Opinion
Index No. 712832/2018 Motion Seq. No. 2
09-28-2022
SUNGJA JUNG, Plaintiff, v. MARIO VALAREZO, Defendant.
Unpublished Opinion
Motion Date: 10/14/2021
Present HONORABLE SALLY E. UNGER Justice
DECISION AND ORDER
Sally E. Unger Judge:
The following electronically filed (EF) papers were read on this motion by defendant for an order granting summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law §§5104(a) and 5102(d).
NYSCEF Doc. Nos
Notice of Motion - Exhibits, Affirmation and Affidavit Annexed.................................................................. EF 23 - 39
Affirmation in Opposition......................................... EF 44 - 49
Reply Affirmation .................................................... EF 50
Upon the foregoing papers it is ordered that the motion is determined as follows:
Background
This is a personal injury action in which plaintiff seeks to recover damages for injuries she allegedly sustained as a result of a motor vehicle/pedestrian collision that occurred on May 21, 2018, in Queens County, New York. At the time of the incident, plaintiff was a pedestrian crossing the cross walk with a baby carriage when she was struck by defendant's motor vehicle. As a result of the collision, the plaintiff allegedly sustained serious physical injuries. Plaintiff commenced this action by the filing of a summons and verified complaint on August 20, 2018. In her bill of particulars, plaintiff alleges that she suffered injuries to her 1) cervical spine and lumbar spine, 2) right shoulder, 3) left knee, and 4) left ankle.
DISCUSSION
Whether a plaintiff has sustained a "serious injury" within the meaning of Insurance Law §5102(d) is initially a question of law for the court (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]). In the first instance, it is defendant's obligation to demonstrate that the plaintiff has not sustained a serious injury by submitting affidavits or affirmations of its medical experts who have examined the plaintiff and have found no objective medical findings which support the plaintiffs claim (see Toure v Avis Rent a Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]). Upon such a demonstration, the burden shifts to the plaintiff to show, through the production of admissible evidence sufficient to demonstrate the existence of a "serious injury", or at least that there are questions of fact as to whether plaintiff suffered such injury (see Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]).
Under the Insurance Law §5102(d), a "serious injury" is defined as one which results in, among others, (1) permanent loss of use of a body organ, member, function or system, (2) permanent consequential limitation of use of a body organ or member, (3) significant limitation of use of a body function or system or a medically determined injury or (4) impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that 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 (see Oberly v Bangs Ambulance Inc., 96 N.Y.2d 295, 727 N.Y.S.2d 378 [2001]).
In support of his motion, the defendant submits, among other things, pleadings, a bill of particulars, plaintiffs examination before trial (hereinafter "EBT") transcript, an examination report of Howard V. Katz, MD, a Board-Certified Orthopedic Surgeon, and an evaluation report of Darren Fitzpatrick, MD, a Board-Certified Radiologist.
On October 26, 2018, Dr. Fitzpatrick, conducted an independent radiological evaluation of plaintiff who evaluated the records five months after the collision. Dr. Fitzpatrick concluded that the plaintiffs injuries to the cervical spine, lumbar spine, and right shoulder were caused by degeneration, and that there was no evidence of traumatic injury, and they were not causally related to the incident.
On January 28, 2021, Dr. Katz conducted an independent orthopedic examination of plaintiff over two years after the incident. At the time of the examination, there were no authenticated medical records available for Katz's review. Dr. Katz opined that the alleged injuries to plaintiffs cervical spine, lumbar spine, right shoulder and left ankle were resolved, and the status of post left ankle surgery was healed. Further, he opined that the plaintiff is capable of seeking gainful employment without restrictions and that there was no evidence of orthopedic disability or residuals, or of permanency.
Based upon the review of Dr. Fitzpatrick's and Dr. Katz's reports, which will be discussed categorically herein, the Court finds that defendant has established his prima facie burden of showing that plaintiff did not sustain a serious injury within the meaning of the Insurance Law §5102(d) specific to plaintiffs cervical spine, lumbar spine, right shoulder and left ankle. However, the defendant failed to address plaintiff's alleged injury to her left knee and therefore failed to meet his prima facie burden with respect to her left knee injury.
