Opinion
15873/04.
Decided March 14, 2006.
Plaintiff commenced this action to recover for injuries sustained in a motor vehicle accident on August 9, 2001.
Defendant Hasan moves for summary judgment and dismissal of plaintiff's Complaint, arguing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Defendant presents the pleadings, plaintiff' Bill of Particulars, plaintiff's deposition testimony and defendant doctors' affirmations in support of his motion. Plaintiff's Bill of Particulars states that plaintiff sustained disc herniations at C3-C4, C4-C5, C6-C7, and L5-S1, sprains, strains, radiculopathy, knee contusions, and other injuries. Dr. Edward A. Toriello examined plaintiff and found that he had normal range of motion with resolved hyperextension injury, low back strain, right shoulder strain and right knee contusion. While Dr. Toriello acknowledged reviewing MRI reports, his objective specific tests led him to conclude plaintiff had no permanent serious injury. Dr. Edward M. Weiland examined plaintiff and found he had a normal neurological examination with resolved cervical and lumbosacral sprain/strain and a contusion to his right knee and shoulder that was not permanent nor caused any disability. Plaintiff testified that he was treated for his injuries after the accident until his No Fault benefits ran out. He presently has pain when he sits or bends for long periods of time. Plaintiff also has trouble lifting heavy items and mopping.
Defendants Rudy Harjanto and MINCPAC, Inc. submit an affirmation in support of defendant Hasan's motion and rely on the papers submitted by Hasan.
Plaintiff opposes defendant's motion, arguing that there are issues of fact that preclude summary judgment on the issue of "serious injury." Plaintiff presents the pleadings, his affidavit of merit, and medical reports in support of his opposition. Plaintiff states that he was badly injured in his neck, back, shoulder and knee after the accident. He could not return to his usual work part time and still continues to feel pain in his neck, back and shoulder. Plaintiff continues to have difficulty standing or sitting for long periods of time, bending or lifting items, walking long distances, and performing routine household duties. Plaintiff attaches his medical records, although the medical offices are no longer operating. The medical records show that plaintiff received treatment from various doctors after the accident until his No Fault benefits expired. Dr. Mark Shapiro performed MRI examinations and determined that plaintiff had disc herniations at L5-S1. Dr. Hal Gutstein recently examined plaintiff and used specific range of motion tests to determine that plaintiff continued to have decreased range of motion and permanent injury. Dr. Gutstein reviewed plaintiff's medical records and found plaintiff's present injuries to be consistent with previous treatment and findings and correlated with the accident.
Under the No Fault law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained. ( Licari v. Elliot, 57 NY2d 230.) In moving for summary judgment, the proponent must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. ( Alvarez v. Prospect Hospital, 68 NY2d 320; Winegrad v. New York Univ. v. Medical Center, 64 NY2d 851.) In the present matter, defendant has the burden of proving, by submitting competent evidence in admissible form, that plaintiff has not suffered a "serious injury." ( Lowe v. Bennett, 122 AD2d 728 [1st Dept. 1986], affirmed, 69 NY2d 701.) If a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of "serious injury." ( Licari, supra; Lopez v. Senatore, 65 NY2d 1017.)
Defendant presented a prima facie case of entitlement to summary judgment under Insurance Law § 5102(d) through review of plaintiff's Bill of Particulars, deposition testimony and defendant's medical evidence. ( See Ceglian v. Chan, 283 AD2d 536 [2nd Dept. 2001].) Plaintiff's Bill of Particulars states that he sustained disc herniations, sprains and strains that, in and of themselves, are not sufficient to establish a serious injury. ( See Descovitch v. Blieka, 279 AD2d 499 [2nd Dept. 2001].) Plaintiff's Bill of Particulars and deposition testimony do not present evidence of limitation of his daily activities for 90 out of the first 180 days after the accident. ( See Hernandez v. Balkhe, 6 AD3d 578 [2nd Dept. 2004].) Defendant's medical evidence also indicates that plaintiff's injuries were resolved and not permanent. Dr. Toriello and Dr. Weiland detailed specific tests they performed and determined plaintiff had full range of motion with no disabilities, which is sufficient to prove a prima facie entitlement to summary judgment despite the existence of MRI reports that demonstrate a disc bulge and herniations. ( See Meely v. 4 G's Truck Renting Co, Inc., 16 AD3d 26 [2nd Dept. 1/31/2005].)
However, plaintiff submitted sufficient evidence to rebut defendant's prima facie case. ( See Woods v. Yates, 201 AD2d 724 [2nd Dept. 1994].) Plaintiff's affidavit of merit was detailed and sufficiently demonstrated the injuries he sustained from the car accident and the medical treatment he received. Plaintiff specified the limitations in his daily activities both at work and home, which began only after the accident. Plaintiff also sufficiently explained the 3 year gap in treatment, as he was unable to afford medical services after his No Fault benefits had expired. Dr. Shapiro's MRI report demonstrates the presence of disc herniations that can constitute a serious injury when coupled with plaintiff's deposition testimony, affidavit of merit and other medical evidence. ( See McDowell v. Jia Ji Lin, 243 AD2d 613 [2nd Dept. 1997].) Dr. Gutstein's recent examinations also demonstrated that plaintiff continues to have restricted range of motion as a result of injuries sustained in the accident. ( See Toure v. Avis Rent-A-Car Systems, 98 NY2d 345.) Contrary to defendant's argument, Dr. Gutstein's opinion is not based solely upon plaintiff's unaffirmed medical records, but is also based upon his personal examination of plaintiff. Dr. Gutstein did not merely adopt the MRI findings, but set forth objective evidence of the extent and duration of plaintiff's physical limitations resulting from the disc injuries. ( See Silkowski v. Alvarez, 19 AD3d 476 [2nd Dept. 6/13/2005].) As plaintiff sufficiently presented objective evidence that his injuries were permanent and serious, summary judgment is not warranted. ( See Gaddy v. Eyler, 79 NY2d 955.)
Accordingly, defendant's motion for summary judgment is denied.