Opinion
12343-07.
January 30, 2009.
Morrison and Wagner, Attorneys for Plaintiff, NY.
Richard T. Lau Associates, By: Kathleen E. Fioretti, Esq., Attorney for Defendants, NY.
The following papers have been read on this motion:
Notice of Motion, dated 10-20-08 ................................ 1 Affirmation in Opposition, dated 12-9-08 ........................ 2 Reply Affirmation, dated 1-16-09 ................................ 3
The defendant's motion for summary judgment pursuant to CPLR § 3212 seeking dismissal of plaintiff's complaint on the basis that plaintiff has failed to sustain a "serious injury" within the purview of the Insurance Law § 5102(d) is denied.
The underlying action results from an automobile accident which occurred on June 7, 2006, whereby the vehicle that plaintiff was operating was in contact with a vehicle operated by one of the defendants and owned by the other defendant. Plaintiff alleges that as a consequence of said accident he has sustained a "serious injury" within the ambit of Insurance Law § 5102(d). Serious injury" is defined by § 5102(d) of the New York Insurance Law as follows:
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 persons' usual and customary daily activities for not less than ninety days during one hundred and eighty days immediately following the occurrence of the injury or impairment. (Ins. Law § 5102(d)).
On a motion for summary judgment, the movant must establish his or her cause of action or defense sufficient to warrant a court directing judgment in its favor as a matter of law. Junco v. Ranzi, 288 AD2d 440 (2d Dept. 2001); Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986), Rebecchi v. Whitmore, 172 AD2d 600, (2nd Dept. 1991). "The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact"( Frank Corp. v. Federal Ins. Co., supra at 967; GTF Mktg. V. Colonial Aluminum Sales, 66 NY2d 965 (1985), Rebecchi v. Whitmore, supra at 601.
Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the Court deciding this type of motion is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist. See Barr v. County of Albany, 50 NY2d 247 (1980); Daliendo v. Johnson, 147 AD2d 312, 317 (2nd Dept. 1989).
Defendant bears the burden of establishing that the plaintiff did not suffer a "serious injury" as enumerated in Article 51 of the Insurance Law § 5102(d). Gaddy v. Eyler, 79 N.Y.2d 955 (1992). Upon such a showing, it becomes incumbent upon the nonmoving party to come forth with sufficient admissible evidence to raise an issue of fact as to the existence of a "serious injury". Licari v. Elliott, 57 N.Y.2d 230 (1982).
Within the context of the defendant's burden, when presented with claims indicating bulging or herniated discs, defendant through medical experts must demonstrate that such conditions are not causally related to the subject automobile accident or that they do not constitute a "serious injury". Esony v. Benitez, 2 AD3d 673 (2d Dept. 2003); Gray v. Lasurdo, 302 A.D.2d 560 (2d Dept. 2003); Chaplin v. Taylor, 273 A.D.2d 188 (2d Dept. 2000).
The question before the court is whether the medical evidence proffered by the defendant is sufficient to meet the burden. Specifically, the court needs to inquire whether the conclusions adequately attribute causality of the injuries to something other than the subject automobile accident or that such conditions are not "serious injuries". Chaplin, supra; Gray, supra. The same analysis applies to plaintiff's claim of injury to his right knee.
If a defendant contends that there was no injury, then defendant must submit evidence showing that objective testing was performed, that the findings were normal in comparison to what is to be considered as normal. Kavanaugh v. Singh, 34 AD3d 744 (2d Dept. 2006).
In addressing the issue as to the existence of a "serious injury" the court initially looks to the pleadings. In the Bill of Particulars plaintiff, who was 18 years of age when the accident occurred, alleges having sustained: right knee injury requiring arthroscopic surgery with related sequelae and lumbar spine injury consisting in the main of bulges at L3-4, L4-5, and L5-S1. The instant application is supported by the affirmed medical report of Dr. Farkas, an orthopedic surgeon, who examined the plaintiff on May 7, 2008, nearly two years post accident and nearly one year post surgery, at which time he conducted a physical examination of the plaintiff, conducted specified tests, reported quantified results and compared such results to normal conditions. In addition to his examination, Dr. Farkas also reviewed numerous medical reports. The doctor concluded that plaintiff sustained resolved lumbar sprain and resolved sprain of both knee (sic) but conceded a causal relationship between plaintiff's complaints and the accident. Dr. Farkas did not review the MRI of the plaintiff's right knee.
Also submitted is an unaffirmed report from Quality Medical Healthcare who examined plaintiff on a referral from his treating physician which finds as to the right knee, "possible internal derangement" and does not address plaintiff's lumbar complaints. This report is of limited usefulness.
Dr. Rafiy an orthopedist examined plaintiff two months post accident on behalf of plaintiff's no fault insurer and prepared an affirmed report which defendant has submitted, in which he makes diagnoses of resolved lumbar sprain/strain and resolved knee sprains. However, this report is of limited utility because it does not quantify the results of the lumbar range of motion tests and addresses the right knee in only a limited way without quantifying or otherwise satisfactory explaining the tests performed. Dr. Rafiy did not review any medical records or MRIs. Thus, his examination does not sufficiently serve the defendants' purpose.
