Opinion
Index No. 712659/19 Motion Seq. No. 2
03-31-2022
Francois Day, Plaintiff, v. Abdulhaq Shah, Jane or John DOE, and Ermano Fils-Aime, Defendants.
Unpublished Opinion
Motion Date: 1/13/22
Present: Honorable Phillip Hom Justice
SHORT FORM ORDER
PHILLIP HOM, J.S.C.
The following e-filed documents, listed by NYSCEF document number, were read on this motion and cross-motion by Defendants for summary judgment.
| PAPERS | NUMBERED |
| Notice of Motion-Statement of Material Facts-Affidavits-Exhibits................ | 30 - 38 |
| Affirmation in Opposition-Response to Statement of Material Facts………. | 54 - 59 |
| Replying……………………………………………………………………... | 60 |
| Notice of Cross-Motion-Statement of Material Facts-Affidavits-Exhibits..... | 46 - 49 |
| Affirmation in Opposition-Response to Statement of Material Facts………. | 54 - 59 |
| Replying…………………………………………………………………….. | 61 |
Upon the foregoing papers, it is ordered that this motion and cross-motion by Defendants for summary judgment, are determined as follows:
Plaintiff Francois Day ("Plaintiff") commenced this action to recover for injuries he allegedly sustained in a motor vehicle crash that occurred on January 16, 2018, on Clarendon Road at or near East 23rd Street, County of Kings, New York. Plaintiff alleges that he was a passenger in a vehicle, owned by Defendant Jane or John Doe and operated by Defendant Ermano Fils-Aime ("Fils-Aime"), when it was rear-ended by a vehicle owned and operated by Defendant Abdulhaq Shah ("Shah"; collectively: "Defendants"). Fils-Aime moves and Shah cross-moves for summary judgment on the basis that Plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d). Plaintiff opposes.
Plaintiff identified the owner of the Fils-Aime vehicle as Ronald Jean Louis in his examination under oath and his examination before trial; however, Plaintiff did not move to add him as a defendant.
In a summary judgment motion, the movant has the initial burden of submitting sufficient evidence eliminating any material issues of fact and demonstrating a prima facie entitlement to judgment as a matter of law (see Giuffrida v Citibank Corp., 100 N.Y.2d 72 [2003]; Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). Only when the movant satisfies this prima facie burden does the burden shift to the opponent to show that material issues of fact exist (id.). Thus, where the movant does not satisfy this initial burden, summary judgment is denied regardless of the sufficiency of the opposing papers (see Voss v Netherlands Ins. Co., 22 N.Y.3d 728, 734 [2014]).
Of the several categories ("Subcategory" or "Subcategories") of "serious injury" listed in the statutory definition under Insurance Law § 5102 (d), four are relevant here: "[1] permanent loss of use of a body organ, member, function or system [Subcategory: "permanent loss of use"]; [2] permanent consequential limitation of use of a body organ or member [Subcategory: "permanent consequential limitation of use"]; [3] significant limitation of use of body function or system [Subcategory: "significant limitation of use"]; [and] [4] a medical 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 [Subcategory: "90/180"]" (Insurance Law § 5102 [d]).
In support, Fils-Aime submits, among other things, the Bill of Particulars ("BP") (EF Doc. No. 34), the transcript of Plaintiff's examination under oath ("EUO") (EF. No. 35), the transcript of Plaintiff's examination before trial ("EBT") (EF Doc. No. 36), and an affirmation of L. Sean Thompson, M.D., a Board-Certified Orthopedic Surgeon ("Dr. Thompson") (EF Doc. No. 37). In support of the cross-motion, Shah submits, among other things, an attorney affirmation (EF Doc. No. 47) referring the Court to Fils-Aime's submissions.
