Opinion
TS-300057/20
11-09-2020
Jhoselyn A. SALCEDO, Plaintiff(s), v. Ramon SALVADOR and City Livery Leasing Brooklyn, Inc., Defendant(s).
Counsel for Plaintiff: Greenberg Law PC by Robert J. Mena Counsel for Defendants: Baker, McEvoy, Morrissey & Moskovits, PC by Kevin J. Barry
Counsel for Plaintiff: Greenberg Law PC by Robert J. Mena
Counsel for Defendants: Baker, McEvoy, Morrissey & Moskovits, PC by Kevin J. Barry
Fidel E. Gomez, J.
In this action for personal injuries, premised on the negligent operation of a motor vehicle, the parties, by stipulation dated October 23, 2018, stipulated to have this matter tried via a bench trial. Pursuant to the stipulation, damages were capped at $100,000, inclusive of interest accruing since March 4, 2019, the date a judgment was entered on the issue of defendants' liability pursuant to the Supreme Court's (Higgitt, J.) Decision and Order granting plaintiff's motion for partial summary judgment. The stipulation also narrowed the universe of documentary evidence to that which was exchanged by the parties 20 days prior to trial. At trial, the parties further stipulated that the foregoing evidence, inter alia , plaintiff's medical records and reports from defendants' experts, would be admitted for this Court's consideration.
Because liability had already been determined, on October 29, 2020, a trial ensued solely on the issue of damages, which necessarily also included a determination as to whether plaintiff, as a result of the accident, sustained a Serious Injury, as defined by Insurance Law § 5102(d).
Upon a review of all of the evidence submitted, including plaintiff's deposition testimony, her medical records, and reports from defendants' medical experts, the Court renders a verdict in plaintiff's favor finding that plaintiff's injuries, namely the disc herniations at C3-C7 and L1-L2, and the bulges with annular tears at L4-S1 are serious as defined by Insurance Law § 5102(d) because the foregoing injuries have caused plaintiff a "significant limitation of use of a body organ or member," and said injuries were caused by the instant accident in which the parties were involved.
Evidence at Trial
At trial, in her case-in-chief, plaintiff testified, in pertinent part, as follows: On February 8, 2017, at approximately 7:40AM, plaintiff was involved in an accident while operating her vehicle, a BMW, on her way to work. Plaintiff was a teacher at PS 55 in the Bronx. While driving on the Cross-Bronx Expressway, plaintiff was suddenly impacted in the rear by defendants' vehicle. Upon impact, plaintiff, who was wearing a seatbelt nonetheless lost contact with her seat. Although the seatbelt locked, plaintiff testified that she was nonetheless propelled forward. Plaintiff's chest struck the steering wheel and her head struck the windshield. Plaintiff's right knee also collided with the dashboard. Plaintiff immediately felt stiffness in her neck, pain in her lower back and numbness in her right knee. She remained inside the vehicle until she was removed from the vehicle by several EMTs who arrived on the scene. Plaintiff made immediate complaints of pain in her neck, lower back and right knee. She also testified that she had a bruise on her forehead where she had struck the windshield. She was then placed on a stretcher and inside the ambulance and taken to St. Barnabas Hospital.
At the hospital, plaintiff again complained of pain in her neck, lower back and right knee and also complained of a headache. Plaintiff testified that she was never examined at the hospital and that she was neither x-rayed nor given a CT Scan. Plaintiff was eventually given pain medication and discharged. Five days later, after consulting with an attorney, and because she was having difficulty with prolonged standing, climbing stairs, and opening windows, plaintiff was seen at a medical facility on Bailey Avenue . She was referred thereto by counsel.Plaintiff was initially seen by Dr. Alladin. She gave Dr. Alladin a history, stating that she had been involved in an accident and conveyed the same complaints she had given the hospital, adding that she had pain radiating down her right leg. Dr. Alladin examined plaintiff and prescribed physical therapy, chiropractic treatment and acupuncture.
This facility is, as per the records, Irfan Alladin MD PC.
Plaintiff underwent physical therapy, chiropractic treatment and acupuncture three times per week for approximately one and a half years. Dr. Alladin also ordered MRI studies of plaintiff's neck and back, the results of which indicated disc herniations. Because of the foregoing, and because plaintiff's pain continued, plaintiff then saw Dr. Winn, who discussed and then recommended that she undergo epidural injections. Dr. Winn indicated that the epidural injections could provide pain relief. Over the course of the next year, Dr. Winn administered three epidural injections, one to plaintiff's neck and two to her lower back. The epidural injections provided temporary relief. After the last injection, Dr. Winn indicated that ultimately plaintiff could require surgery. After plaintiff's last epidural in July 2018, other than speaking to Dr. Winn over the telephone several days prior to trial, plaintiff did not see any doctors for her injuries. With regard to present complaints, at the time of trial, plaintiff testified that she still had headaches, pain in her neck and lower back, and pain radiating down her right leg on a daily basis. She further testified that she could no longer run or ride a bike, which she had previously done often. Plaintiff also stated that she could no longer dance and had difficulty with prolonged standing and ambulating stairs.
