Opinion
Index No. 503686/2022 Motion Seq. No. 3
08-16-2023
FERDINAND DE LA CRUZ and FAUSTINA DE LA CRUZ, Plaintiffs, v. CARISMIR MARTINEZ and MOREL LEON, Defendants.
Unpublished Opinion
Date Submitted: 6/22/2023
DECISION /ORDER
Hon. Debra Silber, J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of defendants' motion for summary judgment.
Papers NYSCEF Doc.
Notice of Motion, Affirmations, Affidavits, and Exhibits Annexed......... 31-36
Affirmation in Opposition and Exhibits Annexed.................................... 38-49
Reply Affirmation.................................................................................... 50
Upon the foregoing cited papers, the Decision/Order on this application is as follows:
This is a personal injury action arising from an automobile accident that occurred on May 17, 2021. Plaintiffs have obtained summary judgment on the issue of liability, by order dated June 23, 2023. Plaintiff Ferdinand De La Cruz was driving and plaintiff Faustina De La Cruz, his wife, was his passenger. Plaintiff's car was rear-ended at a red light. The police came to the scene and took a report. The plaintiffs left the scene of the accident in an ambulance and were taken to the emergency room at Lutheran Hospital (now NYU), and subsequently sought other medical treatment. At the time of the accident, Ferdinand was approximately 66 years old, and Faustina was 59 years old.
Neither party provides a copy of plaintiffs' bill of particulars, so the court cannot determine what injuries plaintiffs claim they sustained in the accident. In his affirmation in opposition, plaintiffs' attorney states that Ferdinand injured his neck, low back, and right shoulder, and Faustina injured her neck, low back, left shoulder and left knee [Doc 38], Defendants' attorney describes the same injuries [Doc 32 ¶10], The court will proceed by assuming this is correct.
Defendants contend that they are entitled to summary judgment dismissing the complaint with regard to both plaintiffs, as neither plaintiff sustained "serious injuries" as a result of the accident, as defined by Insurance Law § 5102 (d). Defendants support their motion with an attorney's affirmation, the pleadings, plaintiffs' deposition transcripts, and an affirmed IME report from an orthopedist, Dr. Dana Mannor, for each plaintiff.
Ferdinand De La Cruz
Dr. Dana A. Mannor, an orthopedist, examined plaintiff Ferdinand De La Cruz on December 16, 2022, on behalf of the defendants. This was a year and a half year after the accident. His affirmed report is at Document 32. Dr. Mannor states that he reviewed a list of twelve of plaintiff's medical records. At the time of the exam, Dr. Mannor states that "Mr. De La Cruz denies any complaints today". He tested plaintiff's range of motion with a goniometer and reports that plaintiff had normal ranges of motion in his cervical, thoracic and lumbar spine, as well as in both shoulders, with no tenderness or spasm. Dr. Mannor reports that all related tests were negative.
The doctor concludes that plaintiff's cervical spine "sprain/strain," thoracic spine "sprain/strain," lumbar spine "sprain/strain," and right shoulder "sprain/strain" have all resolved, and states that "There is no disability. Mr. De La Cruz is capable of working without restrictions. There is no permanency."
Defendants contend that their medical evidence, combined with plaintiff's testimony at his EBT, eliminate all of the applicable categories of injury in the statute. Plaintiff testified at his EBT (held October 3, 2022) that he missed only three days from work as a maintenance worker at a residential building after the accident [EBT Tr. Doc 33 Page 9], and defendants argue that this testimony rules out the plaintiff's claim with regard to the 90/180-day category of injury. Plaintiff has not had any surgery as a result of the accident, counsel notes, and he testified that he had no future medical appointments or treatment appointments.
