Opinion
4264/07.
Decided September 29, 2008.
Upon the foregoing papers, defendants J.R.R. Limo and Antonio Fuentes (collectively, "defendants"), move for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's complaint on the ground that plaintiff Channie Byrd ("plaintiff") did not sustain a "serious injury" as that term is defined in Insurance Law § 5102 (d) .
Insurance Law § 5102 (d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of 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."
Facts and Procedural Background
This negligence action arises out of a November 4, 2005 accident, when a vehicle operated by plaintiff, collided with a taxicab operated by Antonio Fuentes, at Bushwick Avenue in Brooklyn, New York. Plaintiff commenced the instant action by filing a summons and verified complaint on February 6, 2007. In her bill of particulars, plaintiff alleges she sustained various injuries, including: several disc herniations, disc bulges, sprain and strain of the cervical spine and various soft tissue injuries.
Defendants' contentions
In seeking to dismiss the complaint, the respective defendants contend that plaintiff did not sustain a "serious injury," as that term is defined in Insurance Law § 5102 (d).
In support of their motion for summary judgment, defendants rely upon, among other things; plaintiff's bill of particulars; medical records; her deposition testimony; independent medical examinations performed on defendants' behalf by Dr. Wayne Kerness, an orthopedic surgeon; Dr. Allan Sobin, a neurologist; Dr. David Fisher a radiologist; an independent review of plaintiff's medical records by Dr. Gregory Montalbano, a Radiologist; and a December 28, 2005 MRI report of plaintiff's right shoulder and cervical spine conducted on December 28, 2005.
At her deposition conducted on December 4, 2007, plaintiff testified that she drove her friend and herself home after the accident. A couple of days later, she sought medical treatment at Interfaith Medical Center for complaints of pain in her neck and right shoulder. Plaintiff testified that approximately two or three weeks later, she consulted with Dr. Aric Hausknecht, who advised her to begin chiropractic treatments and physical therapy for her injuries. She underwent physical therapy and chiropractic treatment three times per week for six months. Plaintiff then visited with Dr. Lubliner six months after the accident. Dr. Lubliner sent her back for physical therapy and recommenced that she undergo surgery to her right shoulder. Plaintiff further testified that following the accident, she was confined to her home for three or four days; she missed approximately twenty days from employment at the Fortune Society and three days from employment with the Interfaith Network. She stated that as a result of the accident, she experiences pain in her neck, back and right shoulder at least two to three times per week. With respect to her physical complaints and limitation of activities, she testified that prior to the accident she played handball, rollerblade and went swimming. However, she can no longer enjoy those activities. Plaintiff also stated that "she can't lift a lot on her right shoulder."
In his affirmed report, Dr. Kerness notes that he examined plaintiff on January 14, 2008. Plaintiff reported a history of a prior accident but denies sustaining any injuries at that time. Plaintiff presented with pain in the right shoulder and Dr. Kerness administered range of motion tests in the cervical spine, right and left shoulder. He reports that those tests were normal. Dr. Kerness stated his impression as "normal examination of the cervical spine" and "status post right shoulder arthroscopy-resolved." He concludes that there was no evidence of a permanent injury and plaintiff is able to engage in her daily activities without restrictions.
In his affirmed report, Dr. Allan Sorbin states that he performed a neurological examination of plaintiff on January 14, 2008. His examination revealed plaintiff had a normal range of motion in both the cervical spine and the right shoulder. Distraction and compression tests were negative; range of motion test of the lumbar was normal; straight leg raising test was negative; and plaintiff had no tenderness or muscle spasms. Dr. Sorbin also notes that plaintiff had a normal neurological examination. He found no indication of a permanent neurological disability. Dr. Sorbin, accordingly, is of the opinion that plaintiff can perform her daily activities without restriction or any neurological limitations.
