Opinion
Index 17-606427
10-07-2019
DEVENE CAMPBELL, Plaintiff, v. THOMAS J. CATANZANO and B.A. CATANZANO, Defendants.
MD NICHOLS & CANE, LLP Attorney for Plaintiff. RICHARD T. LAU & ASSOCIATES Attorney for Defendants.
Unpublished Opinion
MOTION DATE 12-11-18.
ADJ. DATE 1-15-19.
MD NICHOLS & CANE, LLP Attorney for Plaintiff.
RICHARD T. LAU & ASSOCIATES Attorney for Defendants.
PRESENT: Hon. MARTHA L. LUFT, Acting Justice.
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motions/Order to Show Cause and supporting papers dated November 2, 2018; Notice of Cross-Motion and supporting papers; Answering Affidavits and supporting papers dated January 4.2019: Replying Affidavits and supporting papers dated January 10. 2019; Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by defendants for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury'' as defined in Insurance Law § 5102 (d) is denied.
This is an action to recover damages for personal injuries sustained by plaintiff when her vehicle was struck in the rear by a vehicle owned by defendant B.A. Catanzano and operated by defendant Thomas Catanzano. The accident allegedly occurred on October 2, 2015, on Acorn Street, at or near the intersection with Deer Park Avenue, in the Town of Babylon, New York. By her bill of particulars, plaintiff alleges that, as a result of the subject accident, she sustained serious injuries and conditions, including herniated and bulging discs in her cervical and lumbar regions.
Defendants move for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as 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 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."
In order to recover under the "permanent loss of use" category,, plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 N.Y.2d 295, 727 N.Y.S.2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system'” categories, either a specific percentage of the loss of range of motion must be ascribed, or there must be a sufficient description of the "qualitative nature" of plaintiff s limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose, and use of the body part (see Perl v Melter, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Cebron v Tuncoglu, 109 A.D.3d 631, 970 N.Y.S.2d 826 [2d Dept 2013]).
On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a '"serious injury"1 within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Akktar v Santos, 57 A.D.3d 593, 869 N.Y.S.2d 220 [2d Dept 2008]). The defendant may satisfy this burden by submitting the plaintiffs deposition testimony and the affirmed medical report of the defendant's own examining physician (see Moore v Edison, 25 A.D.3d 672, 811 N.Y.S.2d 724 [2d Dept 2006]; Farozes v Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706 [2d Dept 2005]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra: Boone v New York City Tr. Auth., 263 A.D.2d 463, 692 N.Y.S.2d 731 [2d Dept 1999]).
Here, defendants made a prima facie showing that plaintiff did not sustain a serious injury within the meaning oflnsurance Law § 5102 (d) through the affirmed report of their examining physician (see Bailey v Islam, 99 A.D.3d 633. 953 N.Y.S.2d 39 [ 1 st Dept 2012]; Sierra v Gonzalez First Limo. 71 A.D.3d 864, 895 N.Y.S.2d 863 [2d Dept 2010]; Staff v Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 [2d Dept 2009]). On June 6. 2018. approximately two years and eight months after the subject accident, defendants' examining orthopedist. Dr. Gary Kelman, examined plaintiff and performed certain orthopedic and neurological tests. including the foraminal compression test, the straight leg raising test, the impingement sign, and the O'Brien test. Dr. Kelman found that all the lest results were negative or normal, and that there was no spasm or tenderness in plaintiffs spine. Dr. Kelman also performed range of motion testing on plaintiffs spine and shoulders, using a goniometer to measure her joint movement, and found that plaintiff exhibited normal joint function. Dr. Kelman opined that plaintiff had no orthopedic disability at the time of the examination (see Willis v New York City Tr. Auth., 14 A.D.3d 696, 789 N.Y.S.2d 223 [2d Dept 2005]).
Further, at her deposition, plaintiff testified that immediately following the accident, she did not miss any time from work, although she missed two weeks from work approximately a month after the accident. She testified that there is no activity that she is unable to perform because of the accident, except for cleaning the bathtub and exercising at a gym. Plaintiffs deposition testimony established that her injuries did not prevent her from performing "substantially all" of the material acts constituting her customary daily activities during at least 90 out of the first 180 days following the accident (see Burns v McCabe, 17 A.D.3d 1111, 794 N.Y.S.2d 267 [4th Dept 2005]; Curry v Velez, 243 A.D.2d 442, 663 N.Y.S.2d 63 [2d Dept 1997]).
