Opinion
INDEX 303644/2013
06-01-2015
ELIZABETH BROADHEAD, Plaintiffs, v. ALLEN JAYSEN VALERIO, Defendant.
DECISION/ORDER :
This motion by defendant Allen Jaysen Valerio for summary judgment dismissing the action is granted.
On May 22, 2011, plaintiff Elizabeth Broadhead was a front-seated passenger in a car struck in the rear by defendant's vehicle. Two years later, plaintiff sued defendant alleging injuries to her neck, back and hand or hands as a result of the accident. After considerable discovery was exchanged, defendant made the instant motion for summary judgment dismissing the complaint for plaintiff's failure to demonstrate she had suffered a serious injury because of the accident.
Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v Associated Fur Manufacturers, 46 NY2d 1065 [1979]).
In order to recover for non-economic loss resulting from an automobile accident under New York's "No-Fault" statute, Insurance Law § 5104, the plaintiff must establish, as a threshold matter, that the injury suffered was a "serious injury" within the meaning of the statute. "Serious injury" is defined by Insurance Law § 5102(d) to include, among other things not relevant here, a "permanent consequential limitation of use of a body organ or member", a "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 constitutes such person's usual and customary activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment."
The initial burden on a threshold motion is upon the defendants to present evidence establishing that plaintiff has no cause of action, i.e.: that no serious injury has been sustained. It is only when that burden is met that the plaintiff would be required to establish prima facie that a serious injury has been sustained within the meaning of Insurance Law § 5102(d) (Franchini v Palmieri, 1 NY3d 536 [2003]; Licari v Elliot, 57 NY2d 230 [1982]).
To make out a prima facie case of serious injury, a plaintiff must produce competent medical evidence that the injuries are either "permanent" or involve a "significant" limitation of use (Kordana v Pomelito, 121 AD2d 783 [3 Dept 1986]). A finding of "significant limitation" requires more than a mild, minor or slight limitation of use (Broderick v Spaeth, 241 AD2d 898, lv denied, 91 NY2d 805 [1998]; Gaddy v Eyler, 167 AD2d 67, aff'd, 79 NY2d 955 [1992]). Strictly subjective complaints of a plaintiff unsupported by credible medical evidence do not suffice to establish a serious injury (Scheer v Koubek, 70 NY2d 678 [1987]).
To satisfy the requirement that plaintiff suffered a medically determined injury preventing her from performing substantially all of her material activities during 90 out of the first 180 days, a plaintiff must show that "substantially all" of her usual activities were curtailed (Gaddy, 167 AD2d 67). The "substantially all" standard "requires a showing that plaintiff's activities have been restricted to a great extent rather than some slight curtailment" (Berk v Lopez, 278 AD2d 156 [1 Dept 2000], lv denied, 96 NY2d 708).
Allegations of sprains and contusions do not fall into any of the categories of serious injury set forth in the statute (Maenza v Letkajornsook, 172 AD2d 500 [2 Dept 1991]). "Absent an explanation of the basis for concluding that the injury was caused by the accident, as opposed to other possibilities evidenced in the record, an expert's 'conclusion that plaintiff's condition is causally related to the subject accident is mere speculation', insufficient to support a finding that such a causal link exists" (Diaz v Anasco, 38 AD3d 295 [1 Dept 2007], citing Montgomery v Pena, 19 AD3d 288 [2005]).
"Proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury" (Pommels v Perez, 4 NY3d 566 [2005]). Nor is evidence of radiculopathy (Casimir v Bailey, 70 AD3d 994 [2 Dept 2010]). A plaintiff's subjective complaints of pain are insufficient, without more, to establish that herniated discs constitute a serious injury (Pierre v Nanton, 279 AD2d 621 [2 Dept 2001]).
The defendant may rely on medical records and reports prepared by plaintiff's treating physicians to establish that plaintiff did not suffer a serious injury causally related to the accident (Franchini, 1 NY3d 536). Once the burden has shifted however, an affidavit or affirmation by the person conducting a physical examination of the plaintiff is necessary to establish a serious injury, unless plaintiff is offering unsworn reports already relied upon by the defendant (Grossman v Wright, 268 AD2d 79 [3 Dept 2000]; see also Zoldas v Louise Cab Co., 108 AD2d 378 [1 Dept 1985]). The affirmation must set forth the objective medical tests and quantitative results used to support the opinion of the expert (Grossman, 268 AD2d 79). "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 (cite omitted)" (Toure v Avis Rent A Car Systems, 98 NY2d 345 [2002]). A conclusory affidavit of the doctor does not constitute medical evidence (Zoldas, 108 AD2d 3778; see also Lopez v Senatore, 65 NY2d 1017 [1985] [conclusory assertions tailored to meet statutory requirements insufficient to demonstrate serious injury]).
