Opinion
Index 514927/2018
10-31-2021
SALMA AZIZ and SABRINA AZIZ, Plaintiffs, v. FRIENDLY TRANSIT, INC., ABDULMAJEED N. MALAHIE, INC., and CLAUDIUS L. CAMPOS, Defendants.
Unpublished Opinion
DECISION/ORDER
PETER P. SWEENEY, J.S.C.
Upon the following e-filed documents, listed by NYSCEF as item numbers 42-56, 60-66, the motion is decided as follows:
Defendants FRIENDLY TRANSIT INC., and ABDULMAJEED N. MALAHIE seek an Order pursuant to CPLR § 3212 granting summary judgment dismissing plaintiffs' complaint on the ground that they failed to sustain a serious injury as defined within the meaning of Insurance Law § 5102 (d).
Salma Aziz
Plaintiff SALMA AZIZ alleges that as a result of the motor vehicle accident that occurred on June 5, 2018, she sustained injuries to the cervical and lumbar spine, herniated discs at C4-5 and C5-6, straightening of the lumbar spine, lumbar radiculopathy, right hip pain and whiplash. Plaintiff alleges that her injuries were "serious" under the permanent loss of use, permanent consequential limitation, significant limitation and 90/180-day categories of Insurance Law § 5102(d).
In support of the motion, defendants submitted the transcript of plaintiff's deposition testimony, the affirmed expert reports of an orthopedic surgeon, J. Serge Parisien, M.D., and a radiologist, Mark J. Decker, M.D. Based upon his independent medical examination of Salma on October 17, 2019, including goniometer testing, he opined there was no objective evidence of disability or permanency to any of her alleged injuries.
Plaintiff testified at deposition that the day after the accident, she took the day off from work.
Dr. Decker reviewed an MRI of the plaintiff's Cervical Spine dated October 5, 2018 and opined that the disc herniations evident at C4-C5 and C5-C6 were long-standing and not the result of the accident.
In opposition, plaintiff provided an affirmation from Mark Kostin, M.D who examined Salma on April 16, 2021. Using a goniometer, Dr. Kostin conducted range of motion testing of both Salma's lumbar and cervical spine. With respect to her cervical spine, he found as follows:
Flexion: 60 degrees (90 normal)
Extension: 50 degrees (70 normal)
Right Bending: 30 degrees (45 normal)
Left Bending: 35 degrees (45 normal)
Right Rotation: 30 degrees (90 normal)
Left Rotation: 40 degrees (90 normal)
With respect to her lumbar spine, he found as follows:
Flexion: 45 degrees (80 normal)
Extension: 20 degrees (30 normal)
Right Flexion: 20 degrees (30 normal)
Left Flexion: 25 degrees (30 normal)
Bending Right: 30 degrees (45 normal)
Bending Left: 35 degrees (45 normal)
The limitations her found in her right knee were essentially normal.
The plaintiff also submitted voluminous medical reports regarding Salma's care and treatment, which Dr. Kostin reviewed, but none of these materials were submitted in admissible form and therefore cannot be considered.
The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident to any parts of her body that she claims was injured in the accident (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956- 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). In opposition, the plaintiff failed to raise a triable issue of fact. Although Dr. Kostin found rather significant limitations in Salma's cervical and lumbar spine when he examined her on April 16, 2021, Salma failed to submit any competent and admissible medical evidence of injury contemporaneous with her accident (see Ortega v. Maldonado, 38 A.D.3d 388, 388, 832 N.Y.S.2d 193; Toulson v. Young Han Pae, 13 A.D.3d 317, 319, 788 N.Y.S.2d 334; Alicea v. Troy Trans, Inc., 60 A.D.3d 521, 522, 875 N.Y.S.2d 71 [2009]; Migliaccio v. Miruku, 56 A.D.3d 393, 394, 869 N.Y.S.2d 24).
Sabrina Aziz
Plaintiff SABRINA AZIZ alleges that as a result of the June 5, 2018 motor vehicle accident, she sustained soft tissue injuries to her cervical, thoracic and lumbar spine, right shoulder arthropathy and right knee internal derangement. Plaintiff alleges that she sustained "serious injuries" under the Insurance Law § 5102(d) categories of permanent loss of use, permanent consequential limitation, significant limitation and 90/180-day injury.
In support of the motion, defendants submitted the transcript of plaintiff's deposition testimony, and the affirmed expert reports of an orthopedic surgeon, J. Serge Parisien, M.D. and a radiologist, Mark J. Decker, M.D. Based upon his independent medical examination of plaintiff on October 17, 2019, which included range of motion testing by use of a goniometer, Dr. Parisien opined there was no objective evidence of disability or permanency to any injury that may have been sustained. Dr. Decker reviewed an x-ray of the plaintiff's Cervical Spine dated June 6, 2018 and opined that plaintiff had degenerative disc disease with convex left curvature, of a longstanding nature, which was not causally related to the accident of June 5, 2018.
Plaintiff testified at her deposition that she missed one- and one-half days of work and lost some shift time after the accident. Plaintiff testified that she lost her job at Orangetheory Fitness because she couldn't make it on time. She had returned to her job as a restaurant hostess for a couple of weeks post-accident.
In opposition, plaintiff provided an affirmation from Dr. Kostin who examined plaintiff on April 16, 2021. Using a goniometer, Dr. Kostin conducted range of motion testing on those parts of Sabrina's body that she claims were injured and found as follows:
With respect to her cervical spine, he found as follows:
• Flexion: 50 degrees (90 normal)
• Extension: 20 degrees (60 normal)
• Right Bending: 30 degrees (45 normal)
• Left Bending: 39 degrees (45 normal)
• Right Rotation: 60 degrees (80 normal)
• Left Rotation: 65 degrees (80 normal)
• Spurling's test: positive on right side
With respect to her lumbar spine, he found as follows:
• Flexion: 65 degrees (90 normal)
• Extension: 15 degrees (30 normal)
• Right Bending: 15 degrees (30 normal)
• Left Bending: 10 degrees (30 normal)
• SLR test: positive on right side at 30 degrees
With respect to her right knee, he found:
• Flexion: 120 degrees (150 normal)
• Extension: 180 degrees (180 normal)
The plaintiff also submitted voluminous medical reports regarding her care and treatment, which Dr. Kostin reviewed, but none of these materials were submitted in admissible form and cannot be considered.
The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) to any parts of her body that she claims was injured in the accident as a result of the accident (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956- 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). In opposition, the plaintiff failed to raise a triable issue of fact. Although Dr. Kostin found rather significant limitations is Sabrina's cervical and lumbar spine and right knee when he examined her on April 16, 2021, Salma failed to submit competent and admissible medical evidence of injury contemporaneous with her accident (see Ortega v. Maldonado, 38 A.D.3d 388, 388, 832 N.Y.S.2d 193; Toulson v. Young Han Pae, 13 A.D.3d 317, 319, 788 N.Y.S.2d 334; Alicea v. Troy Trans, Inc., 60 A.D.3d 521, 522, 875 N.Y.S.2d 71 [2009]; Migliaccio v. Miruku, 56 A.D.3d 393, 394, 869 N.Y.S.2d 24).
Accordingly, it is hereby
ORDERED, that defendants' motion for summary judgment dismissing plaintiffs' complaint on the ground that they did not suffer a serious injury as a result of the accident is GRANTED.
This constitutes the decision and order of the Court.
Note: This signature was generated electronically pursuant to Administrative Order 86/20 dated April 20, 2020