Opinion
No. 15-611269
08-24-2017
ERIC D. WILLIAMS, Plaintiff, v. COUNTY OF SUFFOLK, SUFFOLK COUNTY TRANSIT BUS and WES EDAN an employee of SUFFOLK COUNTY TRANSIT BUS, Defendants.
GRUENBERG KELLY DELLA Attorney for Plaintiff LAW OFFICE OF VINCENT D. McNAMARA Attorney for Defendants
Unpublished Opinion
MOTION DATE 5-24-17
ADJ. DATE 7-7-17
GRUENBERG KELLY DELLA Attorney for Plaintiff
LAW OFFICE OF VINCENT D. McNAMARA Attorney for Defendants
THOMAS F. WHELAN Justice of the Supreme Court
THOMAS F. WHELAN, JUDGE
Upon the following papers read on this e-filed motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers by defendants, uploaded April 12,2017; Notice of Cross Motion and supporting papers _; Answering Affidavits and supporting papers by plaintiff, uploaded June 30, 2017; Replying Affidavits and supporting papers by defendants, uploaded July 12, 2017; Other __: (and after hearing counsel in Support and opposed to the motion) it is, ORDERED that the motion by defendant County of Suffolk for summary judgment in its favor is granted.
This is an action to recover damages for injuries allegedly sustained, by plaintiff Eric Williams as a result of falling on a public bus on November 17,2014 on County Road 5R in Riverhead, New York. The bus was owned by defendant County of Suffolk, sued herein as County of Suffolk, Suffolk County Transit Bus and Wes Edan Plaintiff alleges that, as a result of the incident, he suffered serious injuries including disc herniations a partial tear of the proximal patellar tendon in his right knee, hypothesis, radiculopathy, and myofascitis.
Defendant seeks an order granting summary judgment dismissing plaintiffs complaint on the grounds that Insurance Law S 5104 precludes plaintiff from pursuing a personal injury claim because he did not suffer a "serious injury" within the meaning of Insurance Law S 5102 (d). Defendant submits, in support of the motion, copies of the pleadings; the transcripts of plaintiff s 50-h and deposition testimony; the medical reports of Dr. Noah Finkel, Dr. Raymond Shebairo, and Dr. Peter Chiu; the correspondence of chiropractor Christopher Ferrante; and various medical records. In opposition, plaintiff argues that issues of fact remain as to whether he suffered a significant limitation in the joint function of his cervical spine, lumbar spine, and right knee. Plaintiff submits, in opposition, a bill of particulars, various medical records, and the medical report of Dr. Daniel Korman.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320,508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr supra) Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckermnn v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]).
Insurance Law S 5102 (d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ member function or system; permanent consequential limitation of use of a body organ or member- significant limitation of use of a body function or system; or 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."
A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred by the No-Fault Insurance Law bears the initial burden of establishing, prima facie, that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [20021- Gaddy v Eyler 79 N.Y.2d 955,582 N.Y.S.2d 990 [1992]; Beltran v Powow Limo, Inc., 98 A.D.3d1070 951N.Y.S.2d231 [2d Dept 2012]). When such a defendants motion relies upon the findings of the defendants own witnesses those findings must be in admissible form, such as affidavits and affirmations and not unsworn reports, to demonstrate entitlement to judgment as a matter of law (see Brite v Miller 82 A.D.3d 811918 N.Y.S.2d 349 [2d Dept 2011]; Damas v Valdes, 84 A.D.3d 87, 921 N.Y.S.2d 114 [2dDept 2011], citing Pagano v Kingsbury, 182 A.D.2d 268,577 N.Y.S.2d 692 [2d Dept 19921]). Once a defendant meets this burden, the plaintiff must present proof, in admissible form, which raises a material issue of fact (see Gaddy v Eyler, supra; Zuckerman v City of New York, supra; Beltran v Powow Limo, Inc., supra).
