Opinion
No. 308921/08.
2010-12-14
Peter BRACKENBURY, Plaintiffs, v. Edward W. FRANKLIN, Jr. and Albert Babadzhanov, Defendants.
Adam D. White, New York, for Plaintiff. Baker, McEvoy, Morrissey, Moskovits, PC, New York, for Defendants.
Adam D. White, New York, for Plaintiff. Baker, McEvoy, Morrissey, Moskovits, PC, New York, for Defendants.
KENNETH THOMPSON, J.
Defendants' EDWARD W. FRANKLIN, JR. and ALBERT BABADZHANOV motion for an Order pursuant to CPLR § 3212 granting summary judgment on the grounds that Plaintiff did not sustain a “serious injury” under the Insurance Law is granted.
Background
Plaintiff claims that he was struck by Defendants' taxi cab while he was riding his bike, resulting in a deep 5 cm vertical laceration through the muscle of the right hand (dominant) between 4th and 5th metacarpals, split that goes both dorsum and posterior, that required multiple sutures internally and externally to repair. (Brackenbury Aff at ¶¶ 2, 3 & 5; Ver. Bill of Part. at ¶ 1.) Plaintiff contends that he suffered “a significant limitation”, “a permanent consequential limitation,” and “a non-permanent medically determined injury that prevented [him] from the performance of [his] usual and customary daily activities for 90 or 180 immediately subsequent to the injury.” (Ver Bill of Part at ¶ 20.) Defendants argue now, however, that Plaintiff has not suffered a “serious injury” under the Insurance Law.
Serious Injury
[S]erious injury' means 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 organ or member' 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 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.
NY Ins Law § 5102(d).
The purpose of the statute is “to weed out frivolous claims and limit recovery to significant injuries.” Dufel v. Green, 84 N.Y.2d 795, 798. As such, the Court has determined that the phrases “permanent loss of use,” “permanent consequential limitation” and “significant limitation of use” must be interpreted in terms of “total loss.” Oberly v. Bangs Ambulance Inc., 96 N.Y.2d 295, 299. Furthermore, the word “significant” as it relates to “limitation of use of a body function or system,” refers to more than “a minor, mild or slight limitation of use.” Licari v. Elliott, 57 N.Y.2d 230, 236. Also, the phrase “substantially all” as it relates to the 90/180, should be “construed to mean that the person has been curtailed from performing his or her usual activities to a great extent rather than some slight curtailment.” Id. Although no-fault insurance is meant to allow plaintiffs to recover for non-economic injuries in appropriate cases, the Legislature also “intended that the court first determine whether or not a prima facie case of serious injury has been established which would permit plaintiff to maintain a common-law cause of action in tort.” Id. at 237.
Summary Judgment
A defendant moving for summary judgment on the issue of whether the plaintiff sustained a serious injury within the meaning of § 5102(d) has the initial burden of presenting sufficient evidence to establish that the injuries do not meet the statutory threshold. Linton v. Nawaz, 62 AD3d 434. Should the Defendant meet this requirement, the burden then shifts to the Plaintiff, who must produce admissible, prima facie evidence to support their claim of serious injury. Vidal v. Maldonado, 23 Misc.3d 186.
Defendants' Proffer
Defendants proffer the Affirmed orthopedic evaluation of Plaintiff's right hand performed by Dr. Salvator R. Lenzo on September 10, 2009. The doctor examined Plaintiff and found “a well healed scar in the web between the small and ring finger, both volarly and dorsally, measuring approximately a total of 5 inches.” The doctor found that Plaintiff had “full extension and flexion of the fingers within the right hand,” and that the ranges of motion in his right wrist were all within normal limits. The doctor concluded that Plaintiff had full function in his right hand, that no further treatment was indicated and that Plaintiff could do all activities of daily living without any restrictions.
The Court finds that Defendants have met their burden in showing that Plaintiff did not sustain a “serious injury.” See Meric v. Cancela, 275 A.D.2d 309 (affirmed reports orthopedist who examined plaintiff in automobile negligence action and found she had no disability established prima facie case that plaintiff had not sustained serious injury).