In support of the motion, defendant offered copies of the pleadings, the bill of particulars, plaintiff's deposition testimony and the affirmations of Dr. Harry Goldmark and Dr. Stewart Berliner. The bill of particulars alleged a herniated cervical disc at C6-7, cervical strains and sprains, herniated lumbar discs at L4-5 and L5-S1, and carpal tunnel syndrome. The injuries were all alleged to be permanent, except for those that were not permanent.
Plaintiff testified that her neck hit the headrest when the accident occurred (deposition of Elizabeth Broadhead, January 7, 2014 at 19). The air bags did not deploy (id. at 18-19). No ambulance came to the scene (id. at 22). Plaintiff felt "woozy" and her neck hurt (id. at 27). She left the scene by car and went home (id. at 29).
Plaintiff was employed at the time by T.J. Maxx (id. at 9). She was working four days a week and five hours a day (id. at 10). She did not miss any time from work due to the accident (id.).
Approximately one week later, plaintiff sought medical attention at North Bronx Medical Center (id. at 30). She complained about her neck and headaches (id.). She had experienced that neck pain since the accident (id.).
Plaintiff underwent physical therapy for about one month (id. at 32). She was not given pain medications (id. at 34-35). She had a total of four corticosteroid injections in her neck (id. at 39-40, 50), but they only made her neck "worse" (id. at 41). Surgery was recommended but she did not go through with it (id. at 46). She has no present medical appointments for the injuries suffered in the accident (id.).
Presently, plaintiff has pain in her neck which comes and goes every day and lasts about twenty minutes, and she cannot move it (id. at 39, 49). The neck gets stiff and the pain is sharp (id. at 49). She has never taken pain medication because of her neck and does not take any at this time (id.). There is nothing she is completely prevented from doing because of the pain (id. at 48), but she cannot hold anything in her hand for "too long" without getting cramps in the hand (id.). That cramping started two to three weeks after the accident (id. at 48-49). She suffered no injuries to her back in the accident (id. at 54-55).
Dr. Berliner, radiologist, reviewed the MRI of plaintiff's cervical spine performed on June 10, 2013. Dr. Berliner found mild degenerative cervical disc changes at C6-7 with associated minor left side degenerative bulge. He saw no evidence of traumatic injury.
Dr. Goldmark, orthopedist, examined the 5' 1" tall plaintiff who weighed 176 pounds on April 24, 2014. Plaintiff complained of neck pain and headaches. Her pain was described as "tingling". She said she can only sit for about 45 minutes and climbing stairs causes her difficulty.
Dr. Goldmark found no cervical or lumbar spasm or tenderness. Plaintiff had full 5/5 in motor strength in her neck, a negative Spurling test and no atrophy. Range of motion in both her cervical and lumbar spine was full, expressed numerically and compared to normal numbers. Straight leg raising was negative. Range of motion in both wrists was full and a Tinel's sign was negative. Dr. Goldmark found no orthopedic disability based on his physical examination and review of medical records. His diagnosis was resolved sprain of plaintiff's cervical and lumbar spine and both wrists.
In opposition to the motion, plaintiff offered her own affidavit and the affirmations of William Weiner, M.D., Alexandre Grigorian, D.O., and Brian Haftel, M.D. Plaintiff stated in her affidavit dated November 7, 2014 that she saw Dr. Grigorian on May 23, 2011, two days after the accident. Plaintiff received more than three months of phsical therapy at four to five days a week but obtained no relief from neck pain. Dr. Todd Koppel gave her a cervical steroid injection on September 1, 2011 and she received some temporary relief. Plaintiff had an additional series of three steroid injections later, but they were not helpful. Dr. Sebastian Lattuga recommended surgery in plaintiff's cervical spine and she is considering it because she continues to suffer neck pain. She cannot sleep through the night or on her stomach. She cannot hold items in her hands without experiencing cramping. She has severe, daily hand cramps. She cannot stand for long periods of time because of pain in her neck.
Dr. Weiner, a radiologist, reviewed the same MRI films of plaintiff's cervical spine as those reviewed by Dr. Berliner. Dr. Weiner found straightened lordosis suggestive of pain or spasm and a herniated disc at C6-7. Dr. Weiner opined the findings were traumatically induced without further detail or explanation, and causally related to the subject motor vehicle accident.
Dr. Grigorian stated in his affirmation dated November 5, 2014 that he first examined plaintiff on May 23, 2011, the day after the accident. She complained of headaches and neck pain. She had a positive Spurling test, tenderness and spasm in her cervical spine and decreased range of motion, expressed numerically and compared to normal numbers. Dr. Grigorian prescribed Naproxen and physical therapy. Dr. Grigorian evaluated plaintiff again on June 9, 2011; July 2, 2011 and July 26, 2011 with essentially the same results.