Plaintiff also testified that she had been involved in a prior motor vehicle accident in 1999. As a result of that accident, she injured her lower back and underwent therapy for four months. Prior to the accident in 2017, plaintiff had been pain free.
Terrance Winn (Dr. Winn), a board certified interventional pain management doctor, testified, in pertinent part, as follows: In 2017, Dr. Winn was affiliated with a medical practice in the Bronx, where he saw patients twice a month. Dr. Winn and Dr. Alladin were the two interventional pain doctors at the practice and they mostly saw patients with neck and lower back pain. Although Dr. Winn saw plaintiff for the first time on April 24, 2017, upon his review of records, he testified that plaintiff was first seen at the foregoing practice by Dr. Alladin on February 13, 2017. At that time, per the records, plaintiff presented with complaints of headaches, pain in her neck, back and right knee. Dr. Alladin performed a physical examination, noting stiffness in plaintiff's neck and lower back. Dr. Alladin diagnosed plaintiff with cervical facet syndrome, lumbar sprain /strain, and ridiculitis. Dr. Alladin prescribed pain medication for inflammation and spasm and also prescribed physical therapy and chiropractic treatment.
On April 24, 2017, when Dr. Winn first saw plaintiff, she presented with complaints identical to those which she had previously conveyed to Dr. Alladin, relating the same to the motor vehicle accident. Dr. Winn examined plaintiff and noted sensory deficits in her right arm and leg. Dr. Winn did not check for any atrophy of plaintiff's extremities. However, he noted that leg raising testing in the supine position was positive on the left side at 40 degrees. Dr. Winn also reviewed MRI studies performed upon plaintiff and prescribed by Dr. Alladin. Said studies indicated that plaintiff had herniations in her lumbar spine at C3-C7 and bulges in her lumbar spine with annular tears at L4-S1. The studies also indicated that plaintiff had arthritis in her spine and had no nerve root impingement at the levels where she had herniations. Based on his examination, his review of MRI studies performed upon plaintiff, and her assertion that she had not derived much improvement from the therapy, Dr. Winn recommended an epidural injection to plaintiff's cervical spine. Dr. Winn hoped that the injection would alleviate or eliminate plaintiff's neck pain, which at the time was radiating down her arm. Dr. Winn performed the foregoing epidural injection on July 22, 2017. Thereafter, plaintiff indicated that she derived about 60 percent relief from the injection. On November 11, 2017, Dr. Winn administered another epidural injection to plaintiff's lower back. Plaintiff derived some relief from that injection and on July 18, 2018, Dr. Winn administered a second injection to plaintiff's lower back. Thereafter, plaintiff continued to have pain, leading Dr. Winn to conclude that surgery might be the only way to ameliorate plaintiff's pain.
Dr. Winn testified that he reviewed plaintiff's St. Barnabas' emergency room records, which indicated that after the accident, she complained of neck and lower back pain. The records did not note any complaints of head pain and indicated that plaintiff had a normal exam. The records further indicated that no x-rays or CT-Scans were performed. Dr. Winn also stated that plaintiff indicated to him that she had been involved in a prior accident in 1999 and that she had been asymptomatic since 2000. Dr. Winn noted that he reviewed MRI studies performed subsequent to the prior accident, which evinced bulges in plaintiff's spine at the levels where she now had herniations.Lastly, Dr. Winn testified that on May 22, 2017, plaintiff underwent NCV/EMG studies, which indicated that she had cervical ridiculitis. Based on his review of records, and his examination of plaintiff, Dr. Winn concluded that plaintiff's injuries were caused by the car accident in 2017. Dr. Winn further opined that the injuries were permanent, significant and consequential. Dr. Winn did not believe that the injuries sustained by plaintiff were related to the 1999 accident, because prior to the instant accident, plaintiff had been pain and symptom free for 17 years.
A review of plaintiff's medical records reveals the following:
The ambulance call report, dated February 8, 2017, indicates that at the scene of the accident, plaintiff complained of "neck and lower back pain." Moreover, plaintiff stated that while she was having pain "on her face under her right eye," her face never hit the steering wheel.
The St. Barnabas emergency room records indicate that upon arrival, plaintiff's only complaint was pain in her neck and lower back. A physical examination at the hospital indicated that plaintiff had mild tenderness to palpation in her lower back and neck. When tested, plaintiff's strength was five out of five in her extremities. Plaintiff was diagnosed with back and cervical strain, given care instructions, and was discharged.
Records from Irfan Alladin MD PC indicate that plaintiff was first seen thereat on February 14, 2017. She presented with complaints of neck pain with no radiation down her arms, headaches, lower back pain radiating down into her right leg, and right knee pain. Plaintiff indicated that these pains were secondary to a motor vehicle accident. It was noted that plaintiff was a full-time teacher and was working on the date she was seen. Plaintiff was examined and straight leg raising was 40 degrees on her left side and 50 on the right. Spasm was noted in her cervical and lumbar spine. Range of motion was measured and it was noted that rotation was five on the right and 40 in the left. Lumbar range of motion was also tested and it was noted that flexion was 60 degrees with pain and extension was five degrees with pain. Plaintiff was diagnosed with cervical and lumbar facet joint inflammation and knee pain. She was prescribed Mobic for inflammation and Amrix for spasms. Physical therapy was prescribed at a frequency of three times per week for four weeks.