Where Defendant establishes a prima facie case that Plaintiff's injuries were not serious within the meaning of Insurance Law § 5102(d), the burden is then shifted to the Plaintiff to overcome defendant's motion by demonstrating that she sustained a serious injury. Gaddy v. Eyler, 79 N.Y.2d 955. In order to survive summary dismissal of the Complaint, the Court must find that the Plaintiff has satisfied his evidentiary burden to submit “objective medical proof of a serious injury” causally related to the accident. Pomells v. Perez, 4 N.Y.2d 566, 574.
Plaintiff's Proffer
Plaintiff proffers the belatedly affirmed orthopedic evaluation done by Dr. Leonard R. Harrison on June 28, 2010. The doctor noted that Plaintiff did not receive any therapy after the injury to his right hand. The doctor notes that, “the right hand revealed a longitudinal linear scar dorsally. It started mid portion between the fourth and fifth metacarpal and proceeded volarly to the distal palmar flexion crease.” Although the doctor found that there was a 10–degree difference between the extension of the fourth and fifth metacarpals of the right hand and of the left hand, there was full flexion of both areas. The doctor alludes to an x-ray taken of Plaintiff hand on March 27, 2010, that revealed “an old fracture at the base of the fourth metacarpal neck which is united.”
Presumptively based on Dr. Harrison's findings, Plaintiff presents a Supplemental Bill of Particulars wherein he alleges that he suffered a fracture of the base of the 4th and 5th metacarpal, and that he “sustained a fracture and significant disfigurement within the meaning of Insurance Law § 5102.” (Supp Bill of Part ¶¶ 11, 20.)
Supplemental Bill of Particulars
The Court declines to allow this supplement given Plaintiff's failure to submit an affidavit in support of the merits of his request. “A supplemental bill of particulars may be used for purposes of updating claims of continuing special damages and disabilities under CPLR § 3043(b), but may not be used for adding new injuries or damages.” Kraycar v. Monahan, 49 AD3d 507, 508 (citations omitted).
While leave to amend a bill of particulars is ordinarily to be freely granted in the absence of prejudice and surprise, when leave to amend is sought on the eve of trial, judicial discretion should be exercised sparingly. Where there has been an inordinate delay in seeking to amend, the plaintiff must establish a reasonable excuse for the delay and submit an affidavit to establish the merits of the proposed amendment.
Danne v. Otis Elevator Corp., 276 A.D.2d 581, 583 (citations omitted).
the fracture
Dr. Harrison's finding of a fracture is an insufficient basis upon which to supplement the Bill of Particulars since the finding was not made contemporaneous to Plaintiff's alleged mishap. See, e.g., Ali v. Khan, 50 AD3d 454, 455 (dismissing the Complaint based in part on the lack of “contemporaneous admissible evidence that plaintiff was ever diagnosed by her treating physician with a fracture that resulted from [the] accident”) (citations omitted); Kaplun v. Septama, 38 AD3d 847 (finding that “plaintiff raised a triable issue of fact by presenting medical evidence contemporaneous with the subject accident that she sustained a possible fracture from the subject accident”).
significant disfigurement
Next, a “significant disfigurement” is “one that a reasonable person would view as unattractive, objectionable, or as the subject of pity or scorn.” Hutchinson v. Beth Cab Corp., 207 A.D.2d 283 (citation omitted). The Court finds that neither Dr. Harrison's evaluation nor Plaintiff's photographs meet this hurdle. Dr. Harrison mentions the scar in passing, but does not elaborate on its appearance or effect. The photographs reveal a well-healed scar, running between Plaintiff right pinky and ring finger, which is barely discernible from the palm side. Although the photographs are magnified, the Court is hard-pressed to find that the scar is unattractive, objectionable or would subject Plaintiff to pity or scorn. See Santos v. Taveras, 55 AD3d 405 (finding that “small, well-healed scars do not constitute a significant disfigurement' within the meaning of the statute”) (citations omitted).
