Opinion
TS-300236/18
11-15-2018
Sonia AVILES, Plaintiff, v. Patrick MORGAN and Claribel Mercado, Defendants.
Plaintiff's Counsel: Sobo & Sobo, LLP Defendants' Counsel: Richard T. Lau & Associates
Plaintiff's Counsel: Sobo & Sobo, LLP
Defendants' Counsel: Richard T. Lau & Associates
Fidel E. Gomez, J.
In this action for personal injuries arising from an automobile accident, defendants move for an order granting them summary judgment and dismissing plaintiff's complaint on grounds that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d). Plaintiff opposes the instant motion asserting that defendants fail to establish prima facie entitlement to summary judgment and that questions of fact on the existence of a serious injury nevertheless preclude summary judgment.
For the reasons that follow hereinafter defendants' motion is granted.
Read together, the complaint and bill of particulars allege the following: On June 18, 2014, at or near the intersection of Pelham Parkway and NYS Thruway, Bronx, NY, plaintiff was involved in a motor vehicle accident. Specifically, it is alleged that plaintiff's vehicle came into contact with a vehicle owned by defendant PATRICK MORGAN and operated by defendant CLARIBEL MERCADO. Plaintiff alleges that defendants were negligent in the ownership and operation of their vehicle, said negligence causing her to sustain injuries. Plaintiff alleges to have sustained a host of injuries, the most serious being bulging discs at L3-L4, L4-L5, and L5-S1 and disc protrusions at C5-C6 and C6-C7. herniated disc at L3-L4. Plaintiff also alleges that she was confined to her home for two days following the instant accident. Plaintiff alleges that her injuries are serious under all categories of injury under the Insurance Law inasmuch, and to the extent relevant here, she sustained a (1) permanent consequential limitation of use of a body organ or member; (2) significant limitation of use of a body function or system; and/or (3) a medically determined injury or impairment of a non-permanent nature which prevented her from performing all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following her accident.
Defendants' motion for summary judgment is granted. On this record, defendants establish prima facie entitlement to summary judgment under the permanent categories of injury by tendering objective medical evidence demonstrating the absence of any injury, let alone a serious one and by establishing a significant gap in plaintiff's medical treatment. Defendants also demonstrate prima facie entitlement to summary judgment under the 90/180 non-permanent category of injury by tendering plaintiff's own pleading which demonstrate that in the 180 days following her accident, her activities of daily living were not curtailed to the requisite degree or for the required duration as well as her deposition testimony evincing the same. Indeed, at best, on this record, plaintiff missed 10 days of work. Nothing submitted by plaintiff raises an issue of fact sufficient to preclude summary judgment. Fatally, plaintiff's evidence, fails to establish the existence of any injury contemporaneously with the instant accident. Moreover, with regard to the permanent categories of injury inasmuch as no evidence submitted explains the gap in treatment. With respect to the 90/180 category, nothing submitted establishes the existence of a serious injury thereunder.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law ( Alvarez v. Prospect Hospital , 68 NY2d 320, 324 [1986] ; Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof ( Mondello v. DiStefano , 16 AD3d 637, 638 [2d Dept 2005] ; Peskin v. New York City Transit Authority , 304 AD2d 634, 634 [2d Dept 2003] ). Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562).
The Court's function when determining a motion for summary judgment is issue finding not issue determination ( Sillman v. Twentieth Century Fox Film Corp. , 3 NY2d 395, 404 [1957] ). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact ( Rotuba Extruders v. Ceppos , 46 NY2d 223, 231 [1978] ). When the existence of an issue of fact is even debatable, summary judgment should be denied ( Stone v. Goodson , 8 NY2d 8, 12 [1960] ).
Insurance Law § 5104(a), also known as the "no-fault law," by design and intent, severely limits the number of personal injury law suits brought as a result of motor vehicle accidents ( Licari v. Elliott , 57 NY2d 230, 236 [1982] ). Because any injury not falling within the statute's definition of "serious injury" is minor, it should not be accorded a trial by jury, and, therefore, "[i]t is incumbent upon the court to decide in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute" ( id. at 237 ).