Defendant has also submitted an affirmed report from Dr. Cohn, a radiologist who examined plaintiff's right knee MRI taken shortly after the accident, and concluded that the accident did not cause any injury. She attributes all abnormal findings to pre-existing conditions rather than trauma related injuries, and speculates that plaintiff's knee problems might be from engaging in sports activities. Dr. Cohn does not address plaintiff's claim of lumbar injury.
Also submitted by defendants are copies of plaintiff's emergency room records, an MRI report of his left knee and a one page office visit note from Dr. Manouel documenting a pre-operative examination of plaintiff's right knee.
In order to establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by a plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected organ, member, function or system. Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 (2002). Subjective complaints of pain alone are insufficient to establish a prima facie case of serious injury. Munoz v Hollingsworth, 18 AD3d 278, 279 (1st Dept. 2005). The movant has the initial burden of establishing a prima facie entitlement to judgment as a matter of law. Hughes v Cai, 31 AD3d 385 (2nd Dept. 2006). The proof must be viewed in a light most favorable to the non-moving party, here the plaintiff. Perez v Exel Logistics, Inc., 278 AD2d 213, 214 (2nd Dept. 2000). If the movant meets that burden, the burden shifts to the plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that he/she sustained a serious injury or that there are questions of fact as to whether the purported injury, in fact, is serious. Flores v Leslie, 27 AD3d 220, 221 (1st Dept. 2006).
A defendant who seeks summary dismissal of plaintiff's complaint has the initial burden of presenting evidence, in competent form, showing that plaintiff did not sustain a serious injury and, therefore, has no cause of action. Toure v Avis Rent A Car Sys., Inc., supra at p. 353; Gaddy v Eyler, 79 NY2d 955, 957 (1992). The Court of Appeals has held that whether a limitation of use or function is significant or consequential 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 the body part. Dufel v Green, 84 NY2d 795, 798 (1995).
In order to support their application for summary judgment, the defendants were compelled to present competent proof in admissible form demonstrating that plaintiff did not suffer a serious injury. The Court finds that defendants have failed to meet their burden of making out a prima facie showing that plaintiff did not suffer a "serious injury" under the Insurance Law. Insurance Law § 5102(d). See Coburn v. Samuel, 44 AD3d 698 (2d Dept. 2007).
The report of Dr. Farkas, conducted two years post accident, does not address plaintiff's claims of lumbar bulges and right knee injury. As to the claim of right knee injury, the Farkas report and examination is completely deficient. Dr. Cohn addresses only the right knee and fails to address the lumbar complaints. See Holtzman v. Bishop, 35 AD3d 815 (2d Dept. 2006).
The remaining reports of Dr. Azar (dealing with a different knee) Quality Medical, which lacks any quantifications of ranges of motion, and Dr. Rafiy which suffers from the same infirmities as the report of Quality Medical, provide scant information as to plaintiff's condition prior to his surgery.
Accordingly, this Court is required to deny the motion as it is directed to plaintiff, without consideration of the strength of the opposing papers. See generally, Winegrad v New York University Med. Ctr., 64 NY2d 851 (1985).
However, plaintiff has demonstrated the existence of issues of fact as to whether he sustained a serious injury which are sufficient to cause a denial of this motion.
In opposition, the plaintiff submits his own affidavit, an affirmation of treating Dr. Opam and an affidavit of Dr. Manouel, an orthopedic surgeon, who operated on plaintiff's knee.
As to the statutory categories of permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system, the Court of Appeals has held that whether a particular limitation is consequential or significant is a question of medical significance and involves a determination as to the degree or nature of the injury based upon the normal function, purpose and use of the particular body part. Toure v. Avis Rent a Car Systems Inc., 98 NY2d 345 (2002). Here medical evidence which ascribes a numeric percentage loss to the plaintiff's loss of range of motion regarding both the lumbar spine and his right knee, together with the objectively based opinions as to permanency and causality are sufficient to support a claim of "serious injury" and thus raise a triable issue of facts which preclude summary judgment. ( Toure, supra.) Plaintiff's evidence demonstrates quantified limitations of lumbar motion and knee injury. Garner v. Tong, 27 AD3d 401 (1st Dept. 2006); Nelms v. Khokhar, 12 AD3d 426 (2d Dept. 2004); Mazo v. Wolfosky, 9 AD3d 452 (2d Dept. 2004). See Engles v. Claude, 39 AD3d 357 (1st Dept. 2007); Squires v. Mumphrey, 36 AD3d 607 (2d Dept. 2007); Pollas v. Jackson, 2 AD3d 700 (2d Dept. 2007).
Based upon the foregoing, the defendant's motion for summary judgment seeking dismissal of plaintiff's complaint is hereby denied.
This shall constitute the Decision and Order of this Court.