Opinion
Index EF003581/2017
03-19-2019
VALENTINO ASCOLESE, Plaintiff, v. INTERSTATE WASTE SERVICES, INTERSTATE WASTE SERVICES, INC., ACTION CARTING ENVIRONMENTAL SERVICES, INC, THE ACTION ENVIRONMENTAL GROUP, SHIELD ENGINEERING, INC. and MICHAEL J. SICKLES, Defendants.
Unpublished Opinion
DECISION& ORDER
Hon. Craig Stephen Brown, Justice
Defendants Interstate Waste Services, Inc. i/s/h/a Interstate Waste Services, Action Carting Environmental Services, Inc., The Action Environmental Group, Inc. i/s/h/a The Action Environmental Group and Michael J. Sickles move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing plaintiff's complaint on the grounds that the injuries claimed-by plaintiff Valentino Ascolese do not satisfy the serious injury threshold requirements of insurance law §5102(d).
The following papers were read:
Notice of Motion - Affirmation of Lindsie B. Alterkun, Esq. Annexed Exhibits - 1-3
Courtney J. Campbell, Esq. 's Affirmation in Opposition Annexed Exhibits- 4-5
Reply Affirmation of Lindsie B. Alterkun, Esq. Annexed Exhibits- 6-7
Courtney J. Campbell, Esq.'s Affirmation in Further Opposition 8
Upon the foregoing papers it is hereby ORDERED that the moving defendants' motion for summary judgment is granted to the extent that plaintiffs 90/180 day claim, significant disfigurement claim, and permanent loss of use of a body organ, function, or system claim are dismissed. All other requested relief is denied.
The instant personal injury action rises out of an accident which occurred on February 19, 2016 at Gino's Luncheonette at 180 Monhagen Avenue, Middletown, Orange County, New York. It is alleged that a 2006 Mack garbage truck operated by defendant Michael J. Sickles crashed into the wall of the luncheonette while plaintiff was operating a meat sheer at the sandwich counter. Plaintiff Valentino Ascolese, claiming serious injury as defined by the New York State Insurance Law, commenced this action on May 12, 2017.
Defendants have submitted in support .of their motion for summary judgment an affirmation from their expert orthopedist, Robert Hendler, M.D. Dr. Hendler examined the plaintiff on July 26, 2018 and reported that, "[I]t is my opinion that at the time of the accident of record he [plaintiff] may have sustained a cervical and lumbosacral sprain, with temporary exacerbation of pre-existing degenerative joint disease and degenerative disc disease in both the neck and back areas. Physical examination of his neck and back at this time failed to reveal any positive objective tests, such as a neurologic deficit, asymmetric reflex or decreased sensation in a dermatomal type pattern, that would clinically correlate with an ongoing herniated disc in the neck or low back, or a cervical or lumbar radiculopathy. Based on my physical examination, it is my opinion that there is no disability, and he will have no permanent findings in his heck or back that would be causally related to the accident of record. With regard to his right knee and right shoulder, it does not appear that he sustained any injury to these areas at the time of the accident of record. At the very most, he may have sustained possible contusions, which have resolved. He has pre-existing osteoarthritis in the right knee, and he is status quo ante in that regard. There is no present disability, and he will have no permanent findings in his right knee or right shoulder that would be causally related to the accident of record, With regard to his right elbow and right wrist, the clinical history is such that there is no documentation of any injury to his right wrist or right elbow at the time of the accident of record. I have carefully reviewed all the treatment records in the submitted medical file, and at no time did he ever give a history of having injured his right elbow or right wrist. The findings of carpal tunnel syndrome and ulnar neuropathy are secondary to peripheral neuropathy, which is not related to the accident of record. It is my opinion, with a reasonable degree of medical certainty, that the surgical procedure performed by Dr. DelSavio, although it may have been indicated, is not causally related to the accident of 2/19/16" (Affirmation of Robert C. Hendler, M. D., page 7).
Defendants have also submitted an affirmation from Kishore Ranade, M.D,, a Board Certified Neurologist. Dr. Ranade examined the plaintiff on August 15, 2018 and reported the following cervical and lumbar ranges of motion: "cervical flexion was 40 degrees (normal 40-50 degrees), extension was 30 degrees (normal 30-45 degrees), right rotation was 70 degrees, left rotation was 40 degrees (normal 70-90 degrees), right tilt was 30 degrees, left tilt was 30 degrees (normal 30r45 degrees), Lumbar flexion was 40 degrees (normal 70-90 degrees), extension 20 degrees (normal 20-30 degrees), left and right rotation was 50 degrees (normal 70-90 degrees), left and right tilt was 25 degrees (normal 30-45 degrees)...He had a linear surgical scar over the right wrist and behind the right medial epicondyle. Sensory exam revealed numbness in the right median distribution with a negative Tinel's sign" (Affirmation of Kishore Ranade, M.D,, page 2).