A defendant seeking summary judgment on grounds that plaintiff's injuries are not serious under the Insurance Law must establish that plaintiff's injuries do not meet the threshold promulgated by the statute ( Franchini v. Palmieri , 1 NY3d 536, 537 [2003] ; Brown v. Achy , 9 AD3d 30, 31 [1st Dept 2004] ; Rodriguez v. Goldstein , 182 AD2d 396, 397 [1st Dept 1992] ).
With respect to the permanent categories of injury, a defendant can meet the requisite burden by submitting objective medical evidence negating the existence of a serious injury ( Black v. Robinson , 305 AD2d 438, 439 [2d Dept 2003] ; Junco v. Ranzi , 288 AD2d 440, 440 [2d Dept. 2001] ; Papadonikolakis v. First Fid. Leasing Group , 283 AD2d 470, 470-471 [2d Dept 2001] ), or by other evidence which demonstrates the absence of a serious injury ( Lowe v. Bennett , 122 AD2d 728, 729 [1st Dept 1986], affd 69 NY2d 700 [1986], such as plaintiff's own deposition testimony ( Arjona v. Calcano , 7 AD3d 279, 280 [1st Dept 2004] ).
With respect to objective medical evidence negating the existence of a serious injury, the tests relied upon must be specified within the doctor's medical report (Janco at 440), and what is required is "objective proof such as X-rays, MRIs, straight-leg or Laseque tests, and any other similarly-recognized tests or quantitative results based on...[an] examination" ( Grossman v. Wright , 268 AD2d 79, 84 [2d Dept 2000] ). Range of motion testing is an objective measure of the presence or absence of injury ( Kraemer v. Henning , 237 AD2d 492, 493 [2d Dept 1997] ; Zalduondo v. Lazowska , 234 AD2d 455, 455-456 [2d Dept 1996] ), and when used, the doctor must specify plaintiff's range of motion and compare the same to normal ( Bray v. Rosas , 29 AD3d 422, 423 [1st Dept 2006] [Court held that the failure of a defendant's doctor to quantify plaintiff's range of motion while concomitantly failing to compare the same to normal constituted a failure to establish prima facie entitlement to summary judgment "thereby leaving the court to speculate as to the meaning of those figures."]; Kelly v. Rehfeld , 26 AD3d 469, 470 [2d Dept 2006] ; Spektor v. Dichy , 34 AD3d 557, 558 [2d Dept 2006] ; Webb v. Johnson , 13 AD3d 54, 55 [1st Dept 2004] ). Notably, even if a defendant's doctor finds restricted range of motion upon examining the plaintiff, the same is not fatal when the doctor attributes the foregoing finding to a cause unrelated to the accident alleged ( Style v. Joseph , 32 AD3d 212, 214 n [1st Dept 2006] ). Similarly, a minor restriction in range of motion upon a defendant's medical examination of the plaintiff is not fatal ( Camilo v. Villa Livery Corp. , 118 AD3d 586, 586 [1st Dept 2014] ; Tuberman v. Hall , 61 AD3d 441, 441 [1st Dept 2009] ).
Once a defendant establishes that a plaintiff has not suffered a serious injury, summary judgment is warranted unless plaintiff can establish the existence of a serious injury. To that end, plaintiff must establish that the injuries alleged are the result of the accident claimed and that the limitations alleged are the result of those injuries ( Noble v. Ackerman , 252 AD2d 392, 394-395 [1st Dept 1998] ). Plaintiff's proof establishing serious injury, medical or otherwise, must not only be admissible, but it must also be objective ( Toure v. Avis Rent A Car Systems, Inc. , 98 NY2d 345, 350 [2002] ; Grasso v. Angerami , 79 NY2d 813, 814-815 [1991] ; Blackmon v. Dinstuhl , 27 AD3d 241, 242 [1st Dept 2006] ; Thompson v. Abassi , 15 AD3d 95, 97 [1st Dept 2005] ; Shinn at 198; Andrews v. Slimbaugh , 238 AD2d 866, 867-868 [2d Dept 1997] ; Zoldas v. Louise Cab Corporation , 108 AD2d 378, 382 [1st Dept 1985] ). Plaintiff's proof must also demonstrate the existence of a serious injury contemporaneous with the accident alleged (Blackmon at 242; Thompson at 98 [Court held that the failure by plaintiff's doctor to provide objective proof of injury contemporaneous with the accident was fatal and was not cured by same doctor's finding of injury, with objective evidence, two and one half years later.); Nemchyonok v. Ying , 2 AD3d 421, 421 [2d Dept 2003] ; Pajda v. Pedone , 303 AD2d 729, 730 [2d Dept 2003] ; Jimenez v. Kambli , 272 AD2d 581, 583 [2d Dept 2000] ). Such contemporaneous medical evidence, however, can be an expert's designation of a numeric percentage of a plaintiff's loss of range of motion or "an expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Toure at 350; see also Perl v. Meher , 18 NY3d 208, 218 [2011] ["We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery."] ). Additionally, in order to raise an issue of fact as to the existence of a serious injury the medical evidence presented must include a recent examination of the plaintiff at which the injuries are objectively established ( Bent v. Jackson , 15 AD3d 46, 48 [1st Dept 2005] ; Thomson v. Abassi , 15 AD3d 95, 97 [1st Dept 2005] ; Grossman v. Wright , 268 AD2d 79, 84 [2d Dept 2000] ).