Dr. Fisher performed a radiological review of plaintiff's right shoulder and cervical spine films. In his April 30, 2008 report, Dr. Fisher states that a study of plaintiff's right shoulder MRI reveals mild degenerative changes at the acromioclavicular joint. He opines that these changes are consistent with a preexisting condition. He found no evidence of rotator cuff or labral tear, and no evidence of recent traumatic or causally related injury to the right shoulder. Dr. Fisher notes his findings as mild acromioclavicular hypertrophic changes.
With regards to his review of the plaintiff's cervical spine MRI film, Dr. Fisher summarized his study as demonstrating mild diffuse degenerative changes, most pronounced at the C5/6 level. He observed no herniation and opines that these findings are consistent with a pre-existing condition. Further, Dr. Fisher reports that "the mild disc bulges noted at C5/6 is compatible with the amount of degenerative changes present" and there was no radiographic evidence of recent traumatic or causally related injury to plaintiff's cervical spine.
Dr. Montalbano conducted an independent review of plaintiff's medical records. Based on his review, Dr. Montalbano states that the accident of November 4, 2005 did not cause any substantial injury to plaintiff's right shoulder. He based his opinion on the fact that plaintiff did not require urgent medical evaluation or treatment for the shoulder pain, and at the emergency room five days later, she did not complain of right shoulder pain. Dr. Montalbano notes that "a substantial delay in seeking medical evaluation and treatment would be unusual in the context of an injury to the shoulder that was substantial enough to cause internal derangement such as a lambrun and/or rotator cuff tear." He furtherstates that "the MRI did not reveal any findings that would be indicative of traumatic shoulder injury, such as bone contusion or Hill Sachs Lesion." Further, Dr. Montalbano opines that plaintiff did not sustain an acute injury to the cervical spine from the accident. He also opines that it would be extremely unusual to sustain two acute disc herniations as a result of the accident and do not have complaints of neck pain immediately following the accident. Additionally, Dr. Montalbano opines that the interpretation of the disc herniations in plaintiff's MRI of the cervical spine "is an extension of her pre-existing condition of degenerative disc disease which is evident throughout the spine and is not noted by the multiple level disc bulging."
Plaintiff's Contentions
In opposition to defendants' respective motions for summary judgment on the issue of "serious injury," plaintiff relies upon the plaintiff's deposition testimony; a November 29, 2005, and January 10, 2006 affirmed report of Dr. Aric Haucknecht, a neurologist; and a June 12, 2008 affirmed report of Dr. Jerry Lubliner.
In his affirmed report, Dr. Lubliner indicates that he first treated plaintiff on May 1, 2006. He notes that at the time of her visit, plaintiff was receiving physical therapy and was seen by Dr. Aric Hausknecher. Further, Dr. Lubliner states that plaintiff complained of pain in the right shoulder and neck. He notes that plaintiff had pain in the "internal rotation and abduction" and "pain with elevation of the shoulder." According to Dr. Lubliner, Neer and Hawkins tests were positive and Apprehension test was negative. His examination revealed external rotation weakness of one-grade of the right upper extremity. He diagnosed plaintiff with impingement syndrome of the right shoulder and cervical spine. Dr. Lubliner states he saw plaintiff again on May 23, 2006. At that time, he reviewed a report of her right shoulder MRI and observed a "partial thickness tear of the rotator cuff" and a "SLAP tear of the glenoid labrum." Dr. Lubliner recommended surgery of the right shoulder, which he performed at NYU Hospital for joint disease on November 21, 2006. Plaintiff visited with Dr. Lubliner again on November 28, 2006 and May 2, 2007. Based on his examination of the plaintiff, Dr. Lubliner concludes that she suffered a "Grade SLAP" tear and a cervical injury as a result of the November 4, 2005 accident." He opines, based on plaintiff's history, a review of her medical records and physical examination, that plaintiff will continue to have permanent deformities, permanent scarring of the right shoulder, permanent recurrent pain, and permanent weakness in her right shoulder. Further, Dr. Lubliner opines that the accident of November 24, 2005 was the cause of the "Grade SLAP" tear to plaintiff's right shoulder, the need for surgery and the permanent deformities. According to Dr. Lubliner, on May 2, 2007, plaintiff had a normal range of motion of the right shoulder and mild restriction of the cervical spine. Dr. Lubliner reports that he did not see plaintiff after May 2, 2007 because she had reached maximum medical improvement to her right shoulder. He also reports that he did not treat the plaintiff for her neck injuries until May 2, 2007.
