. However, Plaintiffs argue that it is not unusual for persons occupying the same vehicle to sustain similar injuries, as the mechanism of injury is the same. Defendant further argues that the alleged injuries sustained were not of such a serious nature as to warrant invasive treatment, implying that the percutaneous lumbar discectomies were not medically necessary. Notably Defendant's expert (Dr. Ferriter) does not make that assertion, only stating that "published evidence supporting a percutaneous lumbar discectomy as a treatment option for lumbar radiculopathy is poor and insufficient to formulate a recommendation for or against its utilization." Regardless, Dr. Ferriter does find that all three Plaintiffs have fully recovered from any alleged injuries sustained, that the injuries were degenerative in nature, and that the Plaintiffs ranges of motion are normal. .
After considering the Defendant's motion papers, the Court finds that he has met his initial burden of establishing his entitlement to summary judgment as a matter of law on the "significant limitation" and "permanent loss" threshold categories. The report issued by the Defendant's expert, Dr. Ferriter, indicates that when the Plaintiffs were objectively tested using a handheld goniometer their range of motion fell within normal limits. Dr. Ferriter further opines that the Plaintiffs injuries were primarily degenerative and were all healed or resolved by the time of his examination. As the movant has established his entitlement to summary judgment as a matter of law on these claims, the burden shifts to the non-moving party, in this case the plaintiffs, to raise a material question of fact. See Paula v. City of New York, 249 A.D.2d 100 (1st Dept. 1998).
In relation to the 90 out of 180-day category the analysis becomes more complicated. Defendant has arguably met his initial burden of establishing that Plaintiff Rizwan Ali was not medically required to curtail substantially all of his usual and customary activities for 90 days out of the first 180 days following the accident. Plaintiff Ali's deposition testimony simply falls short of the required threshold. See Nesci v. Romanelli, 74 A.D.3d 765 (2d Dept. 2010). However, the same cannot be said regarding Plaintiff Choudary Younas, who testified that he was required to use various medical devices and was confined to his home for up to a year following the accident or Plaintiff Salma Younas who testified that she was confined to her home for at least two months and remains unable to household chores. To the extent that Defendant challenges the veracity of these claims, that is an issue for the finder of fact to determine. See Canale v. Khananayev, 173 A.D.3d 965 (2d Dept. 2019).
Moreover, to the extent that Defendant has met his burden of establishing an initial right to summary judgment, Plaintiffs have successfully raised material questions of fact in opposition. Plaintiffs rely upon voluminous medical records, an Affirmation from their treating surgeon, Dr. Isaac Kreizman, M.D., and sworn reports from their treating Chiropractor Peter Tochilovsky. In his Affirmation, Dr. . Kreizman details the injuries allegedly sustained by each of the parties and finds that they are causally related to the motor vehicle accident at issue. He also indicates that when he examined the plaintiffs, they each presented with significant range of motion limitations. While Dr. Kriezman's findings are relevant as to causation and the history of treatment, they are incomplete in regard to his range of motion testing. Dr. Kriezman's Affirmation fails to clearly indicate the method of measurement utilized and how each Plaintiffs range of motion deviates from what is "normal." See Dine v. Shalesi, 2022 NY Slip Op 04899 (2d Dept. 2022). However, this omission is corrected by Dr. Tochilovsky who examined each of the Plaintiffs on July 19, 2021 with a goniometer and found that each presented with significant deviations from the "normal" range of motion as set by the "A.M.A. Guide to the Evaluation of Permanent Impairment." Dr. Tochilovsky's sworn reports are sufficient to raise a material issue of fact as to whether the Plaintiffs suffered a "significant limitation" or "permanent consequential loss." See Acosta v. Rubin, 2 A.D.3d 657 (2d Dept. 2003); see also Velazquez v. City of New York, 200 A.D.3d 547 (1st Dept. 2021); Ramirez v. L-T. &L Enter., Inc., 189 A.D.3d 1636 (2d Dept. 2020). The Court also finds that there are questions of fact regarding whether Plaintiffs Salma Younas and Choudary Younas satisfy the "90 out of 180 days" category based upon their deposition testimony.
Thus, for the reasons set forth above, Defendant's motion for summary judgment dismissing Plaintiffs' case is hereby denied as there are material questions of fact and credibility that will require a trial. See Perl v. Meher, 18 N.Y.3d 208 (2011); see also Jung Ung Moon v. Kumbee Ree P. Some, 189 A.D.3d 628 (1st Dept 2020). However, Defendant has successfully established that Plaintiff Ali Rizwan cannot satisfy the 90 out of 180 day threshold category and Plaintiff Rizwan has not raised a material issue of fact in opposition, thus that category will be unavailable to him at trial.
This constitutes the Decision and Order of the Court on all issues raised in relation to motion sequence number 002. The matter has been referred to the Court's mediation program. If that mediation is unsuccessful the matter will be referred to the Trial Ready Part (TRP) for selection of a Jury. Matter is hereby adjourned to November 2, 2022 for control purposes, Counsel are hereby directed to contact chambers after their mediation date to indicate whether a trial will be required.