An unexplained gap in treatment which renders any conclusion as to causation speculative, warrants summary judgment in defendant's favor ( Pommells v. Perez , 4 AD3d 101,102 [1st Dept 2004] ["We note that the record is devoid of admissible evidence demonstrating that plaintiff sustained a serious injury in 1998, when the accident occurred. Given the absence of such evidence, the conclusion of plaintiff's neurologist, made after a January 2002 physical examination, that plaintiff's injuries are ‘causally related to the history as stated,’ is plainly insufficient to demonstrate a causal connection between the accident and plaintiff's injuries."], affirmed Pommells v. Perez , 4 NY3d 566 [2005] ; Shinn v. Cantanzaro , 1 AD3d 195, 199-200 [1st Dept 2003] ; Vaughan v. Baez , 305 AD2d 101, 102 [1st Dept 2003] ; Arrowwood v. Lowinger , 294 AD2d 315, 316 [1st Dept 2002] ; Bandoian v. Bernstein , 254 AD2d 205, 206 [1st Dept 1998] ; Barclay v. Rad Cab Corp., 9 Misc 3d 137(A), *1 [App Term 2005] ). With regard to gaps in treatment between an accident an initial treatment, such gaps are fatal to a plaintiff's burden since they render any diagnosis speculative. To be sure, in both Shinn and Pommells , the medical evidence substantiating the injury came after an initial gap in treatment ( Pommells , 4 AD3d at 101-102 ; Shinn at 199-200). In those cases medical treatment prior to the gap either yielded no injury or there was no treatment prior to the gap and thus, the courts holdings therein stand for the proposition that if the only medical evidence submitted is an examination occurring some substantial time after the accident claimed, any opinion linking the findings of said examination to the accident claimed is speculative and fails to raise an issue of fact as to serious injury ( Pommells , 4 AD3d at 101-102 ; Shinn at 199-200).
An unexplained gap in medical treatment between treatment received shortly after the accident, treatment received long thereafter, or the complete cessation of treatment warrants dismissal of plaintiff's case ( Pommells v. Perez , 4 NY3d 566, 574 [2005] ; Brown v. City of New York , 29 AD3d 447, 448 [1st Dept 2006] ; Vasquez v. Reluzco , 28 AD3d 365, 366 [1st Dept 2006] ; Taylor v. Terrigno , 27 AD3d 316, 316-317 [1st Dept 2006] ; Rivera v. Benaroti , 29 AD3d 340, 342 [1st Dept 2006] ; Milazzo v. Gesner , 33 AD3d 317, 318 [1st Dept 2006] ; Colon v. Kempner , 20 AD3d 372, 374 [1st Dept 2005] ). Thus, when defendant establishes that existence of a gap in medical treatment, to avoid summary judgment, a plaintiff must offer a reasonable explanation for the gap in treatment (Pommells at 574; Brown at 448; Vasquez at 366; Taylor at 316-317; Rivera at 342; Milazzo at 318; Colon at 374). Generally, if the explanation for the gap in medical treatment is medical, plaintiff must proffer medical evidence ( Mercado-Arif v. Garcia , 74 AD3d 446, 447 [1st Dept 2010] ; Crespo v. Aparicio , 59 AD3d 384, 385 [2d Dept 2009] ; Farozes v. Kamran , 22 AD3d 458, 459 [2d Dept 2005] ; Ali v. Vasquez , 19 AD3d 520, 520 [2d Dept 2005] ; Hernandez v. Taub , 19 AD3d 368, 368 [2d Dept 2005] ). Alternatively, when the explanation for the gap in treatment is non-medical, such as the cessation of no-fault benefits, it can be established by the plaintiff (Mercado-Arif at 447; Jules v. Barbecho , 55 AD3d 548, 549 [2d Dept 2008] ; Francovig v. Senekis Cab Corp. , 41 AD3d 643, 644 [2d Dept 2007] ; Black v. Robinson , 305 AD2d 438, 439-440 [2d Dept 2003] ). A gap in treatment is not relevant to nor dispositive in an action concerning serious injury under the 90/180 category ( Gonzalez v. Ceesay , 19 Misc 3d 136(A) [App Term 2008] ; Gomez v. Ford Motor Credit Co. , 10 Misc 3d 900, 904 [Sup Ct 2005] ).
