Viola v. Lieberman

Full title: ALEXIS VIOLA Plaintiff, v. SANDRA R. LIEBERMAN and MICHAEL BABER…

Court: Supreme Court, Bronx County

Date published: Jan 12, 2022

2022 N.Y. Slip Op. 32208 (N.Y. Sup. Ct. 2022)

Opinion

Index No. 22512/2018e Motion Seq. Nos. 2 3

01-12-2022

ALEXIS VIOLA Plaintiff, v. SANDRA R. LIEBERMAN and MICHAEL BABER, Defendants.

Hon. Veronica G. Hummel, A.J.S.C.

Unpublished Opinion

DECISION/ORDER

Hon. Veronica G. Hummel, A.J.S.C.

In accordance with CPLR 2219 (a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in regard to the motion of defendant SANDRA R. LIEBERMAN [Mot. Seq. 2] and the motion of defendant MICHAEL BABER [Mot. Seq. 3], both made pursuant to CPLR 3212, seeking an order dismissing the complaint against defendants on the g round that plain tiff ALEXIS VI OLA (plaintiff) has not sustained a "serious injury" as defined by Insurance Law 5102(d).

This is a negligence action to recover damages for personal injuries that plaintiff allegedly sustained as a result of a motor vehicle accident that occurred on May 14, 2017, on FDR Drive and East 118^th Street, New York, N.Y. (the Accident). Plaintiff, who was approximately 21 years old at the time of the Accident, testified that he did not miss any time from work because of the Accident. Plaintiff underwent a lumbar epidural steroid injection on October 8, 2020.

Plaintiff alleges, in relevant part, that plaintiff suffered serious injuries to the thoracic spine and lumbar spine that satisfy the following Insurance Law 5102(d) threshold categories: permanent consequential limitation; significant limitation; and 90/180 days.

Defendants seek summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" under Insurance Law 5102(d). Defendants argue that plaintiff's claimed injuries are not "serious," and that any injuries or conditions from which plaintiff suffers are not causally related to the Accident. The underlying motions are supported by the pleadings, the bills of particulars, statements of material facts, the affirmations of attorneys, the parties' deposition transcripts, memorandum of law, plaintiff's medical records, and the expert affirmations/reports of Dr. Nason (orthopaedic surgeon), Dr. Payne (radiologist), and Dr. Diamond(radiologist).

Dr. Nason bases her opinion on the details of a physical examination of plaintiff conducted on September 17, 2020, approximately three years post-Accident. The expert reviewed the bills of particulars. The doctor performed range of motion tests on the thoracic spine and lumbar spine, all of which produced essentially normal results. The expert finds no significant restriction in range of motion and all objective tests are negative.

In the "Impression" section of the report, the expert describes the thoracic spine and the lumbar spine as "sprain-resolved". There is a normal examination of the bilateral knee. The expert opines that there is a cause and effect relationship between the injuries to the thoracic spine and the lumbar spine and the Accident. The doctor finds no orthopedic disability or limitation and concludes that plaintiff is capable of working without restrictions and can perform full employment without restrictions.

In his report, Dr. Payne reviews the July 2, 2017 (over a month post- Accident) MRI of plaintiff's lumbar spine. In terms of the lumbar MRI, the expert finds no fractures and bulging discs, some of which show herniations.

Dr. Diamond reviews the July 2, 2017, MRI of the thoracic spine. The expert finds disc dehydration loss and a prominence of posterosuperior nasopharyngeal soft tissues compatible with adenoidal hyperplasia. There is scoliotic curvature of the spine. The cord is otherwise unremarkable and there are no abnormalities in the thoracic spine.

Based on the submissions, defendants set forth a prima facie showing that plaintiff did not suffer a serious injury to the relevant body parts under the permanent consequential limitation and significant limitation categories (Stovall v N.Y.C. Transit Auth., 181 A.D.3d 486 [1st Dept 2020]; see Olivare v Tomlin, 187 A.D.3d 642 [1st Dept 2020]).

Plaintiff opposes the motion by submitting an attorney affirmation, a counter-statement of material facts, a personal affidavit, plaintiff's medical records, and the records/affirmations/reports of Dr. Payne, Dr. Monfett (orthopedic surgeon), and Dr. Lipson (neurologist). Of note, the records of Dr. Payne include the physician's review of a second MRI of plaintiff's lumbar spine which was taken on September 9,2020. Plaintiff does not oppose the parts of the defendants' motions that are directed to the 90/180 day category, and as such, the category is dismissed.

In total, plaintiff's evidence raises triable issues of fact as to the thoracic spine and the lumbar spine under the threshold categories of permanent consequential and significant limitation (Morales v Cabral, 177 A.D.3d 556 [1st Dept 2019]). Plaintiff's submissions demonstrate that plaintiff received medical treatment for the claimed injuries promptly after the Accident, and that plaintiff had substantial limitations in motion in the relevant body parts at the examinations immediately after the Accident, and more recently at the recent examination in October 2020 (see Perl v Meher, 18 N.Y.3d 208 [2011]). The MRIs taken soon after the Accident diagnosed plaintiff with injuries, including bulging discs in the lumbar spine. Plaintiff's expert opines that the Accident was the competent producing cause of the injuries. The expert opines that the plaintiff suffers from a decreased in range of motion that is significant, and that plaintiff suffered permanent injuries to the relevant body parts. The expert reviewed the records and opines that the injuries to the relevant body parts were caused by the Accident, and are permanent (see Morales v Cabral, supra; see Aquino v Alvarez, 162 A.D.3d 451, 452 [1st Dept 2018]). Under the circumstances, plaintiffs submissions generate a question of fact as to whether plaintiff suffered a serious injury under the threshold categories of permanent consequential limitation and significant limitation (see Smith v Green, 188 A.D.3d 473 [1^st Dept 2020]; see Bonilla v Vargas-Nunez, 147 A.D.3d 461 [1st Dept 2017]; Morales v Cabral, supra). Of course, if a jury determines that plaintiff has met the threshold for serious injury, it may award damages for any injuries causally related to the accident, including those that do not meet the threshold (Morales v Cabral, supra; Rubin v SMS Taxi Corp., 71 A.D.3d 548 [1st Dept 2010]).

The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby

ORDERED that the motion of defendant SANDRA R. LIEBERMAN [Mot. Seq. 2] and the motion of defendant MICHAEL BABER [Mot. Seq. 3], both made pursuant to CPLR 3212, that seek an order dismissing the complaint against defendants on the ground that plaintiff ALEXIS VIOLA (plaintiff) has not sustained a "serious injury" as defined by Insurance Law 5102(d) are denied.

The foregoing constitutes the decision and order of the court.