Plaintiff was re-examined on March 27, 2017 and presented with the same complaints she conveyed previously. The results of an examination were substantially identical to the examination in February. Plaintiff's diagnosis remained unchanged. Physical therapy was to continue and x-rays were ordered. On April 24, 2017, plaintiff was re-examined. Her symptoms persisted and her examination that day yielded the same results as her prior two. Lumbar ridiculopathy was added to her list of prior diagnoses. In addition to the continuation of therapy, a cervical MRI was ordered to rule out herniations. Plaintiff was seen on May 22, 2017. Her complaints and examination were the same as on her prior visits. Her diagnosis remained the same and in addition to therapy, a bilateral cervical median branch block was prescribed. On August 21, 2017, plaintiff was again seen. Her complaints and examination were the same as on prior visits. However, cervical ridiculopathy was added to her list of diagnoses. It was noted that she had undergone a cervical epidural injection. Plaintiff's pain improved as a result in that it was 10 out of 10 prior to the injection and four out of 10 thereafter. This, it was noted, was an improvement of 60 percent. A second injection was recommended if her pain persisted. On October 19, 2017, after an examination during which plaintiff presented with the same complaints as on prior visits and where her examination yielded the same results as on prior occasions, her diagnoses remained the same. Beyond the continuation of therapy, an epidural injection to her lumbar spine was prescribed. On November 30, 2017, after an examination during which plaintiff presented with the same complaints as on prior visits and where her examination yielded the same results as on prior occasions, her diagnoses remained the same. Beyond the continuation of therapy, a second epidural injection to her lumbar spine was prescribed. On June 28, 2018, after an examination during which plaintiff presented with the same complaints as on prior visits and where her examination yielded the same results as on prior occasions, her diagnoses remained the same. Beyond the continuation of therapy, the second epidural injection to her lumbar spine previously prescribed was rescheduled for July 14, 2018. On August 3, 2020, plaintiff was examined once again at Accelerated Rehab And Pain Management, P.A. , and her complaints and examination were substantially the same as on all prior examinations. It was once again recommended that plaintiff reschedule the second lumbar epidural injection referenced in the note from her visit on June 28, 2018.
This appears to be an examination at Dr. Winn's office in NJ.
A report by Allan Whattenmaker (Dr. Wattenmaker), a chiropractor, dated February 22, 2017, indicates that plaintiff presented with complaints of neck pain radiating up and into her head, lower back pain radiating down her right leg, and sharp right knee pain. Plaintiff attributed the foregoing to a motor vehicle accident which occurred on February 8, 2017. Upon examining plaintiff, Dr. Wattenmaker found spasm in plaintiff's cervical and lumbar spine. Cervical range of motion testing indicated diminished range of motion in all planes. Flexion was 25 out of 50. The same was true for plaintiff's lumbar range of motion. Flexion was 20 out of 60. Dr. Wattenmaker diagnosed plaintiff with cervical disc disorder with ridiculopathy and lumbar ridiculopathy.MRI reports of studies performed upon plaintiff's cervical and lumbar spine on April 27, 2017 indicate disc herniations at C3-C7 with spinal stenosis and spondylosis, a disc herniation at L1-L2, and disc bulges with annular tears at L4-S1.
Reports of NCV/EMG studies performed upon plaintiff on May 22, 2017 indicate C6/C7 radiculopathy and no abnormal findings with regard to plaintiff's lumbar spine.
Three operative reports prepared by Dr. Winn indicate that on July 22, 2017, November 11, 2017, and July 14, 2018, plaintiff underwent three epidural injections, the first to her cervical spine for cervical ridiculopathy and the last two to her lumbar spine for lumbar ridiculopathy.
According to seven medical reports, plaintiff was examined by an acupuncturist, a chiropractor and two orthopedists. The foregoing reports appear to have been requested by and performed on behalf of Geico. On April 20, 2017, plaintiff was examined by Caroline Lyons (Dr. Lyons), a board certified acupuncturist. Plaintiff had full range of motion in her cervical and lumbar spine. A traditional Chinese medicine exam indicated that plaintiff's tongue was pale pink, with a thin white coating. Dr. Lyons noted that Qi and blood stagnation was resolving. Dr. Lyons diagnosed plaintiff with strain sprain of the cervical spine, which was resolving. Dr. Lyons recommended six weeks of acupuncture, two times per week. On April 25, 2017, plaintiff was examined by Eric Littman (Dr. Littman), a chiropractor. Upon examination, Dr. Littman noted no spasm and full range of motion in plaintiff's cervical and lumbar spine. Dr. Littman diagnosed plaintiff with cervical and lumbar sprains, which were resolving. Dr. Littman noted that plaintiff was working and could continue to do so. He also noted that there was no need for household help. Dr. Littman recommended that plaintiff continue with chiropractic care for an additional eight weeks, two times per week. On that same date, plaintiff was examined by Pierce Ferriter (Ferriter), an orthopedist. Upon examination, Dr. Ferriter found that cervical range of motion was diminished in two planes. Flexion was 40 out of 50 degrees. Right and left rotation was 70 out of 80 degrees. Similarly, lumbar range of motion was restricted in all planes. Flexion was 50 out of 60 degrees and extension was 20 out of 25 degrees. Dr. Ferriter diagnosed plaintiff with cervical strain and lumbar sprain, both of which were resolving. Dr. Ferriter also noted that plaintiff was working and could continue to do so. He recommended physical therapy for an additional six weeks, three times per week.