The burden now shifts to plaintiff to establish the existence of a triable issue of material fact. In opposition, the plaintiff submits, among other things, a bill of particulars, an affirmation of Richard M. Seldes, MD, a Board-Certified Orthopedic Surgeon, her affidavit, and an unsworn, unaffirmed and uncertified MRI records from Sky Radiology dated October 11,2018, pertaining to plaintiff's left ankle, right shoulder, left knee, lumbar spine, and cervical spine. The Court finds said MRI records from Sky Radiology dated October 11,2018, are inadmissible, because they are not properly sworn, affirmed or certified (see Grasso v Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178 [1991]; Chanda v Varughese, 67 A.D.3d 947, 890 N.Y.S.2d 88 [2nd Dept 2009]; Magid v Lincoln Services Corp., 60 A.D.3d 1008, 877 N.Y.S.2d 12 [2nd Dept 2009]). However, a reference to plaintiff's unsworn or unaffirmed reports in the defendants' moving papers or by the defendants' medical experts, is sufficient to place such records before the Court and to permit the plaintiff to rely upon these reports in opposition to the motion (see Kearse v New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281 [2nd Dept 2005]; see also Ayzen v Melendez, 299 A.D.2d 381,749 N.Y.S.2d 445 [2nd Dept 2002]).
Permanent Loss of Use of Body Organ, Member Function or System
To qualify as a "serious injury" within the meaning of this category, "permanent loss of use" must be total (see Oberly v Bangs Ambulance Inc., supra', Nesci v Romanelli, 74 A.D.3d 765, 902 N.Y.S.2d 172 [2nd Dept 2010]). The evidentiary submissions demonstrate that plaintiff did not sustain a total loss of any body part or organ (id.). Plaintiff's expert did not find that she sustained a total loss of use of any of the body parts which she allegedly injured in the subject motor vehicle collision, plaintiff failed to establish that she sustained a "permanent loss of use of a body organ, member, function or system" (Nesci at 767).
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 plaintiffs condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiffs 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, 746 N.Y.S.2d 865 [2002], citing Dufel v Green, 84 N.Y.2d 795, 622 N.Y.S.2d 900 [1995]). Evidence of soft-tissue injuries alone is insufficient to establish a serious injury; there must be additional objective medical evidence establishing that the collision resulted in significant physical limitations (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]). For these two statutory categories, the NY Court of Appeals has held that "whether a limitation of use or function is 'significant' or 'consequential' (i.e., important . . .) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Toure at 353, quoting Dufel at 798).
Cervical Spine and Lumbar Spine
Defendant's expert, Dr. Katz provided a qualitative assessment and reported full range of motion (hereinafter "ROM") in plaintiffs cervical spine and lumber spine. Dr. Fitzpatrick reviewed plaintiff's post-accident MRI films of the cervical spine and lumbar spine performed by Sky Radiology and opined that the plaintiffs injuries to the cervical spine and lumbar spine were caused by degeneration, that there was no evidence of traumatic injury and they were not causally related to the incident. The court finds that the loss of ROM in plaintiffs cervical spine and lumbar spine were merely a minor limitation and should be classified as insignificant within the meaning of the no-fault statute (see Toure at 353; McLoud v Reyes, 82 A.D.3d 848, 919 N.Y.S.2d 32 [2nd Dept 2011]; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]). Accordingly, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact.
Plaintiffs submissions were insufficient to raise a triable issue of material fact to rebut the finding of the defendant's orthopedic surgeon and radiologist, i.e., that the injuries depicted in the MRI films of her lumbar spine and cervical spine were degenerative in nature and unrelated to the subject collision. Dr. Seldes did not address the findings of the defendant's radiologist pertaining to the degenerative nature of the plaintiffs cervical spine and lumbar spine. He concluded that, based upon a review of the uncertified MRI report, the subject injuries were caused by the collision and were not degenerative in nature. This conclusion was speculative and insufficient to raise a triable issue of fact as to the lumbar spine and cervical spine (see II Chung Lim at 951; Mensah v Badu, 68 A.D.3d 945, 892 N.Y.S.2d 428 [2d Dept 2009]).
Right Shoulder
Defendant's expert, Dr. Katz reported minor loss of ROM in plaintiffs right shoulder, i.e., flexion at 170 degrees (180 degrees normal), abduction at 170 degrees (180 degrees normal), adduction at 45 degrees (30 degrees normal), and external rotation at 80 degrees (90 degrees normal). Dr. Katz opined that there was no effusion or atrophy. He stated that the drawer test was negative.