A plaintiff claiming injury within the "permanent consequential limitation" or "significant limitation" of use categories of the statute must substantiate his or her complaints of pain with objective medical evidence demonstrating the extent or degree of the limitation of movement caused by the injury and its duration (see Schilling v Labrador, 136 A.D.3d 884, 25 N.Y.S.3d 331 [2d Dept 2016]; Rovelo v Volcy, 83 A.D.3d 1034,921 N.Y.S.2d 322 [2d Dept 2011]; McLoud v Reyes, 82 A.D.3d 848, 919 N.Y.S.2d 32 [2d Dept 2011]). To prove significant physical limitation, a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based on a recent examination or a sufficient description of the "qualitative nature" of plaintiff s limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose, and use of the body part (see Perl v Meher, 18 N.Y.3d 208,936 N.Y.S.2d 655 [2011]; Toure v Avis Rent A Car System,, Inc., supra; McEachin v City of New York, 137 A.D.3d 753, 25 N.Y.S.3d 672 [2d Dept 2016]). Proof of a herniated or bulging disc without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not sufficient to establish a "serious injury" within the meaning of the statute (see Pommells v Perez, 4 N.Y.3d 566,797 N.Y.S.2d 380 [2005]; Hayes v Vasilios, 96 A.D.3d 1010, 947 N.Y.S.2d 550 [2d Dept 2012]; Scheker v Brown, 91 A.D.3d 751,936 N.Y.S.2d 283 [2d Dept 2012]; Stevens v Sampson, 72 A.D.3d 793,898 N.Y.S.2d 657 [2d Dept 2010]; Catalano v Kopmann, 73 A.D.3d 963 900 N.Y.S.2d 759 [2d Dept 2010]; Casimir v Bailey, 70 A.D.3d 994,896 N.Y.S.2d 122 [2d Dept 2010]; Keith v Duval 71 A.D.3d 1093,898 N.Y.S.2d 184 [2d Dept 2010]). Likewise, the mere existence ofa tear is not a serious injury without objective evidence of the extent and duration of the alleged physical limitations resulting from the injury (see Bamundo v Fiero, 88 A.D.3d 831, 931 N.Y.S.2d 239 [2d Dept 2011]- Resek v Morreale 74 A.D.3d 1043,903 N.Y.S.2d 120 [2d Dept 2010]; Simanovskiy v Barbaro, 72A.D.3d 930 899 N.Y.S.2d 324 [2d Dept 2010]; Little v Locoh, 71 A.D.3d 837,897 N.Y.S.2d 183 [2d Dept 20101- Larson v Delgado 71 A.D.3d 739,897 N.Y.S.2d 167 [2d Dept 2010]). Sprains and strains are not serious injuries within the meaning of Insurance Law S 5102 (d) (see Rabott v Park, 50 A.D.3d 995,858 N.Y.S.2d 197 [2d Dept 2008]; Washington v Cross, 48 A.D.3d 457, 849 N.Y.S.2d 784 [2d Dept 2008]; Maenza v Letkajornoook 172 A.D.2d 500, 567 N.Y.S.2d 850 [2d Dept 1991]). Further, a plaintiff seeking to recover damages under the "90/180-day"" category of "serious injury" must prove the injury is "medically determined," meaning that the condition must be substantiated by a physician, and the condition must be causally related to the accident (see Pryce v Nelson, 124 A.D.3d 859, 2 N.Y.S.3d 214 [2d Dept 20151- Strenk v Rodas 111 A.D.3d 920,976 N.Y.S.2d 151 [2d Dept 2013]; Beltran v Powow Limo, Inc supra) A plaintiff must demonstrate that his or her usual activities were curtailed to a "great extent rather than some slight curtailment" (see Licari v Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570 [19821) Moreover a plaintiff who terminates therapeutic measures following an accident, while claiming "serious injury" must offer some reasonable explanation for having done so to prevail on his or her claim (see Ramkumrr v Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 976 N.Y.S.2d 1 [2013]; Pommelss v Perez, supra; David v Caceres, 96 A.D.3d 990,947 N.Y.S.2d 159 [2d Dept 2012]).
Defendantss submissions established a prima facie case that the alleged injuries to plaintiffs cervical spine lumbar spine and right knee do not constitute "serious injuries" within the meaning of Insurance Law S 5102 (d) (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra; Beltran v Powow Limo Inc supra) Through plaintiff s own deposition testimony that he missed only five days of work defendant established prima facie, that plaintiff did not suffer injury within the "90/180-day"" category of the statute (see Pryce v Nelson, supra; Strenk v Rodas, supra; Beltran v Powow Limo, Inc., supra). Additionally, defendant has presented competent evidence that none of plaintiff s alleged injuries fall under the "permanent consequential limitation," "permanent loss," or "significant limitation" of use categories of the statute (see Perl v Meher, supra; Schilling v Labrado,, supra; Rovelo v Volcy, supra).