On September 27, 2017, plaintiff was examined by Howard Kiernan (Dr. Kiernan), an orthopedic surgeon. Upon examination, Dr. Kiernan found that cervical range of motion was diminished in all planes. Flexion was 45 out of 50 degrees. Extension was 20 out of 60 degrees. Similarly, lumbar range of motion was restricted in all planes. Flexion was 45 out of 60 degrees and extension was 20 out of 25 degrees. Dr. Kiernan diagnosed plaintiff with a cervical lumbar strain, both of which were resolving. He recommended physical therapy for an additional eight weeks, two times per week. Dr. Kiernan examined plaintiff an additional three times, the last of which was on June 20, 2018. Upon examination, he found the plaintiff was afflicted with the same limitations he noted on September 27, 2017. His diagnosis and recommendations were the same.
An MRI report of a study of plaintiff's cervical spine on September 22, 1999 indicates that she had disc bulges at C3-C7. An MRI report for a study of plaintiff's lumbar spine on October 12, 1999 indicates that she had disc bulges at L4-S1.
Defendants produced no witnesses at trial but did direct the Court's attention to the two reports from their medical experts. The first report is by Warren Cohen (Dr. Cohen), a neurologist. On September 28, 2018, Dr. Cohen examined plaintiff, who presented with complaints of neck and lower back pain. The pain did not radiate into her extremities. Dr. Cohen examined plaintiff, noting that her cervical and lumbar range of motion were normal in all planes. Cervical flexion was 50 degrees, 50 degrees constituting normal range. Cervical extension was 60 degrees, 60 degrees constituting normal range. Lumbar flexion was 60 degrees, 60 degrees constituting normal range. Lumbar extension was 25 degrees, 25 degrees constituting normal range. Dr. Cohen concludes that plaintiff had a normal examination, bereft of any evidence of neurologic impairment.
The second report is by Doodnauth Hiraman (Dr. Hiraman), an emergency medicine doctor, who chronicles his review of plaintiff's St. Barnabas hospital emergency room records. Dr. Hiraman states that the foregoing records indicate that plaintiff presented with complaints of neck, back and right knee pain. Upon examination, plaintiff had full strength in all extremities, but had pain with palpation in her cervical and lumbar spine. The records do not indicate that plaintiff had restrictions in her range of motion or that she had any bruising or swelling. The records are also bereft of any indication that diagnostic imaging studies were performed. Per the records, plaintiff was discharged without hospitalization. Based on the foregoing, significantly, the absence of imaging studies, restricted range of motion, or any swelling or bruising, Dr. Hiraman concludes that plaintiff's alleged injuries to her neck, back, head, and knee could not have been caused by the accident in question.
Standard of Review
It is well settled that "in a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" ( People v. McCoy , 100 AD3d 1422, 1422 [4th Dept 2012] ; see Ning Xiang Liu v. Al Ming Chen , 133 AD3d 644, 644 [2d Dept 2015] ). Moreover,
[a] judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations
( Gass v. Gass , 42 AD3d 393, 401 [1st Dept 2007] ). Absent conclusions that cannot be supported by any fair interpretation of the evidence, a judgment rendered after a bench trial should not be disturbed ( Saperstein v. Lewenberg , 11 AD3d 289, 289 [1st Dept 2004] ).
Burden of Proof
Generally, in an action for negligence the burden of proof is always rest with the plaintiff ( Rinaldi & Sons, Inc. v. Wells Fargo Alarm Serv., Inc. , 39 NY2d 191, 196 [1976] ; Spinneweber v. Every , 189 AD 35, 37 [3d Dept 1919] ; Baum v. New York & Q.C. Ry. Co. , 124 AD 12, 15 [2d Dept 1908] ), who must establish the same by a fair preponderance of the credible evidence (Rinaldi & Sons, Inc. at 196; Canonico v. Beechmont Bus Serv., Inc. , 15 AD3d 327, 328 [2d Dept 2005] ; Flores v. Dana's Superfix Auto Repairs, Inc. , 66 Misc 3d 131(A) [App Term 2019] ; Baumann v. Long Is. R.R., 110 AD2d 739 , 740 [2d Dept 1985] ). "[A] preponderance of the evidence means to prove that the fact is more likely than not to have occurred" (Matter of In re Beautisha B. , 115 AD3d 854, 854 [2d Dept 2014] ; People v. Giuca , 33 NY3d 462, 486 [2019] ). Significantly, if the evidence presented by the party bearing the burden of proof is equally balanced, then neither requisite burden nor the cause of action has been established (Rinaldi & Sons, Inc. at 196).