No Triable Issues
Finally, Plaintiff has failed to raise a triable issue of fact that he suffered “a significant limitation”, “a permanent consequential limitation,” or “a non-permanent medically determined injury that prevented [him] from the performance of [his] usual and customary daily activities for 90 or 180 immediately subsequent to the injury.”
no contemporaneous exam
Plaintiff has failed to submit competent medical evidence, contemporaneous with the subject accident that revealed any injuries orlimitations. See Posa v. Guerrero, 2010 N.Y. Slip Op 7730, * *2; Srebnick v. Quinn, 75 AD3d 637;Catalano v. Kopmann, 73 AD3d 963. The October 2, 2008 unaffirmed x-ray report from St. Vincents indicates “[n]o evidence of acute osseous traumatic injury.”
no normal range indicated
Although Dr. Harrison finds that there is a 10–degree difference in the extension of the fingers on Plaintiff right and left hand, the doctor fails to: state whether this difference indicates a restriction; designate a numeric percentage to this purported restrictions; or compare the alleged restriction to the normal function of that area. Toure v. Avis Rent a Car Sys., 98 N.Y.2d 345, 350–51;Tuico v. Maher, 52 AD3d 201;Gorden v. Tibulcio, 50 AD3d 460, 462.
gap-in-treatment
“[E]ven where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury—such as a gap in treatment, ... summary dismissal of the complaint may be appropriate.” Pomells v. Perez, 4 N.Y.2d 566, 572. According to the paucity of records provided by Plaintiff, he did not seek treatment or therapy for his injuries between the time he was injured on October 1, 2008 and the time he was evaluated by Dr. Harrison on March 27, 2010—nearly a year and a half. The issue is compounded by his failure to explain this gap in treatment.
90/180
Plaintiff's Bill of Particulars indicates that he was confined to his home and bed for just one day, and that he was “incapacitated from employment” from October 1, 2008 to October 10, 2008. See Hamilton v. Rouse, 46 AD3d 514 (holding 90/180 day requirement of serious injury allegation not met where Plaintiff testified he missed only one month of work, returned to work on a part-time basis, and after that resumed working on a full time basis); Rodriguez v. Vigra, 24 AD3d 650 (holding Plaintiff failed to establish prima facie case of serious injury under the 90/180–day category of serious injury where it was undisputed Plaintiff returned to work less than 90 days after the accident); Szabo v. Two Way Radio Taxi Assoc. Inc., 267 A.D.2d 134 (holding Plaintiff failed to meet “substantially all” standard and statutory 90/180–day period of disability requirement where Plaintiff was absent from work on full time basis for two full weeks after the accident and was thereafter able to work half days); Grotzer v. Levy, 133 A.D.2d 134 (holding it was clear Plaintiff's injury did not prevent her from performing substantially all of the material acts constituting Plaintiff's usual and customary daily activities in accord with the 90/180–day requirement where Plaintiff returned to work within one month of the accident).His subjective complaints of pain do not countenance a different result. See, e.g., Christian v. Waite, 61 AD3d 581, 582;Guadalupe v. Blondie Limo, Inc., 43 AD3d 669, 670;Park v. Champagne, 34 AD3d 274, 276;see also Arjona, supra at 280 (finding that “permanent problems in standing, sitting, bending and lifting” where “a minor, mild or slight limitation of use ... insufficient to constitute a serious injury within the definition of the no-fault statute”); see also Alloway v. Rodriguez, 61 AD3d 591, 592 (holding that “plaintiff's subjective claims of pain and a limitation on sports and exercise activities do not prove a restriction on her usual and customary daily activities for at least 90 days of the 180 days following the accident”); Becerril v. Sol Cab Corp., 50 AD3d 261, 262;Nelson v. Distant, 308 A.D.2d 338, 339–40.
The foregoing shall constitute the decision and order of this Court.