Dr. Ranade diagnosed the plaintiff with a cervical strain and a lumbar strain, Dr. Ranade concluded that, "He has no abnormalities on the neurological exam except for numbness in the right hand, indicative of carpal tunnel syndrome. It is unlikely that a twisting injury to his lower back would have caused the right carpal tunnel syndrome or a right ulnar neuropathy. It is more likely related to his job making sandwiches. There is no evidence of cervical or lumbar radiculopathy on my examination. The claimant is currently working eight hours a day at his deli in a supervisory role" (Affirmation of Kishore Ranade, M.D., page 5).
However, the plaintiff, in opposition to the motion for summary judgment, has submitted proof in admissible form that he sustained a serious injury. The plaintiff has submitted, inter alia, an affirmation from Harvey L. Seigel, M.D., a Board Certified Orthopedic Surgeon. Dr. Seigel examined the plaintiff on February 19, 2016. Dr. Seigel states that, "Examination of the cervical spine by goniometer and visual measurement reveals a diminished and painful range of motion as follows:
Flexion: 35 degrees. (60 degrees normal.)
Extension: 30 degrees. (75 degrees normal.)
Right rotation: 40 degrees. (80 degrees normal.)
Left rotation: 40 degrees. (80 degrees normal.)
Right lateral side bending: 15 degrees. (45 degrees normal.)
Left lateral side bending: 20 degrees. (45 degrees normal.)
[He complains of pain with extension.]
Careful palpation reveals tenderness in the midline and in the paraspinal musculature of the entire cervical spine" (Affirmation of Harvey C. Seigel, M.D., page 15). Further, "Examination of the thoracolumbar spine by goniometer and visual measurement reveals a diminished and painful range of motion as follows:
Flexion: 95 degrees. (110 degrees normal.)
Right rotation: 25 degrees, (30 degrees normal.)
Left rotation: 25 degrees, (30 degrees normal.)
Extension: 15 degrees. (25 degrees normal, )
Right lateral flexion: 20 degrees. (25 degrees normal, )
Left lateral flexion: 15 degrees. (25 degrees normal, )
[He complaints of pain with rotation and tilt to both sides.]
Careful palpation reveals tenderness in the midline or the thoracic spine and in the paraspinal musculature of the lower thoracic spine.
There is tenderness in the midline of the entire lumbar spine and in the paraspinal musculature of the lower lumbosacral spine. He can bend forward and bring his fingertips to within 15 inches of the floor" (Affirmation of Harvey C. Seigel, MD., pages 15-16).
In addition, Dr. Seigel affirmed that, "Examination of the shoulders by goniometer measurement reveals the following diminished and painful range of motion:
RIGHT:
LEFT:
Forward flexion:
150 degrees.
165 degrees. (180 degrees normal.)
Extension:
35 degrees.
50 degrees. (50 degrees normal.)
Abduction:
150 degrees,
150 degrees. (180 degrees normal, )
Adduction:
20 degrees.
30 degrees. (50 degrees normal.)
Internal rotation:
L3.
T11. (T8 to T10 normal).
External rotation:
80 degrees.
90 degrees. (90 degrees normal.)
[There is a loud click on right adduction. He complains of pain with right external rotation, abduction, and adduction.], .. Examination of the wrists by goniometer measurement reveals the following diminished range of motion:
RIGHT:
LEFT:
Flexion:
35 degrees.
50 degrees. (60 degrees normal.)
Extension:
60 degrees.
60 degrees. (60 degrees normal.)
Supination:
60 degrees.
65 degrees. (80 degrees normal.)
Pronation:
75 degrees.
75 degrees. (90 degrees normal.)
Radial Dev:
15 degrees.
15 degrees. (20 degrees normal.)
Ulnar Dev:
25 degrees.
30 degrees. (30 degrees normal.)
There is no swelling, or deformity. There is volar tenderness on the right. There is a 1.5 inch scar from carpal tunnel release.
Examination of the fingers' reveals decreased ROM of the right thumb in touching the fingers" (Affirmation of Harvey C. Seigel, M.D., pages 16-17).
Dr. Seigel concludes that, "In the accident of February 19, 2016, Mr. Valentino Ascolese suffered the following injuries with the noted disabilities and prognoses:
1. Cervical spine sprain/strain with aggravation of degenerative changes and a right sided
disc herniation at C5-6 with right sided cervical radiculopathy.
He had complaints of neck pain and radiating arm pain soon after the accident.