90/180
Based on the foregoing, the Court concludes that plaintiff has not sustained a serious injury pursuant to the non-permanent category of injury promulgated under Insurance Law § 5102(d), namely
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.
When a plaintiff claims that he has suffered a serious injury because he has sustained "a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment," besides the medically determined injury, he has to also demonstrate that he was indeed prevented from performing activities for at least 90 days and that the curtailment was to a great, rather than a slight, degree (Licari at 236). In order to satisfy his burden, a plaintiff must also tender medical evidence establishing that the restrictions alleged were medically indicated ( Grimes-Carrion v. Carroll , 17 AD3d 296, 297 [1st Dept 2005] ; Dabiere v. Yager , 297 AD2d 831, 832-833 [3d Dept 2002] ; Relin v. Brotherton , 221 AD2d 840, 841 [3d Dept 1995] ; Melino v. Lauster , 195 AD2d 653, 655 [1993], aff'd , 82 NY2d 828 [1993] ). Subjective complaints of occasional transitory headaches and dizziness do not qualify as a serious injury (Licari at 238-239). Furthermore, a claim pursuant to this section of the Insurance Law must be supported by objective medical evidence, detailing the injury and the limitations caused by such injury (Beaubrum v. New York City Transit Authority , 9 AD3d 259 [1st Dept 2004] ["Neither the chiropractor's affidavit nor plaintiff's evidence generally states any prescribed limitations set by any medical provider on any, let alone substantially all of the material acts which constitute plaintiff's usual and customary daily activities during such period" (internal quotation marks omitted).]; Kaplan v. Vanderhans , 26 AD3d 468, 469 [2d Dept 2006] ; Sainte-Aime v. Ho , 274 AD2d 569, 570 [2d Dept 2000] ; Arshad v. Gomer , 268 AD2d 450, 451 [2d Dept 2000] ). Indeed, a plaintiff's statement that activities were curtailed for the required degree and duration, without more, does not establish a serious injury under this category ( Cullum v. Washington , 227 AD2d 370, 371 [2d Dept 1996] ; Atamian v. Mintz , 216 AD2d 430, 430 [2d Dept 1995] ).
Here, assuming the Court credits all of the testimony proffered and all of the documentary evidence provided by plaintiff, she nevertheless fails to establish that she sustained a non-permanent injury under the instant category. First, her medical records are bereft of any indication that the restrictions alleged by her were medically indicated. To be sure, Dr. Winn never testified that the restrictions alleged by plaintiff - difficulty ambulating stairs, inability to stand for protracted periods of time, inability to dance, run, or ride a bicycle - were medically indicated. In other words, the law requires that the restrictions alleged be imposed upon the plaintiff by a medical doctor as the result of a medically determined injury (Grimes-Carrion at 297; Dabiere at 832-833; Relin at 841; Melino at 655). Here, while both Dr. Winn's testimony and the records submitted by plaintiff establish that she did sustain an injury as a result of the instant accident, the records are devoid of any medical retractions imposed by any doctors as a result thereof. Second, the record at trial is bereft of any evidence demonstrating that plaintiff's activities of daily living were curtailed to a great degree or for the required 90 day period. To be sure, while plaintiff testified that she had some difficulty ambulating stairs and with prolonged standing, she indicated that she only missed three days of work (five if you count the weekend subsequent to the accident). Indeed, plaintiff's ability to work, which is supported by all of the testimony and the seven reports memorializing medical examinations performed on behalf of Geico, is by itself sufficient to preclude recovery under this category of injury ( Hernandez v. Rodriguez , 63 AD3d 520, 521 [1st Dept 2009] ["Notably, plaintiff's bill of particulars provided that she was confined to bed and home for one week following the accident. In view of this finding, plaintiff's claim of serious injury under the 90/180—day category is dismissed as against all defendants."]; Copeland v. Kasalica , 6 AD3d 253, 254 [1st Dept 2004] [Court found that home and bed confinement for less than the prescribed period demonstrates a lack of serious injury under the 90/180 category.]; Robinson v. Polasky , 32 AD3d 1215, 1216 [4th Dept 2006] [Court found that plaintiff's failure to miss full days of work indicates the absence of serious injury under the 90/180 category.]; Burns v. McCabe , 17 AD3d 1111, 1111 [4th Dept 2005] [Court found that evidence that plaintiff missed only a week of school was prima facie evidence that his activities were not curtailed for the required duration.]; Parkhill v. Cleary , 305 AD2d 1088, 1090 [4th Dept 2003] ). In addition to the foregoing, the record is similarly devoid of any evidence describing what activities, beyond work, comprised plaintiff's day prior to the accident so as to allow the Court to determine what comprised plaintiff's customary daily activities. Without the foregoing, it is impossible to determine to what extent, if at all, the injuries alleged impacted those activities. Thus, plaintiff fails to meet the requisite burden of proof.