Although the affirmed medical report of Dr. Finkel states, in relevant part, that plaintiff exhibited normal joint function of his cervical and lumbar spine, it fails to set forth the objective tests utilized to measure the joint function, such as through the use of a goniometer or inclinometer (see Black v Robinson 305 A.D.2d 438, 759 N.Y.S.2d 741 [2d Dept 2003]; Gamberg v Romeo, 289 A.D.2d 525, 736 N.Y.S.2d 64 [2d Dept 2001]; Junco v Ranzi, 288 A.D.2d 440, 733 N.Y.S.2d 897 [2d Dept 2001]; see also Bayk v Martin, 142 A.D.3d 484,35 N.Y.S.3d 923 [2d Dept 2016]; Schilling v Labrador, supra; Durand v Urick 131A.D.3d920 15 N.Y.S.3d 475 [2d Dept 2015]). Dr. Shebaiross report also fails to set forth the objective tests utilized to measure the joint function of plaintiff s spine and knee (see Bayk v Martin,, supra; Schilling v Labrador, supra; Durand v Urick, supra). The purported medical report of Christopher Fen-ante a chiropractor, is not in admissible form, as it is not sworn to before a notary (see Paul-Austin v McPherson 91 A.D.3d 924,937 N.Y.S.2d 627 [2d Dept 2012]; Vejselovski v McErlean, 87 A.D.3d 1062 929 N.Y.S.2d 760 [2d Dept 2011]; Casco v Cocchiola, 62 A.D.3d 640,878 N.Y.S.2d 409 [2d Dept 2009]; Rabolt v Park, supra; Sanchez v Romano, 292 A.D.2d 202, 739 N.Y.S.2d 368 [1st Dept 20021) Similarly the purported medical report of Dr. Petraco is not in admissible form as it is not sworn to or affirmed (see CPLR 2106; Pagano v Kingsbury, supra).
However the affirmed medical report of Dr. Chiu is sufficient to establish defendant's prima facie entitlement to summary judgment. Dr. Chiu's report states, in relevant part, that during his examination plaintiff exhibited normal joint function in his cervical spine, lumbar spine, and right knee. Dr Chiu also stated that no spasm or muscle atrophy was detected, but plaintiff exhibited mild tenderness upon palpation of his cervical and lumbar spine. Dr. Chiu diagnosed plaintiff as having suffered sprains to his cervical spine, lumbar spine, and right knee, and concludes that such sprains have resolved (see Brite v Miller, supra; Damas v Valdes, supra; Pagano v Kingsbury, supra). In addition, plaintiffs testimony demonstrates that he ceased treatment for his injuries approximately nine months after the subject accident without reasonable explanation (see Pommells v Perez, supra; Beltran v Powow Limo, Inc., supra).
Defendant having met his initial burden on the motion, the burden shifted to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, supra; Zuckermnn v City of New York, supra; Beltran v Powow Limo Inc supra Pagano v Kingsbury, supra). Plaintiff failed to raise an issue of fact as to whether his injuries'constitute "serious injuries." Although Dr. Korman found that plaintiff exhibited significant range of motion restrictions in his cervical and lumbar spine, his report fails to provide an explanation for plaintiff s gap in treatment from the cessation of treatment in August 2015 to his reexamination in June 2017 (see Ramkumrr v Grand Style Transp. Enters. Inc., supra; Pommells v Perez, supra; Strok v Chez, 57 A.D.3d 887 869 N.Y.S.2d 345 [2d Dept 2008]; Sapienza v Ruggiero, 57 A.D.3d 643,869 N.Y.S.2d 192 [2d Dept 2008]; Wei-San Hsu v Briscoe Protective Systems, Inc., 43 A.D.3d 916,842 N.Y.S.2d 455 2d Dept 2007V Hasner v Budnik, 35 A.D.3d 366, 826 N.Y.S.2d 387 [2d Dept 2006]). As plaintiffs submissions fail to offer a reasonable explanation for his cessation of treatmen,, he fails to rebut defendant's prima facie showing that he did not suffer a "serious injury" within the meaning of the statute (see Insurance Law § 5102 [d]; Perl v Meher, supra; Pommells v Perez, supra; Pryce v Nelson, supra).
Accordingly, defendant County of Suffolk's motion for summary judgment in its favor is granted.