Opinion
INDEX NO. 152718/2018
09-08-2020
STEVEN ARMSTRONG Plaintiff, v. HORACIO MARMOLEJOS, Defendant.
NYSCEF DOC. NO. 47 MOTION DATE 08/05/2020 MOTION SEQ. NO. 002
DECISION AND ORDER
HON. ADAM SILVERA: The following e-filed documents, listed by NYSCEF document number (Motion 002) 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44 were read on this motion to/for SUMMARY JUDGMENT. Upon the foregoing documents, it is ORDERED that defendant Horacio Marmolejos' motion for summary judgment, pursuant to CPLR 3212 to dismiss plaintiff Steven Armstrong's Complaint is granted. Before the Court is defendant's motion for an Order pursuant to CPLR §3212 granting summary judgment in favor of defendant on the grounds that plaintiff has failed to demonstrate that plaintiff has suffered a "serious injury" as defined under Section 5102(d) of the Insurance Law. Plaintiff opposes the motion.
This matter stems from a motor vehicle incident which occurred on December 11, 2016, when plaintiff, a bicyclist allegedly sustained serious injuries as a result of an automobile accident with defendant's vehicle.
Defendant's motion, for summary judgment, pursuant to CPLR 3212, against plaintiff on the issue of "serious injury" as defined under Section § 5102(d) of the Insurance Law is granted. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure ... to do [so]" (Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).
In order to satisfy their burden under Insurance Law § 5102(d), a plaintiff must meet the "serious injury" threshold (Toure v Avis Rent a Car Systems, Inc., 98 NY2d 345, 352 [2002] [finding that in order establish a prima facie case that a plaintiff in a negligence action arising from a motor vehicle accident did sustain a serious injury, plaintiff must establish the existence of either a "permanent consequential limitation of use of a body organ or member [or a] significant limitation of use of a body function or system"]).
Defendant alleges that plaintiff has failed to demonstrate the existence of a "serious injury" as defined under Section 5102(d) of the Insurance Law. Defendant alleges that the injuries plaintiff is seeking relief for are not causally related to the underlying accident and is a result of degenerative changes. Defendant submits the Independent Medical Examination Report of Dr. Arnold T. Berman and Dr. Stephen W. Lastig (Mot, Exh F & G).
In his June 20, 2019, report, Dr. Berman opined based on his June 20, 2019 orthopedic medical evaluation of plaintiff, review of independent medical exams performed in 2017 by Dr. Antoinette Perrie, Steven A. Renzoni, and Dr. Michael D. Liebowitz in addition to a review of CT scans of plaintiff dated March 12, 2019 and x-ray reports dated December 11, 2016, that plaintiff "did not sustain any permanent injuries, and has no functional loss or disability as a result of the accident on 12/11/2016" (Mot, Exh F at 5-6). Dr. Berman found that plaintiff had a normal range of motion in the cervical spine, thoraco-lumbar spine, bilateral shoulders, bilateral hips, and bilateral knees (id., at 3-4). Dr. Berman noted that plaintiff has no residuals and no aggravation to multilevel discogenic disease in the lumbar spine and no aggravation to a prior total left hip replacement (id. at 5-6).
In his October March 12, 2019, independent radiology report Dr. Lastig reviewed CT study's dated December 11, 2016 of the right knee and lumbar spine, and opined that plaintiff suffers from degenerative disc disease and degenerative spondylosis and found no findings in the knee causally related to the underlying accident (Mot, Exh G). Thus, defendant has made a prima facie showing of entitlement to summary judgment on the issue of serious injury and the burden now shifts to plaintiff.
In opposition, plaintiff' fails to address defendant's claims of degenerative injuries. Plaintiff attaches chiropractor progress reports of Dr. Mark Heyligers who does not conclude that plaintiff's condition is causally related to the accident and in addition to not providing plaintiff's ranges of motion or the normal ranges of motion, the reports do not address defendant's claims of degeneration (Aff in Opp, Exh B). In Rosa v Delacruz, 32 NY3d 1060, 2018 N.Y. Slip Op. 07040 [2018], the Court of Appeals found that where a plaintiff's doctor opined that tears were causally related to the accident, but did not address findings of degeneration or explain why the tears and physical deficits found were not caused by the preexisting degenerative conditions, plaintiff failed to raise a triable issue of fact as it "failed to acknowledge, much less explain or contradict, the radiologist's finding. Instead, plaintiff relied on the purely conclusory assertion of his orthopedist that there was a causal relationship between the accident" (See id.) Here, plaintiff's physicians do not address degeneration and plaintiff's opposition has failed to raise an issue of fact as to defendant's assertion that plaintiff has not suffered a serious injury as a result of the accident. Further plaintiff's chiropractor did not list what the normal ranges of motion for plaintiff's alleged injured body parts are. The Appellate Division, First Department, has consistently held that "[t]he report of the doctor...is deficient because he...failed to indicate what the normal range of motion would be" (Nagbe v Minigreen Hacking Group, 22 AD3d 326, 327 [1st Dept 2005]). Thus, the Court deems Dr. Heyligers' report as deficient. Defendant has satisfied their burden and defendant's motion for summary judgment on the issue of "serious injury" as defined by Insurance Law § 5102(d) is granted.
Accordingly, it is
ORDERED that defendant's motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that within 30 days of entry, defendant shall serve a copy of this decision/order upon plaintiff with notice of entry.
This constitutes the Decision/Order of the Court. 9/08/2020
DATE
/s/ _________
HON. ADAM SILVERA JSC