Permanent Consequential Limitation
Based on the evidence proffered at trial, the Court finds that plaintiff's injuries are not permanent such that she fails to establish that she sustained a "permanent consequential limitation of use of a body organ or member" under Insurance Law § 5102(d).
In order to establish a permanent consequential limitation of use of a body member or function, a plaintiff is required to "prove that his injury was both consequential and permanent" ( Countermine v. Galka , 189 AD2d 1043, 1045 [3d Dept 1993] ; Kordana v. Pomellito , 121 AD2d 783, 784 [3d Dept 1986] ). An injury is consequential if it is important ( Toure v. Avis Rent A Car Systems, Inc. , 98 NY2d 345, 353 [2002] ).
Here, while Dr. Winn testified that plaintiff's injuries are permanent, the Court discredits that portion of his testimony because it is belied by plaintiff's substantial gap in treatment. At trial, plaintiff testified that while she treated with Dr. Winn and Dr. Alladin from February 2017 through July 2018, after Dr. Winn administered a third epidural injection to her lumbar spine on July 14, 2018, she did not treat for her injuries at any point thereafter. Thus, here, as of the date of this trial, plaintiff has not treated for over two years.
Generally, an unexplained gap in medical treatment between treatment received shortly after the accident and treatment received long thereafter, or the complete cessation of treatment warrants dismissal of plaintiff's case ( Pommells v. Perez , 4 NY3d 566, 574 [2005] ; Brown v. City of New York , 29 AD3d 447, 448 [1st Dept 2006] ; Vasquez v. Reluzco , 28 AD3d 365, 366 [1st Dept 2006] ; Taylor v. Terrigno , 27 AD3d 316, 316-317 [1st Dept 2006] ; Rivera v. Benaroti , 29 AD3d 340, 342 [1st Dept 2006] ; Milazzo v. Gesner , 33 AD3d 317, 318 [1st Dept 2006] ; Colon v. Kempner , 20 AD3d 372, 374 [1st Dept 2005] ). Thus, when defendant establishes the existence of a gap in medical treatment, to avoid summary judgment, a plaintiff must offer a reasonable explanation for the gap in treatment (Pommells at 574; Brown at 448; Vasquez at 366; Taylor at 316-317; Rivera at 342; Milazzo at 318; Colon at 374). Generally, if the explanation for the gap in medical treatment is medical, plaintiff must proffer medical evidence ( Mercado-Arif v. Garcia , 74 AD3d 446, 447 [1st Dept 2010] ; Crespo v. Aparicio , 59 AD3d 384, 385 [2d Dept 2009] ; Farozes v. Kamran , 22 AD3d 458, 459 [2d Dept 2005] ; Ali v. Vasquez , 19 AD3d 520, 520 [2d Dept 2005] ; Hernandez v. Taub , 19 AD3d 368, 368 [2d Dept 2005] ). Alternatively, when the explanation for the gap in treatment is non-medical, such as the cessation of no-fault benefits, it can be established by the plaintiff (Mercado-Arif at 447; Jules v. Barbecho , 55 AD3d 548, 549 [2d Dept 2008] ; Francovig v. Senekis Cab Corp. , 41 AD3d 643, 644 [2d Dept 2007] ; Black v. Robinson , 305 AD2d 438, 439-440 [2d Dept 2003] ).
At trial, particularly here, in the absence of any motion for a directed verdict, the issue before the Court is not dismissal for the purported gap in treatment. Instead, here, the inquiry is what impact, if any, the wholesale cessation of treatment has on plaintiff's claim that her injuries are permanent. It stands to reason that people afflicted with a painful, persistent and permanent condition require regular medical care to, at the very least, manage their pain. In this case, the fact that plaintiff ceased treating and the record is bereft of any reason for such cessation leads the Court to conclude that plaintiff's injuries and any symptoms arising therefrom were insignificant and inconsequential after July 2018.
The Court further discredits plaintiff's testimony to the contrary. Indeed, at trial, plaintiff substantially diminished her credibility when she testified that despite being seat-belted at the time of impact, she nevertheless was propelled from her seat, striking the windshield with her head. Putting aside the near impossibility of such an event, the absence of any corroborating medical proof is fatal to plaintiff's assertion. To be sure, despite plaintiff's repeated assertion that she bruised her forehead as a result of the impact with the windshield, none of the medical records support her claim. Indeed, the St. Barnabas hospital records, where plaintiff was taken immediately after the accident and where one would expect to find some notation of the injury to plaintiff's forehead, are bereft of any indicia of injury to plaintiff's forehead. The records note no bruising, swelling or bleeding from plaintiff's forehead. In fact, as urged by defendants, plaintiff received no treatment consistent with a head injury such as the one described by plaintiff at trial. The hospital did not perform x-rays, CT-Scans or MRI studies. The only conclusion that this Court can draw from the foregoing, is that plaintiff did not testify truthfully about the foregoing, and instead, exaggerated her injuries. The foregoing propensity to exaggerate serves to discredit plaintiff's testimony that her injuries are permanent and that she was still in pain and afflicted thereby after July 2018. Thus, plaintiff fails to establish that she sustained a permanent injury.