Defendant's expert, Dr. Fitzpatrick reviewed plaintiff's post-accident MRI films of the right shoulder. He concluded that the plaintiffs injuries to the right shoulder were caused by degeneration, and that there was no evidence of traumatic injury. He further concluded that the injuries were not causally related to the accident.
In opposition, plaintiffs expert, Dr. Seldes failed to set forth in his affirmation any quantified ROM findings concerning plaintiffs right shoulder; nor did he provide a qualitative assessment of plaintiffs right shoulder (see Toure at 350). Therefore, plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injury to her right shoulder as a result of the incident at bar (see Shtesl v Kokoros, 56 A.D.3d 544, 867 N.Y.S.2d 492 [2nd Dept 2008]).
Left Knee
The defendant failed to address plaintiffs alleged injury to her left knee, and therefore failed to meet his prima facie burden with respect to her left knee injury. Since defendant failed to establish a prima facie case with regards to plaintiffs left knee, it is unnecessary to consider plaintiff's opposition with regards to plaintiff's left knee (see Smith v Rodriguez, 69 A.D.3d 605, 893 N.Y.S.2d 140 [2nd Dept. 2010]; Washington v Asdotel Enters., Inc., 66 A.D.3d 880, 887 N.Y.S.2d 623 [2nd Dept. 2009]).
Left Ankle
Defendant's expert, Dr. Katz provided a qualitative assessment and reported full ROM in plaintiffs left ankle. Dr. Katz further reported minor loss of ROM in plaintiffs left ankle, i.e., sub inversion at 20 degrees (30 degrees normal). He opined that the arthroscopic surgical scars were healed. There was no effusion or atrophy. He stated that the drawer test was negative.
In opposition, plaintiffs expert, on October 29, 2018, Dr. Seldes affirms that he performed an arthroscopic surgery to the plaintiffs left ankle and administered injections on August 18, 2018, and September 25, 2018. Upon Dr. Seldes's examinations on July 24, 2018, August 28, 2018, September 25, 2018, October 9, 2018, November 13, 2018, January 8, 2019 and on recent examination of August 11, 2021, plaintiff indicated that she could not perform daily activities normally because of the pain and stiffness after the subject accident. Dr. Seldes provided a qualitative assessment and reported loss of ROM of plaintiff left ankle. Dr. Seldes's affirmation revealed significant ROM limitations in plaintiffs left ankle, based on both contemporaneous and recent examinations. Dr. Seldes's affirmation raised an issue of fact as to whether plaintiff sustained a serious injury to her left ankle under the permanent consequential or significant limitation of use categories of Insurance Law §5102 (d). (see Shtesl v Kokoros, 56 A.D.3d 544, 867 N.Y.S.2d 492 [2nd Dept 2008]).
While there are triable issues of fact regarding whether the plaintiff sustained a serious injury to her left ankle, she is entitled to seek recovery for all injuries allegedly incurred as a result of the incident (see Insurance Law §5104[a]; see also Nussbaum v Chase, 166 A.D.3d 638, 87 N.Y.S.3d 120 [2nd Dept 2018]; Marte v NY City Tr. Auth., 59 A.D.3d 398, 871 N.Y.S.2d 921 [2nd Dept 2009]; Rizzo v DeSimone, 6 A.D.3d 600, 775 N.Y.S.2d 531 [2nd Dept 2004]). In the event plaintiff establishes at trial that she sustained a serious injury to her left ankle as a result of the subject accident, she will be entitled to seek damages for all of the injuries she sustained as a result of the accident (see Nussbaum at 639).
90/180 Category
Although this statutory category lacks the "significant" and "consequential" terminology of the two categories discussed above, a plaintiff must present objective evidence of a medically determined injury or impairment of a non-permanent nature" (see Insurance Law §5102 [d]; see also Toure at 357; Licari at 236-239).
Here, plaintiff failed to submit sufficient objective medical evidence to establish a qualifying injury or impairment (Toure at 357). While plaintiff testified that after the collision, she suffered pain while running, cooking or cleaning the house, sitting or lifting any heavy items, such testimony alone does not establish she suffered a serious injury under the 90/180 category (see Gaddy at 958; Lanzarone v Goldman, 80 A.D.3d 667, 915 N.Y.S.2d 144, [2nd Dept 2011]).
Conclusion
Accordingly, defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" is denied.
This constitutes the decision and order of the Court.