In his November 29, 2005 affirmed report, Dr. Hausknecht, a neurologist, states that he performed a comprehensive history and physical examination of plaintiff on November 29, 2005. He notes that plaintiff was still experiencing pain in her neck and shoulder and she denied any significant prior history of neck or right shoulder problems. Dr. Hausknecht further notes that plaintiff missed one day of work as a counselor and three days of work as a job development manager. He notes that motor system test showed 5-weakness of the right shoulder abductor, and 5-weakness of the intrinsic muscles of both hands. He found cervical paravertebral tenderness and associated muscular spasm; spurling maneuver test was positive on the right; and range of motion test of the cervical spine showed limitations in the left and right lateral flexion. Dr. Hausknecht, accordingly, notes his impression as cervical derangement and right shoulder arthropathy. He concludes that plaintiff is partially disabled and he advised her to restrict her activities. Dr. Hausknecht advised the plaintiff to begin chiropractic treatments for her injuries and physical therapy for her shoulder injury. He describes plaintiff's progress as guarded. In a subsequent visit with Dr. Hausknecht on January 10, 2006, the doctor notes that plaintiff is working but has problems with activities of daily living. His examination at that time revealed pain with limited weakness of the right shoulder abductor; "5-weakness of the intrinsic muscles of the right hand; cervical and lumbar paravertebral tenderness and associated muscular spasm." Dr. Hausknecht states that plaintiff had a 25 percent loss of lateral flexion in the cervical spine on both sides. He reports his impression as cervical derangement with C2-3 and C3-4 disc bulges C4-5 and C5-6 disc herniations and right shoulder arthropathy. Further, Dr. Hausknecht reports that plaintiff has been symptomatic for over two months despite an adequate course of conservative treatment. He advised plaintiff to continue chiropractic treatment for her neck injury and physical therapy for her right shoulder injury. He opines that plaintiff may be an appropriate candidate for interventional pain management or surgical decompression. He again notes that plaintiff is partially disabled and he concludes that her prognosis is guarded
In reply, defendants reiterate that they have met their burden that plaintiff did not sustain a serious injury as defined by Insurance Law 5102 (d). Defendants also argue that plaintiff has failed to properly explain her cessation of treatment. Further, defendants point out that plaintiff's doctors have failed to address defendants' radiologist's independent findings of degeneration. Lastly, defendants argue that plaintiff has failed to demonstrate that she was curtailed from performing substantially all of her activities for the first 90 out of the 180 days following the accident, and has an unexplained one year and two months gap in medical treatment.
Discussion
On a motion for summary judgment to dismiss a complaint for failure to set forth a prima facie of serious injury as defined by Insurance Law § 5102 (d), the initial burden is on the defendant "to present evidence, in competent form, showing that plaintiff has no cause of action" ( Rodriguez v Goldstein, 182 AD2d 396). To prove plaintiff did not suffer serious injury, defendant must submit "the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" ( Grossman v Wright, 268 AD2d 79, 84). Once the defendant has shown, prima facie, that the plaintiff did not sustain a serious injury, the burden shifts to the plaintiff, who must then present a triable issue of fact through admissible evidence to successfully oppose defendants' summary judgment motion ( see Monette v Keller, 281 AD2d 523).