The court finds that defendants have made a prima facie showing of their entitlement to summary judgment and have shifted the burden of proof to the plaintiff (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955, 956-957 [1992]). On the issue of causation, Dr. Mannor offers no opinion, solely stating that plaintiff's "sprains/strains" have resolved. If a defendant's expert concedes that the alleged injuries were caused by the accident, the burden of proof does not shift to the plaintiff (see Novembre v Punnoose, 211 A.D.3d 961 [2d Dept 2022]). Dr. Mannor has not done so here.
In opposition to the motion, the plaintiff submits an affirmation of counsel and a six exhibits which the court will now review. The first, at Document 39, is plaintiff's emergency room record, which is certified. CPLR 4518 (c) specifies that hospital records are admissible without a live witness to authenticate them if they are certified by "the head of the hospital, laboratory, department or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose or by a qualified physician." The statute contains no requirement that the signature of the authenticator be notarized. Plaintiff complained of pain in his neck and lower back. He was given an x-ray and a CT scan of his chest with contrast, and a blood test. The reviewer wrote "No acute thoracic aortic pathology. Normal caliber aorta." He was given Tylenol and discharged.
The next exhibit is at Document 41, and consists of records from S&R Medical P.C. Additional records from this provider are at Document 43. They are not in admissible form. While hospital records can be certified, other medical records require an affirmation from a physician to authenticate them. A certification from a records custodian is insufficient. At Document 48, however, there is a recent affirmation from Yvette Davidov, M.D., who works at S&R Medical P.C. Dr. Davidov states in her affirmation that plaintiff came under her care a week after the accident. She describes her initial exam, and states that plaintiff, at her initial exam, demonstrated "severe tenderness upon palpation to C1 - C7, radicular complaints to the bilateral upper extremities, active and passive ranges of motion severely to moderately restricted on flexion, extension, rotation and side bending, and positive Spurling Test bilaterally; Thoraco-Lumbar Spine: tenderness upon palpation to T1-T12, L1-L5, muscle spasm, active and passive range of motion severely to moderately restricted to flexion, extension, rotation, and lateral bending, positive Straight Leg Raising Test bilaterally; Right Shoulder: severe tenderness upon palpation, to the glenohumeral joint, sternoclavicular joint, acromioclavicular articulation, clavicle, and bicipital groove, muscle spasm, active and passive range of motion severely to moderately restricted on flexion, extension, abduction, adduction, internal and external rotation due to pain and stiffness, positive Drop Arm Test." She referred him for MRIs and physical therapy. He had EMG/NCV testing. She recommended arthroscopic surgery of his right shoulder, but "the patient elected against surgery." He stopped treatment "on or about May 2022. Mr. Ferdinand had reached maximum medical improvement from one (1) year of conservative care. He was discharged from treatment and advised to continue at home exercise."
Dr. Davidov performed a follow-up exam on April 1, 2023, presumably to prepare the affirmation to oppose this motion. She tested the range of motion in his cervical and lumbar spine and in his right shoulder, and reports that his range of motion is still significantly restricted. Dr. Davidov concludes "Mr. De La Cruz has sustained serious physical injuries to his neck, low back, and right shoulder as a result of the motor vehicle accident which occurred on May 17, 2021. . . It is my professional opinion with a reasonable degree of medical certainty that Mr. De La Cruz's condition is now chronic and permanent. He underwent over one (1) year of conservative treatment which has failed to resolve his complaints of pain and physical limitations. Any further treatment at this point would be palliative in nature. The limitations of mobility of his neck, low back, and right shoulder will interfere with his daily activities. He will be unable to perform strenuous work indefinitely and full recovery appears highly unlikely."
Plaintiff's MRI reports are contained in Document 42. They are not in admissible form and were not considered.
Based upon the foregoing, the court finds that the plaintiff has sufficiently raised triable issues of fact regarding his claims of "a permanent consequential limitation of use of a body organ or member" and "a significant limitation of use of a body function or system", so as to warrant denial of the defendants' motion for summary judgment (see Young Chan Kim v Hook, 142 A.D.3d 551, 552 [2d Dept 2016]). Dr. Davidov's affirmation indicates significant, quantified restrictions in plaintiff's range of motion, both contemporaneously with the accident and recently, and his doctor opines that plaintiff's injuries were caused by the subject accident. Thus, he raises a "battle of the experts." This is sufficient to raise an issue of fact which requires a trial and the denial of the motion.