In order to establish prima facie entitlement to summary judgment under the 90/180 non-permanent category of serious injury, the law prescribes a different burden. Generally, a defendant must provide medical evidence establishing the absence of injury during the relevant time period - first 180 days subsequent to the accident ( Sayers v. Hot , 23 AD3d 453, 454 [2d Dept 2005] ; Buford v. Fabrizio , 8 AD3d 784, 786 [3d Dept 2004] ; Lowell v. Peters , 3 AD3d 778, 780 [3d Dept 2004] ). As such, medical evidence consisting of examinations conducted years after the accident are not probative as to the injuries sustained within the first 180 days after an accident and do not, in it of themselves, entitle a defendant to summary judgment with regard to the foregoing category ( Toussaint v. Claudio , 23 AD3d 268, 268 [1st Dept 2005] ; Pijuan v. Brito , 35 AD3d 829, 829 [2d Dept 2006] ; Webb v. Johnson , 13 AD3d 54, 55 [1st Dept 2004] ; Loesburg v. Jovanovic , 264 AD2d 301, 301 [1st Dept 1999] ). Alternatively, a defendant can establish prima facie entitlement to summary judgment with regard to 90/180 category by citing to evidence, such as a plaintiff's own testimony, and/or bill of particulars demonstrating that the plaintiff was not prevented from performing all of the substantial activities constituting plaintiff's customary daily activities for the prescribed period ( Hernandez v. Rodriguez , 63 AD3d 520, 521 [1st Dept 2009] ["Notably, plaintiff's bill of particulars provided that she was confined to bed and home for one week following the accident. In view of this finding, plaintiff's claim of serious injury under the 90/180—day category is dismissed as against all defendants."]; Copeland v. Kasalica , 6 AD3d 253, 254 [1st Dept 2004] [Court found that home and bed confinement for less than the prescribed period demonstrates a lack of serious injury under the 90/180 category.]; Robinson v. Polasky , 32 AD3d 1215, 1216 [4th Dept 2006] [Court found that plaintiff's failure to miss full days of work indicates the absence of serious injury under the 90/180 category.]; Burns v. McCabe , 17 AD3d 1111, 1111 [4th Dept 2005] [Court found that evidence that plaintiff missed only a week of school was prima facie evidence that his activities were not curtailed to the required duration.]; Parkhill v. Cleary , 305 AD2d 1088, 1090 [4th Dept 2003] ). Once defendant meets his burden plaintiff must come forward with competent medical evidence demonstrating that as result of the accident alleged, plaintiff was unable to perform substantially all of his activities of daily living for not less than 90 of the first 180 days after the accident ( Ponce v. Magliulo , 10 AD3d 644, 644 [2d Dept 2004] ; Sainte-Aime v. Ho , 274 AD2d 569, 570 [2d Dept 2000] ).