Significant Limitation
Based on the evidence at trial, the Court concludes that plaintiff did sustain a "significant limitation of use of a body function or system" under Insurance Law § 5102(d) insofar as the record establishes that plaintiff sustained significant injuries to her neck and back as a result of the instant accident.
In an action for injuries arising from the operation of a motor vehicle, plaintiff must establish that the injuries alleged are the result of the accident claimed and that the limitations alleged are the result of those injuries ( Noble v. Ackerman , 252 AD2d 392, 394-395 [1st Dept 1998] ). Plaintiff's proof must be objective (Toure at 350; Grasso v. Angerami , 79 NY2d 813, 814-815 [1991] ; Blackmon v. Dinstuhl , 27 AD3d 241, 242 [1st Dept 2006] ; Thompson v. Abassi , 15 AD3d 95, 97 [1st Dept 2005] ; Shinn at 198; Andrews v. Slimbaugh , 238 AD2d 866, 867-868 [2d Dept 1997] ; Zoldas v. Louise Cab Corporation , 108 AD2d 378, 382 [1st Dept 1985] ), and must demonstrate the existence of a serious injury contemporaneous with the accident alleged (Blackmon at 242; Thompson at 98 [Court held that the failure by plaintiff's doctor to provide objective proof of injury contemporaneous with the accident was fatal and was not cured by the doctor's finding of injury, with objective evidence two and a half years later.); Nemchyonok v. Ying , 2 AD3d 421, 421 [2d Dept 2003] ; Pajda v. Pedone , 303 AD2d 729, 730 [2d Dept 2003] ; Jimenez v. Kambli , 272 AD2d 581, 583 [2d Dept 2000] ). Such contemporaneous medical evidence, can be an expert's designation of a numeric percentage of a plaintiff's loss of range of motion or "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 at 350; see also Perl v. Meher , 18 NY3d 208, 218 [2011] ["We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery."] ).
When a plaintiff claims that he has suffered a serious injury because he has sustained a "significant limitation of use of a body function or system," plaintiff must demonstrate that the injury alleged has limited the use of the afflicted area in a significant rather than a mild way ( Licari v. Elliot , 57 NY2d 230, 236 [1982] ). Thus, as a matter of law, mild, slight, or minor limitations are insignificant and insufficient to constitute a serious injury under this section of the insurance law ( id . at 236 ). Indeed, the word "significant" means that the injury is important and relates to medical significance (Toure at 353), which "involves a comparative determination of the degree or qualitative nature of an injury based on normal function, purpose and use of the body part" (id . at 353).
Here, as per the ambulance call report, subsequent to the instant accident, plaintiff made complaints of neck and lower back pain to the personnel at the scene. Per the St. Barnabas hospital records, she made similar complaints to the medical staff thereat, who upon examination found that she had pain on palpation in her cervical and lumbar spine. Thereafter, per the records from Dr. Alladin's office, on February 14, 2017, six days after the instant accident, plaintiff presented with the forgoing complaints and upon examination, it was noted that straight leg raising was restricted on her left side at 40 degrees, she had spasm in her cervical and lumbar spine, and that she had diminished range of motion in her cervical and lumbar spine. Cervical rotation was five on the right and 40 in the left. Lumbar flexion was 60 degrees with pain and extension was five degrees with pain. The records, including the seven reports by Geico's doctors, further indicate that the injuries were significant enough to warrant a protracted course of physical therapy, chiropractic care and acupuncture treatment. In fact, plaintiff testified that she underwent the foregoing course of treatment for over a year, a claim amply supported by the records.
In addition to the foregoing, Dr. Winn testified and the medical records evince that plaintiff underwent three epidural injections and that MRI studies performed upon plaintiff's spine indicated herniations at C3-C7 and L1-L2, and disc bulges at L4-S1 with annular tears. Dr. Winn testified that the foregoing injuries were significant, painful and the result of the instant accident.
Based on the foregoing, plaintiff credibly established the existence of a significant injury to her spine, contemporaneous with the instant accident, which caused her pain, required protracted and invasive treatment, and which was causally related to the instant accident. While defendants urge that the Court conclude that the instant injuries were pre-existing and unrelated to the instant accident, the Court remains convinced that the injuries alleged were the result of the accident. Significantly, while there is evidence that plaintiff was involved in a prior accident in 1999, the MRI studies resulting from the same do not show any herniations in the cervical spine or annular tears in the lumbar spine - the most serious injuries claimed here. Indeed, defendants' claims that the injuries here are the natural result of age related degeneration rather than trauma is wholly unsupported by any competent expert testimony. To be sure, "[w]here a factual issue 'transcends the realm of knowledge that lay persons possess', expert testimony is required ( Viacom Intern., Inc. v. Midtown Realty Co. , 193 AD2d 45, 55 [1st Dept 1993] ; Rosen v. Salem Truck Leasing, Inc. , 108 AD2d 907 [2d Dept 1985] ). It is certainly beyond cavil that whether an injury is traumatic in nature or the result of degeneration is beyond the ken of laymen, requiring an expert's opinion (see e.g., Linton v. Nawaz , 62 AD3d 434, 439 [1st Dept 2009], affd , 14 NY3d 821 [2010] ["Defendants did shift the burden, however, on the question of whether the injuries to plaintiff's cervical spine and left knee were caused by the accident. This they accomplished by submitting the affirmation of Dr. Eisenstadt, to the extent that it asserted that the abnormalities appearing on the MRIs of the cervical spine and left knee of those body parts were degenerative in nature and pre-existed the accident."] ).