In the instant case, defendants have established a prima facie entitlement to summary judgment submitting the affirmed reports of Dr. Wayne Kerness, Dr. Alan Sorbin, Dr. David Fisher and Dr. Gregory Montalbano, all of which indicated plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Malave v Basikov , 45 AD3d 539 ; Tarhan v Kabashi , 44 AD3d 847). Thus, it was incumbent upon plaintiff to come forward with admissible evidence to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955; Hernandez v Lapidus, 307 AD2d 984).Plaintiff has failed to establish that she sustained a serious injury as defined by Insurance Law 5102 (d), in that she was unable to attend to her usual and customary activities for a period in excess of 90 days during the first 180 days following the accident. In order to establish serious injury under the 90/180 category, a plaintiff must submit medical evidence based on objective medical findings of a medically determined injury or impairment of a non-permanent nature which caused the alleged limitations of his daily activities ( (see Relin v Brotherton, 221 AD2d 840; Baker v Zalem, 202 AD2d 617). In the instant case, plaintiff's doctors failed to allege that plaintiff was incapacitated for the requisite statutory period (see Davis v NYCTA. 294 AD2d 531, 532 and there is no medical evidence presented to raise an issue of fact as to whether plaintiff was so disabled. Although plaintiff states in her affidavit that her injuries limited her from performing certain activities, such conclusory allegations are belied by the fact that plaintiff admitted at her deposition that she was confined to her home for three or four days after the accident, that and she lost approximately twenty days from employment at the Fortune Society, and three days from employment with the Interfaith Network ( see Ingram v Doe, 296 AD2d 530, 531). The conclusory allegation in plaintiff's affidavit of her inability to play hand ball, rollerblade and to lift much with her right hand, is insufficient to demonstrate that she sustained a medically determined injury or impairment which prevented her from performing substantially all of the material acts constituting her normal daily activities for not less than 90 of the first 180 days following the accident.
Further, plaintiff's submissions in opposition fails to rebut defendants' prima facie showing that she did not sustain a serious injury to her neck as a result of the November 4, 2005 accident. Plaintiff's doctors failed to address the findings of defendants' examining radiologist who observed only degenerative preexisting changes in the plaintiff's MRI films ( Pommells v Perez, 4NY3d 566 [2005]). Although plaintiff claimed that she sustained herniated and bulging discs in the subject accident, and Dr. Hausknecht noted his impression as cervical derangement with C2-3 and C3-4 disc bulges C4-5 and C5-6 disc herniations, the mere existence of a bulging or herniated disc is not conclusive of a serious injury in the absence of any objective evidence of a related disability or restriction (see Guzman v Michael Mgt., 266 AD2d 508, 509), particularly where, as here, defendants submit proof that the plaintiff had a full range of motion in her cervical spine and had no orthopedic or neurologic disabilities, and was capable of fully performing her normal daily work and living activities (see Duldulao c City of New York, 284 AD2d 296, 297 [ 2001).
However, plaintiff has successfully met her burden and raises a triable issue as to whether she sustained a serious injury to her right shoulder. The affirmed reports of Dr. Jerry Lubliner and Dr. Aric Haucknecht are sufficient to raise a triable issue of fact as to the seriousness of the injury to plaintiff's right shoulder. "It is well established that conflicting expert opinions may not be resolved on a motion for summary judgment"( Corbett v County of Onondaga, 291 AD2d 886, 887). The conflicting findings of the plaintiff's and defendants' physicians are alone sufficient to create a triable issue of medical fact as to whether plaintiff has sustained a serious physical injury to her right shoulder ( Pagano v Kingsbury, 182 AD2d 268).
Moreover, it remains to be ascertained at trial whether the one year and two month gap in plaintiff's treatment was attributable solely to plaintiff having reached maximum medical improvement with respect to her right shoulder (see Pommells v Perez , 4 NY3d 566 ; Hutchinson v R.F. Transit, Inc., 13 Misc 3d 1221 [A] [2006]; Greco v Chaudry, 11 Misc 3d 1090 [A] [2006]).
The conflict of the medical opinion over whether plaintiff has sustained a serious injury to her right shoulder is a question for the jury, precluding a determination on summary judgment as a matter of law as to plaintiff's right shoulder (see Zuckerman v City of New York, 49 NY2d 533).
Accordingly, the motion by defendants for summary judgment is granted in part and denied in part.
The foregoing constitutes the decision and order of this court.