Opinion
605879/2018
09-12-2019
Teresa A. BOUZAS, Plaintiff, v. Toni N. SCHROEDER, Defendants.
Dell & Dean, PLLC, 1225 Franklin Ave, Ste450, Garden City, NY 11530, For plaintiff Jennifer S. Adams, Esq., Three Dakota Drive, Ste 201, Lake Success, NY 11042, For defendant
Dell & Dean, PLLC, 1225 Franklin Ave, Ste450, Garden City, NY 11530, For plaintiff
Jennifer S. Adams, Esq., Three Dakota Drive, Ste 201, Lake Success, NY 11042, For defendant
Carmen Victoria St. George, J.
The following numbered papers were read upon this motion:
Notice of Motion/Order to Show Cause 13-18
Answering Papers 20-30
Reply 32
Briefs: Plaintiff's/Petitioner's
Defendant's/Respondent's
The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident that occurred on April 8, 2016 on Jericho Turnpike in the Town of Huntington, County of Suffolk, State of New York. The defendant moves this Court for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) as a result of the subject accident. This Court grants the defendant's motion.
BACKGROUND
As alleged, on April 8, 2016, at approximately 5:15 pm, the vehicle operated by defendant Toni N. Schroeder came into contact with the vehicle operated by plaintiff Teresa A. Bouzas on Jericho Turnpike one hundred fifty feet east of Elwood Road.
Plaintiff commenced this action by filing a summons and complaint on March 28, 2018, seeking money damages for the serious injuries she claimed she sustained in the accident. The defendant joined by answer on April 26, 2018.
Plaintiff's Bill of Particulars lists her injuries as degeneration of the disc at C3-T1, thoracic and lumbar derangement, cervical radiculopathy, sciatica and spasms in the left leg, pain in the neck and upper back, and range of motion issues. Plaintiff alleges this caused a significant limitation in the use of a body function, a permanent consequential limitation of use of a body function and that she was prevented from performing substantially all of her usual and customary daily activities for 90 of the first 180 days following the accident (90/180 claim).
DISCUSSION
A. CPLR § 3212
This Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issue of fact ( Andre v. Pomeroy , 35 NY2d 361 [1974] ). Pursuant to CPLR § 3212, when moving for summary judgment, a party must establish that the cause of the action or the defense "sufficiently [ ] warrant[s] the courts" directing judgment as a matter of law ( Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). To oppose a motion for summary judgment, a party must show the existence of a triable issue of fact ( Id. ). Evidence presented on a motion for summary judgment must be scrutinized in the light most favorable to the party opposing the motion, herein the defendant ( Makaj v. Metropolitan Transportation Authority , 18 AD3d 625 [2d Dept 2005] ).
In support of her motion, defendant submits a copy of the pleadings, plaintiff's entire deposition transcript, and the affirmed report of Dr. Chacko.
B. Insurance Law § 5102(d)
Under Insurance Law § 5102(d), serious injury is defined as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body function or system; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such a person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
The defendant has the initial burden of making a prima facie showing, through admissible evidence, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) ( Gaddy v. Eyler , 79 NY2d 955 [1992] ). A defendant who relies on the findings of their own witnesses in support of a motion for summary judgment based on the lack of serious injury must submit evidence in an admissible form such as affidavits or affirmations ( Pagano v. Kingsbury , 182 AD2d 268 [2d Dept 1992] ). A defendant can submit the plaintiff's deposition testimony and the affirmed medical reports of the defendant's own examining physician in order to satisfy the burden of establishing a prima facie case that the plaintiff did not sustain a serious injury ( Moore v. Edison , 25 AD3d 672 [2d Dept 2006] ). Once the defendant has made a prima facie showing, the burden then shifts to the plaintiff to produce sufficient admissible evidence that her injuries satisfied the meaning of serious injury, to defeat the defendant's motion (see Gaddy v. Eyler , supra ).
In order to recover under the permanent consequential loss category, the limitation of use or function needs to be significant or consequential as it relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of a body part ( Dufel v. Green , 84 NY2d 795, 798 [1995] ). A minor, mild, or slight limitation of use cannot satisfy the meaning of serious injury as defined by § 5102(d) ( Licari v. Elliott , 57 NY2d 230 [1982] ). To satisfy the definition of serious injury under the 90/180 category a plaintiff must provide competent medical evidence to support their claim that they sustained a medically determined injury of a non-permanent nature which prevented them from performing their usual and customary activities for no less than 90 out of the 180 days following the subject accident ( Sainte-Aime v. Suwai Ho , 274 AD2d 569 [2d Dept 2000] ).