A defendant can establish entitlement to summary judgment with regard to all categories of serious injury by negating causation, meaning by the tender of evidence establishing that the injuries alleged are not related to the accident at issue ( Pommells v. Perez , 4 NY3d 566, 573-574 [2005] ; Franchini at 537; Marsh v. City of New York , 61 AD3d 552, 552 [1st Dept 2009] ; Kaplan v. Vanderhans , 26 AD3d 468, 469 [2d Dept 2006] ; Giraldo v. Mandanici , 24 AD3d 419, 419-420 [2d Dept 2005] ). Once defendant establishes the foregoing, a plaintiff's failure to rebut a defendant's prima facie showing that the injuries sustained by plaintiff pre-dated the accident or were caused by some other event or condition warrants dismissal of the action (Franchini at 537 ["Plaintiff's submissions were insufficient to defeat summary judgment because her experts failed to adequately address plaintiff's preexisting back condition and other medical problems."]; Marsh at 552; Kaplan at 469; Giraldo at 420).
Notably, the court in Linton v. Nawaz (62 AD3d 434 [1st Dept 2009] affd , 14 NY3d 821 [2010] ) held, despite the foregoing cases, that where a defendant's assertion to negate causation is evidence of degeneration and/or a preexisting condition based solely on the review of plaintiff's imaging studies, a plaintiff sufficiently raises an issue of fact by merely submitting a medical affirmation from an examining doctor containing an opinion causally relating the injuries alleged to the accident giving rise to the suit ( id. at 443 ). Specifically, the court stated
[d]efendants' sole competent evidence in favor of summary judgment was a doctor's opinion that plaintiff's injuries pre-existed the accident. Plaintiff submitted the affirmation of a treating physician, based on a physical examination performed within days of the accident, opining that the injuries were caused by the accident. There is no basis on this record to afford more weight to defendants' expert's opinion and there are no ‘magic words’ which plaintiff's expert was required to utter to create an issue of fact. If anything, plaintiff's expert's opinion is entitled to more weight. Moreover, that opinion constituted an unmistakable rejection of defendants' expert's theory. ( id. at 443 ).
In rejecting the magic word rule, however, it is clear that the court in Linton was only doing so in cases where causation was negated via a medical affirmation supported solely by a review of radiological films, which the court deemed unpersuasive (id. at 441). In fact, the court cited cases such as Becerril v. Sol Cab Corp. (50 AD3d 261 [1st Dept 2008] ) and Brewster v. FTM Servo, Corp. (44 AD3d 351 [1st Dept 2007] ) with approbation, noting that these cases involved plaintiffs who were undisputedly involved in a prior accident in which the same body parts were injured but [who] failed to address why the prior accidents were not a possible cause of their current symptoms (Linton at 442).
Thus, where a defendant's evidence establishes that the injuries alleged are causally unrelated to an accident because they can be traced to a prior accident, to avoid summary judgment, plaintiff's doctor must specifically address that contention and relate the injuries alleged to the accident giving rise to the suit (Becerril at 261-262 ["Notably, plaintiff conceded at his deposition that he sustained injuries to his neck and back in a prior accident, and an MRI conducted shortly after the subject accident showed degenerative disc disease. In these circumstances, it was incumbent upon plaintiff to present proof addressing the asserted lack of causation."]; Brewster at 352 ["Brewster conceded at his deposition that he had sustained injuries to his neck, back and shoulder in a prior automobile accident. Once a defendant has presented evidence of a preexisting injury, even in the form of an admission made at a deposition, it is incumbent upon the plaintiff to present proof to meet the defendant's asserted lack of causation. Brewster's submissions totally ignored the effect of his previous mishap on the purported symptoms caused by the latest accident. The fact that Hernandez's expert discerned some minor loss of motion in Brewster's lumbar spine is irrelevant where the objective tests performed by this physician were negative, and Brewster had testified to a preexisting injury in that part of his body" (internal citations omitted).] ).
In support of their motion, defendants submit plaintiff's medical records from Jacobi Hospital. Said records indicate that on June 18, 2014, plaintiff received treatment secondary to an automobile accident. The records further indicate that plaintiff presented with complaints of neck and back pain. A physical examination performed upon plaintiff yielded no midline tenderness, some bilateral paravertebral tenderness in the cervical and thoracic spine and full range of motion.