Damages
Having determined that plaintiff's injuries are serious in that she sustained a "significant limitation of use of a body function or system" under Insurance Law § 5102(d), this Court holds that she is entitled to damages for her injuries in the amount of $50,000. This figure represents just and fair compensation for pain and suffering about which plaintiff was aware for a period of approximately 19 months - February 8, 2017 through July 18, 2018.
It is axiomatic that just as "one of the functions of the jur[y] in [any] case[,] [is] to translate the value of the [plaintiff's] injuries and of [ ] consequent pain and suffering into dollars and cents" ( Tate by McMahon v. Colabello , 58 NY2d 84, 87 [1983] ), a court presiding over a bench bears the isame function. Moreover, a prerequisite to any nonpercuniary loss is proof that the plaintiff be aware of the loss ( McDougald v. Garber , 73 NY2d 246, 255 [1989] ["With respect to pain and suffering, the trial court charged simply that there must be "some level of awareness" in order for plaintiff to recover. We think that this is an appropriate standard for all aspects of nonpecuniary loss."] ).
In determining an appropriate damages award, this Court applies the same reasoning applicable to post-trial motions pursuant to CPLR § 5501(c). Specifically, where a party seeks to set aside a jury verdict on grounds that the sums awarded were either insufficient or excessive, the guide is generally a review of jury awards in cases involving similar injuries. In those cases, of course, the court's method of review, to the extent that it seeks to assign amounts and monetary value to subjective non-economic injuries, can never produce mathematically precise results ( Donlon v. City of New York , 284 AD2d 13, 15 [1st Dept 2001] ). Instead, the analysis undertaken by the court is one of mixed questions of law and fact, requiring it "to determine what awards have been previously approved on appellate review and whether the instant award falls between those boundaries ( id . at 18 ). Notably, the court is not expected to reach its decision by comparing the case under review with its precise factual counterpart and instead, the court is free to use other cases with similar, but not necessarily identical, injures ( id . at 16 ). Indeed, "[c]ase comparison cannot be expected to depend upon factual identity. More often, analogous cases will be useful benchmarks" ( id . at 16 ).
The reason that reviewing other verdicts involving similar injuries is helpful in ascribing a proper value to claimed damages is because
[a] long course of practice, numerous verdicts rendered year after year, orders made by trial justices approving or disapproving them, decisions on the subject by appellate courts, furnish to the judicial mind some indication of the consensus of opinion of jurors and courts as to the proper relation between the character of the injury and the amount of compensation awarded
( Senko v. Fonda , 53 AD2d 638, 639 [2d Dept 1976] ). Additionally, the "[l]ong observation of the action of juries in cases of [similar] personal injury affords a clue to the judgment of ordinary men as to the compensation that should be made for pain and suffering"( id . at 639 ).
Here, a review of several cases with similar injuries indicates that $50,000 is an adequate award for plaintiff's pain and suffering over the course of 19 months. To be sure, in Hurtado v. 96 Dan Meat Market, Inc. D/B/A Dan's Supermarket (JVR No. 1908150047 [Supreme Court 2014] ), plaintiff, an adult female, suffered injuries, including lumbar disc herniations which resulted in lumbosacral neuritisradiculopathy, for which she received six epidural injections and was left with permanent injury, limited motion and pain in her lower back. The jury awarded plaintiff $40,000 for pain and suffering. In Portillo v. Franco (2011 WL 1562091 [Supreme Court 2008] ), plaintiff sustained a disc herniation at L5-S1 and as a result, underwent the administration of seven painkilling injections, including trigger-point and epidural injections, a disc-ablation procedure, in which a needle was inserted into her L5-S1 disc to heat the surrounding area, and physical therapy. As a result, the jury awarded her $100,000 in damages.
Here, while plaintiff's injuries are not permanent, she did sustain significantly greater injuries than the plaintiff in Hurtado , thereby warranting an award greater than $40,000. However, insofar as she did not have any operative procedures beyond the epidural injections, she is not entitled to the $100,000 awarded to the plaintiff in Portillo , who had a procedure, which is substantially more invasive. It is hereby
ORDERED that the Clerk enter a judgment in plaintiff's favor for $50,000, plus interest on that sum accruing since March 4, 2019. It is further
ORDERED that plaintiff serve a copy of this Decision and Order upon defendants within thirty (30) days hereof.
This constitutes this Court's decision and Order.