Defendant, by submitting an affirmed report from the independent medical examiner and through the use of the plaintiff's deposition testimony, has established a prima facie case that plaintiff did not sustain a serious injury under any of the categories claimed in her Bill of Particulars (see Toure v. Avis Rent A Car Sys. , 98 NY2d 345 [2002] ); Gaddy v. Eyler , supra ). At an Independent Medical Exam (IME), Dr. Chacko examined the plaintiff on February 13, 2019, approximately two years and ten months after the subject accident. The doctor states the objective means by which she measured plaintiff's range of motion and sets the standard for normal values as stated in the A.M.A "Guides to the Evaluation of Permanent Impairment", fifth edition. Dr. Chacko physically examined the plaintiff and found cervical, thoracic and lumbar strains resolved from an objective neurological standpoint. The report further noted that there are no clinical findings consistent with cervical, thoracic or lumbar radiculopathy or myelopathy. Dr. Chacko found that although plaintiff exhibited mild limitations in range of motion, these are voluntary movements and are not therefore truly objective. The report also detailed no focal neurological deficits, muscle weakness, reflex asymmetry, or focal sensory changes. Claimant had x-rays performed as a result of the subject accident but no resulting surgery. Dr. Chacko upon examination of the neck, back and shoulder found no positive objective findings despite plaintiff's subjective complaint of neck and back tenderness. He concluded that the prognosis is good. He further concluded that the plaintiff had a history of disc herniations in the lumbar region as noted in the MRI from 2009 and has been treated for back pain prior to the subject accident.
The plaintiff was involved in a prior motor vehicle accident in 2012 or 2013. Plaintiff further had preexisting back pain. She had periodic chiropractic treatments to address the problem. The preexisting back pain had caused the plaintiff to be taken to Huntington Hospital by ambulance for treatment prior to the subject accident.
Also of note is that in accordance with the plaintiff's testimony no air bags deployed and there was no glass shattered as a result of the impact. In fact, the car was operable afterwards. The plaintiff testified that when police arrived at the scene of the accident the plaintiff refused the offer of an ambulance despite the fact that she testified she was not feeling well. The day of the subject accident the plaintiff presented herself to her chiropractor at Suffolk County Chiropractic.
After her chiropractic visit plaintiff also sought treatment from Long Island Spine and North Suffolk Medical Associates. Plaintiff further stated she did not have a complete resolution of lower back issues that existed prior to the subject accident. While plaintiff has received acupuncture treatment post-accident and had went to chiropractic treatments every five to six weeks, at the time of the deposition there were no future appointments scheduled with Long Island Spine. Further, plaintiff testified that she does not take prescription or over the counter medication for pain. Plaintiff acknowledged that she experienced lower back pain and received regular chiropractic adjustments for it. Actually, the plaintiff complains that she presently is prevented from, inter alia , dancing, roller coaster riding, vacuuming and horseback riding. These recreational activities are not the "usual" and "customary" acts the legislature had in mind when it enacted Insurance Law § 5102(d). A plaintiff's allegation of curtailment of recreation and household activities and an inability to lift heavy packages is generally insufficient to demonstrate that she or she was prevented from performing substantially all of her customary daily activities for not less than 90 days during the 180 days immediately following the accident ( Omar v. Goodman , 295 AD2d 413 [2d Dept., 2002] ; Lauretta v. County of Suffolk , 273 AD2d 204 [2d Dept., 2000] ).
Notably, plaintiff's deposition testimony is devoid of any mention of an inability to perform her daily activities. Accordingly, the defendant has established through the presentation of the plaintiff's own testimony that she did not sustain a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts constituting plaintiff's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence (90/180 claim) ( Kuperberg v. Montalbano , 72 AD3d 903 [2d Dept 2010] ; Sanchez v. Williamsburg Volunteer of Hatzolah, Inc. , 48 AD3d 664 [2d Dept 2008] ). Based on the affirmed report from Dr. Chacko and plaintiff's deposition testimony, defendant has established, prima facie, that plaintiff did not sustain a serious injury as defined by § 5102(d) under the permanent consequential limitation, significant limitation, or 90/180 categories of injury alleged in the Bill of Particulars (see Curry v. Velez , 243 AD2d 442 [2d Dept 1997] ).