Defendants also submit a sworn report from Arnold T. Berman (Berman), an orthopedic surgeon, who details an examination he performed upon plaintiff on November 9, 2017 and offers opinions derived therefrom. Plaintiff presented with complaints of pain in her neck and low back secondary to a motor vehicle accident on June 18, 2014. Plaintiff's cervical spine exhibited full range of motion in all planes (flexion was 50 degrees, 50 degrees constituting normal range of motion). Plaintiff's lumbar spine also yielded full range of motion in all planes (flexion was 60 degrees, 60 degrees constituting normal range of motion). Straight leg testing was positive, producing mild but non-ridicular pain. Plaintiff also had full range of motion in her knees (extension was zero degrees bilaterally, zero degrees constituting normal). Based on his examination, Berman opines that plaintiff had no injuries and that there were no objective findings to support plaintiff's subjective complaints. Upon a review of MRI studies performed upon plaintiff's cervical and lumbar spine, Berman concludes that all injuries indicated therein are degenerative in nature and preexisted the accident alleged.
Defendants also submit plaintiff's deposition transcript wherein she testified, in pertinent part, as follows: at the time of the instant accident, namely June 18, 2014, plaintiff was employed as a Registered Nurse. Immediately after the accident, she was driven to the hospital by her brother. She was treated, released and asked to follow-up with her own doctor. A few days later she reported to Crystal Run, a medical facility, where was examined and given medication. That same month, plaintiff also saw her Primary Care Physician, Ram Pam (Pam). Plaintiff then received no medical treatment for four to five months because she thought the pain would improve on its own. In September 2014, plaintiff resumed treatment at Dolson Medical. Plaintiff saw Doctors Peralo and Dassa, underwent therapy and diagnostic testing and also received an epidural injection. Plaintiff performed therapy from October through January 2015 at which point, because "the hours were not conducive," and "the weather started getting bad," she ceased treatment and did exercises at home. As a result of the accident, plaintiff missed 10 days of work, which days were not consecutive.
Based on the foregoing, defendants establish prima facie entitlement to summary judgment.
First, with respect to the permanent category of serious injury, insofar as a defendant establishes the absence of a serious injury by submitting objective medical evidence negating the existence of a serious injury (Black at 439; Junco at 440; Papadonikolakis at 470-471), here, defendants satisfy their burden with Berman's sworn report insofar as he affirms that after examining, plaintiff years after the accident and employing objective medical tests, such as range of motion testing (Grossman at 84; Kraemer at 493; Zalduondo at 455-456), plaintiff had no injury to her cervical and lumbar spine, shoulders or knees. To the extent that Berman finds that straight leg testing produced mild back pain, the same is not fatal since he states the same was mild and non-ricular. Notably, even if a defendant's doctor finds restricted range of motion upon examining the plaintiff, the same is not fatal when the doctor attributes the foregoing finding to a cause unrelated to the accident alleged ( Style v. Joseph , 32 AD3d 212, 214 n [1st Dept 2006] ). Similarly, a minor restriction in range of motion upon a defendant's medical examination of the plaintiff is not fatal ( Camilo v. Villa Livery Corp. , 118 AD3d 586, 586 [1st Dept 2014] ; Tuberman v. Hall , 61 AD3d 441, 441 [1st Dept 2009] ).
Second, since it is well settled that an unexplained gap in medical treatment between treatment received shortly after an accident and treatment received long thereafter, warrants dismissal of a plaintiff's case (Pommells at 574; Brown at 448; Vasquez at 366; Taylor at 316-317; Rivera at 342; Milazzo at 318; Colon at 374), here, with plaintiff's testimony that after January 2015 she received no further treatment for the injuries claimed defendants also establish prima facie entitlement to summary judgment with respect to the permanent categories of serious injury for this additional reason.
Lastly, to the extent that a defendant can establish prima facie entitlement to summary judgment with regard to 90/180 category with evidence, such as a plaintiff's own bill of particulars demonstrating that the plaintiff was not prevented from performing all of the substantial activities constituting plaintiff's customary daily activities for the prescribed period (Hernandez at 521; Copeland at 254; Robinson at 1216; Burns at 1111; Parkhill at 1090), here, plaintiff's bill of particulars sufficiently satisfies defendants' burden because plaintiff alleges home and bed confinement for a period of only two days; substantially short of the 90 days prescribed by law. Moreover, since a defendant can also establish prima facie entitlement to summary judgment with regard to 90/180 category by citing to evidence, such as a plaintiff's own testimony demonstrating that the plaintiff was not prevented from performing all of the substantial activities constituting plaintiff's customary daily activities for the prescribed period (Copeland at 254; Robinson at 1216; Burns at 1111; Parkhill at 1090), here, defendants' meet their burden by tendering plaintiff's deposition transcript. Significantly, plaintiff testified that she missed only 10 days of work as a result of this accident.