Faustina De La Cruz
Dr. Dana A. Mannor, an orthopedist, examined plaintiff Faustina De La Cruz on December 16, 2022, on behalf of the defendants. This was a year and a half year after the accident. His affirmed report is located at Document 36. Dr. Mannor states that he reviewed a list of eighteen of plaintiff's medical records. At the time of the exam, Dr. Mannor states that "Ms. De La Cruz did not report any current complaints." He tested plaintiff's range of motion with a goniometer and reports that plaintiff had normal ranges of motion in her cervical, thoracic and lumbar spine, as well as in both shoulders and both of her knees, with no tenderness or spasm. Dr. Mannor reports that all related tests were negative.
The doctor concludes that plaintiff's cervical spine "sprain/strain," lumbar spine "sprain/strain," and left knee "sprain/strain" have all resolved, and that, with regard to her left shoulder, plaintiff is "Status-post left shoulder arthroscopic surgery in 05/2022 -healed." Dr. Mannor states that "There is no disability. Ms. De La Cruz is capable of working without restrictions. There is no permanency."
Defendants contend that their medical evidence, combined with plaintiff's testimony at his EBT, eliminate all of the applicable categories of injury in the statute. Plaintiff testified at her EBT (held October 3, 2022) that she was not working at the time of the accident [EBT Tr. Doc 35 Pagel3], Plaintiff testified that she was discharged from the emergency room with instructions to take ibuprofen for pain. She then went to physical therapy for about six months, but it was not helping her [Doc 35 Page 31], Ms. De La Cruz had arthroscopic surgery to her left shoulder in May of 2022. After the surgery, she returned to physical therapy. In total, she went to physical therapy for more than a year [id. Page 35], She testified that before the accident, "I would go shopping. I would clean my house. I would do laundry. Everything that needed to be done at home." She was then asked, "after your accident and injuries that followed, were you able to do these things?" and she responded "not as before. Not the way I did them before, but with my right hand I made an effort to do things" [Doc 35 Pages 13-14], Plaintiff said "I cannot carry anything on my left arm ... My arm bothers me all the time. I cannot sleep on the left side of my arm. I cannot lift my arm - my hand all the way up. Everything has changed. . . I have to use my right hand for everything. I cannot play with my grandchildren the way I used to." [id. Pages 36-37], Defendants argue that this testimony rules out the plaintiff's claim with regard to the 90/180-day category of injury. Counsel avers [Doc 32 ¶¶36 - 38] that "[e]ven accepting that plaintiff had to curtail some activities, the record fails to show that such restrictions were medically indicated and lack of medical determination is fatal to plaintiff's claim. There must be sufficient proof that plaintiff's normal activities were substantially curtailed for the requisite period of time; a slight curtailment will not suffice. The phrase "substantially all" usual and customary daily activities means performance is limited to a great extent rather than a slight curtailment. Proof of what the usual and customary activities were and how they are limited are required. Inability to perform merely a few customary daily activities will not suffice." [internal citations omitted].
The court finds that defendants have made a prima facie showing of their entitlement to summary judgment and have shifted the burden of proof to the plaintiff (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345 [2002]; Gaddy vEyler, 79 N.Y.2d 955, 956-957 [1992]). On the issue of causation, Dr. Mannor offers no opinion, solely stating that plaintiff's "sprains/strains" have resolved. If a defendant's expert concedes that the alleged injuries were caused by the accident, the burden of proof does not shift to the plaintiff (see Novembre v Punnoose, 211 A.D.3d 961 [2d Dept 2022]). Dr. Mannor has not done so here.