He has had extensive conservative treatment consisting of physical therapy and multiple injections and an ablation, all without lasting help,
He has had a positive MRI for disc herniation, and a positive EMG showing cervical radiculopathy.
Surgery remains a strong possibility.
He continues to have significant pain and needs to take high dose narcotics for relief.
His cervical spine condition is permanent, pain producing, and progressive.
His cervical spine disability is severe.
The prognosis for his cervical spine is poor.
2. Bilateral shoulder sprains.
He complained of shoulder pain right after the accident.
He has been treated with a prolonged course of physical therapy.
He continues to be symptomatic in the right shoulder, no longer having pain in the left shoulder.
His right shoulder condition is permanent and pain producing.
His right shoulder disability is mild.
The prognosis for his right shoulder is fair...
Right wrist sprain with consequent carpal tunnel syndrome, status post carpal tunnel release.
He continues to have neuropathic symptoms in the right hand in the median nerve distribution..
His right wrist condition is permanent and pain producing.
His right wrist disability is mild.
The prognosis for his right wrist is fair.
5. Lumbosacral spine sprain/strain with aggravation of degenerative changes with radiculopathy.
He had complaints of back pain and radiating leg pain soon after the accident.
He has had extensive physical therapy without lasting help.
He has had a positive EMG showing lumbar radiculopathy.
He continues to have significant pain and needs to take high dose narcotics for relief.
His lumbosacral spine condition is permanent, pain producing, and progressive.
His lumbosacral spine disability is moderate. .
The prognosis for his lumbosacral spine is only fair (Affirmation of Harvey C. Seigel, M.D., paragraphs 19-21).
The plaintiff also submitted an affirmation from Elliot G. Gross, M.D., a neurologist who had conducted an IME examination of the plaintiff. Dr. Gross affirmed that, "Briefly, the claimant was involved in a car accident and amongst his injuries including the neck and back was a causally related carpal tunnel syndrome, which I mentioned in my most recent report. The additional diagnostic testing I recommended was an EMG which was performed by Dr. Neudstadt, which is one of the records to review, which was done on 8/14/17. My report was on 5/9/17. Dr. Neustadt found that the claimant had a positive Tinel over the right median nerve at the wrist suggesting a right carpal tunnel syndrome. The ulnar nerve was equivocal. The EMG test that he performed showed a right carpal tunnel syndrome with significant prolongation of the right median motor and sensory latencies of the wrist which is consistent with a moderately severe carpal tunnel syndrome. The ulnar nerve was of dubious significance with a normal conduction velocity and some minimal latency delays. The EMG itself other than the nerve conduction studies mentioned above showed some degenerative disease in cervical segments but the EMG of the muscles of the median nerve were also involved. Therefore, in conclusion, the EMG supported the clinical diagnosis of a right carpal tunnel syndrome" (Affirmation of Elliott G Gross, M.D., paragraph 1). .
The plaintiff has proffered evidence which "raises issues of material fact as to whether he sustained a 'permanent consequential limitation of use of a body organ or member' or a significant limitation of use of a body function or system" (Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 352 [2002]; see also Trigg v. Gradischer, 6 A.D.3d 525 [2 Dept., 2004]; Fabiano v. Kirkovian, 306 A.D.2d 373 [2 Dept., 2003]; Pulo v. Schait, 302 A.D.2d 441 [2 Dept., 2003];.Negrete v. Hernandez, 2 A.D.3d 511 [2 Dept, 2003]; Paul v. Allstate Rentals, Inc., 22 A.D.3d 476 [2 Dept, 2005]; Collado v. Pineda, 31 A.D.3d 684 [2
Dept., 2006]: Yu v. C&A Seneca Construction, 40 A.D.3d 630 [2
Dept, 2007]). Accordingly, the defendants' motion for summary judgment dismissing plaintiffs claim of a significant or permanent consequential limitation of use must be denied (see also, Perez v. Vasquez, 71 A.D.3d 531 [1
Dept, 2010]).
Dept, 2007] citing D 'Alba v. Yong - AeChoi, 33 A.D.3d 650, 651, 823 N.Y.S.2d 423; Murray v. Hartford, 23 A.D.3d 629, 629-630, 804 N.Y.S.2d 416; see, also, Collazo v. Anderson, 103 A.D.3d 527 [1
Dept., 2013]. In addition, the record is devoid of evidence of any significant disfigurement or permanent loss of use of a body organ, function, or system. Thus, the portion of defendants' motion seeking the dismissal of these claims must be granted.
Finally, the "plaintiffs claim that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent, to the subject accident was unsupported by" the record (Irizarry v. Chen, 40 A.D.3d 925 [2
This matter is scheduled for a settlement conference on March 27, 2019 at 1:30 P.M.
The foregoing constitutes the Decision and Order of this Court.