Notably, defendants attempt to negate the causation so as to warrant entitlement to summary judgment fails. To be sure, a defendant can establish entitlement to summary judgment with regard to all categories of serious injury by negating causation, meaning by the tender of evidence establishing that the injuries alleged are not related to the accident at issue (Pommells at 573-574; Franchini at 537; Marsh at 552; Kaplan at 469; Giraldo at 419-420). However, it is equally true that "it is reversible error to permit an expert witness to offer testimony interpreting diagnostic films such as X-rays, CAT scans, PET scans, or MRIs, without the production and receipt in evidence of the original films thereof or properly authenticated counterparts" ( Wagman v. Bradshaw , 292 AD2d 84, 87 [2d Dept 2002] ). Stated differently, opinion testimony submitted in support of summary judgment must be supported by the record and such record must be in admissible form ( Uddin v. Cooper , 32 AD3d 270, 272 [1st Dept 2006] ["Inasmuch as he relied on unsworn medical reports from such period, they were hearsay and thus not probative of the issue."]; Vishnevsky v. Glassberg , 29 AD3d 680, 681 [2d Dept 2006] ["The plaintiffs also relied upon the affirmations of Dr. St. Hill, who impermissibly relied upon the unsworn reports of another doctor. Therefore, the plaintiffs may not rely on Dr. St. Hill's affirmation to defeat the motion for summary judgment."] ).
Here, defendant's assertion that plaintiff's injuries are degenerative and/or related to another accident is substantially based on either evidence not submitted to this Court or submitted to the Court in inadmissible form. To be sure, Berman's opinion that plaintiff's injuries are generative and, thus, unrelated to this accident is based on his review of MRI studies performed upon plaintiff's cervical and lumbar spine. However said films and/or the reports upon which Berman relies were not submitted to the Court and, are, thus, not part of the record. Similarly, the records evincing prior injury to the plaintiff - purportedly to the same body parts alleged here - are not submitted to the Court in admissible form.
Nothing submitted by plaintiff raises an issue of fact with regard to the gap in medical treatment and the curtailment of her activities of daily living so as to preclude summary judgment.
To be sure, in opposition to the instant motion, plaintiff submits a two sworn medical affirmations by Gabriel L. Dassa (Dassa), an orthopedic surgeon, who details two examinations he performed upon plaintiff - the first on September 2, 2014 and the second on April 8, 2018. To the extent relevant none of the reports explain plaintiff's gap in medical treatment subsequent to January 2015.
Preliminarily, with regard to all categories of injury, plaintiff fails to submit contemporaneous evidence of injury sufficient to raise an issue of fact sufficient to preclude summary judgment. As noted above, plaintiff's proof must demonstrate the existence of a serious injury contemporaneous with the accident alleged (Blackmon at 242; Thompson at 98; Nemchyonok at 421; Pajda at 730; Jimenez at 581). Here plaintiff's opposition consists of two reports from Dassa, the first of which indicates that she was seen by him on September 2, 2014, almost three months after the instant accident. Thus, plaintiff's opposition fails to establish contemporaneous evidence of injury and defendants' motion must be granted for that reason alone.
With regard to the permanent category of injury, when defendant establishes that existence of a gap in medical treatment, to avoid summary judgment, a plaintiff must offer a reasonable explanation for the gap in treatment (Pommells at 574; Brown at 448; Vasquez at 366; Taylor at 316-317; Rivera at 342; Milazzo at 318; Colon at 374). If the explanation for the gap in medical treatment is medical, plaintiff must proffer medical evidence (Mercado-Arif at 447; Crespo at 385; Farozes at 459; Ali at 520; Hernandez at 368). Alternatively, when the explanation for the gap in treatment is non-medical, such as the cessation of no-fault benefits, can be established by the plaintiff (Mercado-Arif at 447; Jules at 549; Francovig at 644; Black at 439-440).