Thus, defendants met their initial burden of establishing that plaintiff did not sustain a permanent consequential limitation of use of a body organ or member or significant limitation of use of a body function or system, 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 within the meaning of Insurance Law § 5 102 (d) (see Gonzalez v Green, 24 A.D.3d 939, 805 N.Y.S.2d 450 [3d Dept 2005]).
The burden, therefore, shifted to plaintiff to raise a triable issue of fact (see Gaddy v Eyler. supra). A plaintiff claiming injury within the "limitation of use" categories must substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitation of movement caused by the injury and its duration (see Ferraro v Ridge Car Serv.. 49 A.D.3d 498, 854 N.Y.S.2d 408 [2d Dept 2008]; Mejia v DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 772 [2dDept 2006]; Laruffa v Yui Ming Lau, 32 A.D.3d 996, 821 N.Y.S.2d 642 [2d Dept 2006]; Cerisier v Thibiu, 29 A.D.3d 507, 815 N.Y.S.2d 140 [2d Dept 2006]). To prove significant physical limitation, a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based on a recent examination of the plaintiff or a sufficient description of the "qualitative nature" of plaintiffs limitations, with an objective basis, correlating plaintiff s 1 imitations to the normal function, purpose and use of the body part (see Perl v Meher, supra: Toure v Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Rovelo v Volcy. 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, supra; Cebron v Tuncoglu, supra). Furthermore, a plaintiff claiming serious injury who ceases treatment after the accident must offer a reasonable explanation for having done so (Pommells v Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380 [2005]; see Vasquez v John Doe #1, 73 A.D.3d 1033, 905 N.Y.S.2d 188 [2d Dept 2010]; Rivera v Bushwick RidgewoodProps., Inc., 63 A.D.3d 712, 880 N.Y.S.2d 149 [2d Dept 2009]).
Plaintiff opposes the motion, arguing defendants' expert report is insufficient to meet their burden on the motion. Plaintiff also argues, inter alia, that the affirmation of her treating physician, Dr. Nizarali Visram, raises a triable issue as to whether she suffered injury within the "significant limitation of use" category of Insurance Law § 5102 (d).
In his report, Dr. Visram states that he first examined plaintiff on January 7, 2016, approximately three months after the subject accident. During the initial consultation, plaintiff complained of pain in her neck, back, right shoulder, right arm, and buttocks. Dr. Visram administered range of motion testing on plaintiffs cervical and lumbar regions, using a goniometer to measure her joint movement. Dr. Visram found that there were significant range of motion restrictions in plaintiffs cervical region: 36 degrees of flexion (50 degrees normal). 42 degrees of extension (60 degrees normal), and 58 degrees of right rotation and 60 degrees of left rotation (80 degrees normal). He also found significant range of motion restrictions in plaintiffs lumbar region: 64 degrees of flexion (90 degrees normal) and 22 degrees of extension (30 degrees normal). Dr. Visram states that on December 13, 2018, he re-examined plaintiff and administered range of motion testing on her cervical and lumbar regions. Dr. Visram found that there were significant range of motion restrictions in plaintiffs cervical region of 64 degrees of right rotation and 60 degrees of left rotation (80 degrees normal).
Here, plaintiff submitted competent medical evidence raising a triable issue of fact as to whether she sustained a significant limitation of use of a body function or system constituting a serious injury as defined by Insurance Law § 5102 (d) (see Perl v Meher, supra; Gooden v Joseph, 137 A.D.3d 1215, 27 N.Y.S.3d 393 [2d Dept 2016J). In addition, as defendants have failed to establish, prima facie, a lack of causation, the burden does not shift to plaintiff to raise a triable issue of fact regarding causation or to explain any gap in treatment (see Pommells v Perez, supra; Magnono v DiMisa. 173 A.D.3d 1160. 101 N.Y.S.3d 630 [2d Dept 2019]; Lambropoulos v Gomez, 166 A.D.3d952, 86N.Y.S.3d 737 [2dDept2018]). Accordingly, defendants' motion for summary judgment dismissing the complaint is denied.