In opposition to the motion, the plaintiff submits an affirmation of counsel and a number of exhibits which the court will now review. The first, at Document 40, is plaintiff's emergency room record, which is certified. Plaintiff complained of pain in her back and left shoulder. She was given a chest x-ray and discharged. She was told to take Ibuprofen if she was in pain.
The next exhibit is at Document 44, and consists of records from S&R Medical P.C. Additional records from this provider are at Document 47. They are not in admissible form. While hospital records can be certified, other medical records require an affirmation from a physician to authenticate them. A certification from a records custodian is insufficient. At Document 49, however, there is a recent affirmation from Yvette Davidov, M.D., who works at S&R Medical P.C. Dr. Davidov states in her affirmation that plaintiff came under her care a week after the accident. She describes her initial exam, and states that plaintiff, at her initial exam, demonstrated "tenderness upon palpation to C1 - C7 in her cervical spine, muscle spasm, active and passive ranges of motion severely to moderately restricted on flexion and extension, and positive Spurling Test bilaterally; Thoraco-Lumbar Spine: tenderness upon palpation to T1-T12, L1-L5, muscle spasm, active and passive range of motion severely to moderately restricted to flexion, extension, rotation, and lateral bending, positive Straight Leg Raising Test bilaterally; Left Shoulder: severe tenderness upon palpation, to the glenohumeral joint, sternoclavicular joint, acromioclavicular articulation, clavicle, and bicipital groove, muscle spasm, active and passive range of motion severely to moderately restricted on flexion, extension, abduction, adduction, internal and external rotation due to pain and stiffness, positive Drop Arm Test; Left Knee: Moderate to severe tenderness of the medial plateau, lateral femoral condyle, tibial tuberosity, head of fibula and patella." She referred plaintiff for MRIs and physical therapy. She had EMG/NCV testing. There were about a dozen follow-up exams. Dr. Davidov recommended arthroscopic surgery to plaintiff's left shoulder, which was done on May 20, 2022. Plaintiff then resumed physical therapy until July of 2022, when "it was determined that Ms. De La Cruz had receive the maximum medical benefit of conservative treatment."
Dr. Davidov performed a follow-up exam on April 1, 2023, presumably to prepare the affirmation to oppose this motion. She tested the range of motion in plaintiff's cervical and lumbar spine and in her left shoulder, and reports that plaintiff's range of motion is still significantly restricted. Dr. Davidov concludes "Ms. De La Cruz has sustained serious physical injuries to her neck, low back, left shoulder and left knee as a result of the motor vehicle accident which occurred on May 17, 2021. .. It is my professional opinion with a reasonable degree of medical certainty that Ms. De La Cruz's condition is now chronic and permanent. She underwent over fifteen (15) months of conservative treatment and a left shoulder arthroscopy, all of which have failed to resolve her complaints of pain and physical limitations. Any further treatment at this point would be palliative in nature. The limitations of mobility of her neck, low back, left shoulder and left knee will interfere with her daily activities. She will be unable to perform strenuous work indefinitely and full recovery appears highly unlikely."
Plaintiff's MRI reports are contained in Document 46. They are not in admissible form and were not considered.
Based upon the foregoing, the court finds that the plaintiff has sufficiently raised triable issues of fact regarding her claims of "a permanent consequential limitation of use of a body organ or member" and "a significant limitation of use of a body function or system", so as to warrant denial of the defendants' motion for summary judgment (see Young Chan Kim v Hook, 142 A.D.3d 551, 552 [2d Dept 2016]). Dr. Davidov's affirmation indicates significant, quantified restrictions in plaintiff's range of motion, both contemporaneously with the accident and recently, and opines that plaintiff's injuries were caused by the subject accident. Thus, she raises a "battle of the experts." This is sufficient to raise an issue of fact which requires a trial and the denial of the motion.
Accordingly, it is ORDERED that the defendants' motion is denied with regard to both plaintiffs.
This constitutes the decision and order of the court.