Here, one version of plaintiff's explanation for her cessation of treatment in January 2015 is non-medical in that she alleges that she stopped treating because of inconvenience and the weather. These reasons, however, are not legally cognizable and thus insufficient to defeat summary judgment. To the extent that plaintiff also testified that she exhausted her no-fault benefits, she provides no corroborating proof in support of the foregoing assertion. Accordingly, she fails to establish a legally cognizable explanation for the gap and/or the cessation of medical treatment. With respect to the 90/180 category of serious injury, plaintiff submits no evidence on that issue whatsoever. Indeed, once defendant meets the burden of negating a serious injury under the 90/180 category, a plaintiff must come forward with competent medical evidence demonstrating that as result of the accident alleged, plaintiff was unable to perform substantially all activities of daily living for not less than 90 of the first 180 days after the accident (Ponce at 644; Sainte-Aime at 570). Here, instead of alleging an inability to perform almost all activities of daily living for at least 90 days within the first 180 days after this accident - as required by prevailing law - plaintiff only points to her own deposition testimony, which, here, supports summary judgment in defendants' favor. To be sure, plaintiff testified the only missed 10 days of work; woefully short of the 90 days required by law.
Notably, the Court finds no merit to plaintiff's assertion that, here, she never stopped treating because she continued to perform exercises and/or therapy at home and on her own. This, of course is not medical treatment, and the fact that plaintiff was and is a nurse does not make it so.
Nor does the Court find any merit to plaintiff's assertion that defendant's failure to address plaintiff's claim that she sustained damages in excess of her basic economic loss is fatal to their burden. It is true that when a plaintiff seeks damages for economic loss in excess of basic economic loss, such claim is independent of any claim premised on a serious injury and the failure by a defendant to seek summary judgment on such claim requires preservation of that claim irrespective of whether a motion on the issue of serious injury is otherwise granted ( Martin v. LaValley , 144 AD3d 1474, 1477 [3d Dept 2016] ; Clark v. Farmers New Century Ins. Co. , 117 AD3d 1208, 1209 [3d Dept 2014] ). Here, however, although plaintiff pleaded such item of damages, upon a search of the record, beyond a conclusory assertion in her bill of particulars, such claim is unsupported and defendant's motion is treated as if the foregoing relief was sought and is granted (Clark at 1209 ["As plaintiff argues, recovery of damages for economic loss in excess of basic economic loss does not require proof of a serious injury. Nonetheless, searching the record, we find that plaintiff failed to plead or produce evidence supporting this claim."] [internal citations omitted] ).
Lastly, that Berman failed to address EMG/NCV studies performed upon plaintiff in his report is also not fatal to defendants' burden. To be sure, the First Department once held that a defendant whose expert fails to address objective tests performed upon a plaintiff fails to establish prima facie entitlement to summary judgment ( Nix v. Yang Gao Xiang , 19 AD3d 227, 227 [1st Dept 2005] ; Onishi v. N & B Taxi, Inc. , 51 AD3d 594, 595 [1st Dept 2008] ). However, it is clear that the foregoing is only true when defendant's doctors fail "to address not only MRI reports indicating herniated discs but other evidence of serious injury as well" ( Onishi v. N & B Taxi, Inc. , 51 AD3d 594, 596 [1st Dept 2008]. Moreover, it now appears that the First Department sides with the Second, holding that a "defendants' expert [is] not required to specifically address the diagnostic findings in plaintiff's medical records" in order to meet its prima facie burden ( Levinson v. Mollah , 105 AD3d 644 [1st Dept 2013] ; Robinson v. Joseph , 99 AD3d 568 [1st Dept 2012] ["Contrary to plaintiff's contention, it was unnecessary, for defendants to meet their prima facie burden, for their experts to specifically address the positive diagnostic findings within plaintiff's medical record."]; see Kearse v. New York City Tr. Auth. , 16 AD3d 45, 50 [2d Dept 2005] ["Thus, the failure of a defendant's medical expert to address the findings contained in MRI reports reviewed as part of his or her examination is academic in the face of that expert's finding of a full range of motion and a lack of disabilities causally related to the motor vehicle accident."] ).
Here, while Berman's report is bereft of any evidence that he reviewed the NCV/EMG studies at issue, he nevertheless reviewed other evidence negating serious injuries - such as MRI studies - and further found the absence of serious injury via objective testing. Thus, such failure is not fatal. It is hereby
ORDERED that the complaint be dismissed with prejudice. It is further
ORDERED that defendants serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty (30) days hereof.
This constitutes this Court's decision and Order.