Once defendant establishes its prima facie case, the burden shifts to the plaintiff to come forward with evidence in admissible form to raise a triable issue of fact as to whether she sustained a serious injury as defined by § 5102(d) (see Gaddy v. Eyler , supra ). Unless an acceptable excuse for failure to comply is furnished, findings of a medical witness must be in the form of affidavits or affirmations to be admissible, which the plaintiff has met and therefore this Court considers Dr. Butani's affidavit and annexed reports (Plaintiff's Exhibit A & B) (see Pagano v. Kingsbury , supra ). While a plaintiff should not be punished for failing to seek out a doctor who knows how to create a record for litigation immediately after being injured, a contemporaneous medical report is important for proving causation (see Perl v. Meher , 18 NY3d 208 [2011] ). Dr. Butani's affirmation submitted by the plaintiff does not adequately address causation. Dr. Butani does not address the detailed pre-existing medical history of the plaintiff and failed to compare post and pre-accident x-rays and MRIs to see if the injuries remained unchanged. Also, Dr. Butani opines that the accident "caused" the plaintiff's injuries, but fails to specifically causally relate the subject accident and eliminate plaintiff's pre-existing conditions as a factor of plaintiff's present complaints. For example, plaintiff was treated prior to and after the subject accident for back pain, the former by ambulance, the latter by car, the doctor provides no causal discussion differentiating the two.
In both Dr. Butani's affirmation and accompanying records there is no standard for the normal values. There is no objective standard provided either in the doctor's affirmation or treatment reports in which to gauge the doctor's findings for his tests. Notably, the treatment reports contain no recommendation from any medical provider to refrain from engaging in any activities at all.
Bulging or herniated discs must be accompanied by objective medical evidence of the alleged physical limitations resulting from the disc injury and their duration in order to support a claim of serious injury (see Pommells v. Perez , 4 NY3d 566 [2005] ; Yakubov v. CG Trans Corp. , 30 AD3d 509 [2d Dept 2006] ; Kearse v. NYC Transit Auth. , 16 AD3d 45 [2d Dept 2005] ; Diaz v. Turner , 306 AD2d 241 [2d Dept 2003] ). The doctor's affirmation submitted by plaintiff makes out no objective medical evidence addressing any physical limitations resulting from the alleged aggravation or exacerbation of the previously existing herniations. Without objective medical evidence of the plaintiff's limitations, the mere existence of herniated discs cannot support her serious injury claim (see Pommells v. Perez , supra ).
Where a plaintiff alleging serious injury has preexisting conditions, the plaintiff must address or contest the existence of such conditions and the role they played in the alleged injury (see Alvarez v. NYLL Mgmt. Ltd. , 120 AD3d 1043 [1st Dept 2014] ). The affirmed medical report submitted by the defendant states the plaintiff had preexisting conditions. The doctor's affirmation submitted by the plaintiff acknowledge the plaintiff's preexisting condition, however, it fails to address how the preexisting condition could have affected the plaintiff's alleged injuries. As such, plaintiff's evidence is insufficient to show a triable issue of fact and therefore summary judgment is proper (see Camilo v. Villa Livery Corp. , 118 AD3d 586 [1st Dept 2014] ).
CONCLUSION
The defendant made a prima facie showing that the plaintiff did not sustain a serious injury under Insurance Law § 5102(d) through affirmed medical reports and the plaintiff's deposition testimony. After establishing that plaintiff did not sustain a permanent consequential limitation of use of a body function, a significant limitation of use of a body function, and that she was not prevented from performing substantially all of her usual and customary daily activities for 90 of the first 180 days following the accident, defendant shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v. Eyler , supra ).
The plaintiff has failed to raise a triable issue of fact as to whether she sustained a serious injury under § 5102(d). Therefore, the defendant's motion for summary judgment dismissing the complaint is granted.
Upon the foregoing; it is
ORDERED that defendant's motion seeking summary judgment pursuant to CPLR § 3212 dismissing the complaint on the basis that plaintiff Teresa A. Bouzas did not sustain a serious injury as defined by Insurance Law § 5102(d) is granted as detailed above; and it is further,
ORDERED that plaintiff's complaint is dismissed as against the defendant; and it is further,
ORDERED that counsel for defendant is hereby directed to serve a copy of this decision and order with notice of entry on counsel for plaintiff.
The foregoing constitutes the decision of this Court.