An EMG test on July 12, 2011 identified right carpal tunnel syndrome and C6-7 radiculopathy according to Dr. Grigorian. The EMG test report itself was not offered with his affirmation. Plaintiff reportedly received a cervical steroid injection on September 1, 2011. September 9, 2011 was her last visit with Dr. Grigorian. She was still complaining of neck pain. Dr. Grigorian felt additional therapy would only be palliative.
Dr. Grigorian's opinion was that the "above-stated injuries" are permanent and causally related to the subject motor vehicle accident. He stated that plaintiff's injuries were a "permanent consequential limitation of use and a significant limitation of use of her neck" and prevented her from performing her customary activities for 90 out of the first 180 days after the accident.
Dr. Haftel affirmed on November 19, 2014 that plaintiff consulted him on January 27, 2012. She reported contined and worsening symptoms in her neck. Her range of motion was "aching and intermittent" with radiating pain to her hands. Dr. Haftel provided range of motion numbers compared to the normal, showing decreased range of motion, not only with her cervical spine, but also with plaintiff's lumbar spine. Dr. Haftel reviewed plaintiff's cervical MRI films, and Dr. Todd Koppel's report of her cervical steroid injection. These reports were not included with Dr. Haftel's affirmation.
Plaintiff returned to Dr. Haftel a year later on February 20, 2013, still complaining of pain in her neck. Dr. Haftel found her cervical range of motion still decreased and reviewed plaintiff's lumbar MRI films, finding disc herniation at L4-5 and L5-S1. Plaintiff underwent a series of cervical steroid injections in April 2013 per Dr. Haftel's recommendations.
Dr. Haftel saw plaintiff again in May and August 2013. Plaintiff then saw Dr. Lattuga in September 2013 and surgery was discussed. Dr. Haftel reviewed that report but, once again, did not include Dr. Lattuga's report with his affirmation.
Plaintiff returned to Dr. Haftel in November 2013, June 2014 and October 2014. Plaintiff continued to have decreased range of motion in her cervical spine. Dr. Haftel diagnosed her with a herniated disc at C6-7, lumbar strain at L4-5 and L5-S1, and cervical and lumbar radiculopathy. In his opinion, plaintiff has difficulty performing simple activities of daily living, including activities requiring her to turn her neck, look up or down, or engage in heavy lifting, pushing or pulling. She suffered a permanent partial disability, a "permanent consequential limitation of use and a significant limitation of use" of her cervical spine due to the subject motor vehicle accident.
Defendant has established his entitlement to summary judgment which plaintiff has not refuted with admissible medical evidence. Defendant satisfied his burden with the affirmation of Dr. Goldmark who found no restrictions in range of motion in plaintiff's cervical and lumbar spine and hands and negative objective testing, as well as the MRI interpretation of Dr. Berliner who found a degenerative condition in her cervical spine associated with the bulging disc in that area. Plaintiff herself testified that she did not suffer a back injury as a result of the accident and that her carpal tunnel syndrome did not appear until weeks after the accident, precluding any acute, traumatic causation for that claimed injury. Plaintiff's admission in her deposition that she lost no time from work after the accident precludes a finding that she was prevented from performing her customary daily activities for 90 out of the first 180 days following the accident.
Plaintiff's offerings in opposition did not raise an issue of fact for trial. Both Dr. Grigorian and Dr. Weiner discussed plaintiff's cervical spine, but neither addressed the degeneration associated with her C6-7 disc found by Dr. Berliner, rendering the formers' opinions as to causation no more than speculation (see Diaz, 38 AD3d 295 [opinion as to causation insufficient absent explanation for basis to find accident caused injury, as opposed to other possibilities in record]). Neither Dr. Grigorian nor Dr. Haftel offered any opinion other than strain as to plaintiff's alleged injuries in her lumbar spine. Dr. Grigorian's mention of reviewing the EMG report which reportedly found "right carpal tunnel syndrome", and merely connecting the accident to plaintiff's hand by including it in the "above stated injuries", is insufficient proof of injury to plaintiff's hand or of causation without at least offering a copy of the report itself. Plaintiff's subjective complaints of pain and limitation are insufficient to raise an issue of fact.
The complaint is, therefore, dismissed in its entirety. Movant is directed to serve a copy of this order with notice of entry on the Clerk of Court who shall enter judgment dismissing the plaintiffs' complaint.
This constitutes the decision and order of the court. Dated: June 1, 2015
Bronx, New York
/s/ _________
BETTY OWEN STINSON, J. S.C.