In opposition, Plaintiff submits, among other things, a Final Narrative Report by Denny Xavier Rodriguez, M.D. ("Dr. Rodriguez") (EF Doc. No. 58) and an affirmation of Guenadi Amoachi, M.D., a Board-Certified Radiologist ("Dr. Amoachi"), coupled with medical records from Nova Medical Diagnostic, PC (EF Doc. No. 58). Plaintiff also submits other medical records and reports that were certified by Lana Berg, Secretary for Alignment Chiropractic P.C. ("Berg"); said records include records and reports of other entities, e.g., EDX Chiropractic PC and PMR Medical &Diagnostic, P.C. (EF Doc. No. 58). The Court finds that Plaintiff does not lay the proper foundation for the other medical records and reports (see CPLR 4518 [a] and 2106; Nicholson v Kwarteng, 180A.D.3d 695, 696 [2d Dept 2020]; Irizarry v Lindor, 110 A.D.3d 846, 847 [2d Dept 2013]; Daniels v Simon, 99 A.D.3d 658, 660 [2d Dept 2012]; McLoud v Reyes, 82 A.D.3d 848, 848 [2d Dept 2011]; Bronstein-Becher v Becher, 25 A.D.3d 796, 797 [2d Dept 2006]). Additionally, the medical conclusions and opinions contained in those records were not sworn or affirmed and are inadmissible (id.). Neither Dr. Amoachi's Affirmation nor Berg's certification cure these defects (id.).
Gap in Treatment
Defendants argue that this action should be dismissed, because Plaintiff discontinued treatment merely three (3) months after the subject crash. Defendants rely on Plaintiff's EUO testimony, in which he stated that he ceased all treatment after three (3) months on his own volition, because he wanted to go to Florida for vacation. Plaintiff further testified that he did not resume treatment after vacation. However, over two (2) years later during Plaintiff's EBT, he testified that he stopped all treatment, because the insurance stopped paying. This answer is the bare minimum required to raise an issue regarding "some reasonable explanation" for the discontinuance of treatment (see Ramkumar v Grand Style Transp. Enterprises Inc., 22 N.Y.3d 905, 906-07 [2013]).
The Court recognizes that Plaintiff, while testifying under oath, provided two (2) completely different reasons for stopping treatment; however, the contradictions within Plaintiff's EUO and EBT testimonies raise issues of credibility for the trier of fact to resolve (see Cruz v New York City Transit Authority, 31 A.D.3d 688 [2d Dept 2006]; Loughlin v City of New York, 186 A.D.2d 176 [2d Dept 1992]).
Subcategory: Permanent Loss of Use
To qualify as a "serious injury" within the meaning of this Subcategory, "permanent loss of use" must be total (see Oberly v Bangs Ambulance Inc., 96 NY 295, 299 [2001]; Nesci v Romanelli, 74 A.D.3d 765, 766-67 [2d Dept 2010]). The evidentiary submissions demonstrate that Plaintiff did not sustain a total loss of any body part or organ (id.). Therefore, Plaintiff's permanent loss of use claim is dismissed.
Subcategories: Permanent Consequential Limitation of Use and Significant Limitation of Use
"[T]o prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury...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" (Toure v Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 350 [2002]). Evidence of a herniated disc, a bulging disc, a shoulder impingement, a tear in tendons or a tear in a ligament alone is insufficient to establish a serious injury; there must be additional objective medical evidence establishing that the accident resulted in significant physical limitations (see Pommells v Perez, 4 N.Y.3d 566, 574 [2005]; McLoud, 82 A.D.3d at 849; Larson v Delgado, 71 A.D.3d 739, 740-41 [2d Dept 2010]; Garcia v Solbes, 41 A.D.3d 426, 427 [2d Dept 2007]).
On October 8, 2020, Dr. Thompson conducted an independent orthopedic examination of Plaintiff and reviewed, among other things, Plaintiff's medical records and radiographic reports/images. Dr. Thompson noted that Plaintiff was in a prior motor vehicle crash in which he injured his neck and back in 2015.
Plaintiff's EBT testimony shows that he injured his lower back in a 2006 crash and then again in a 20 15 crash. During his EBT, Plaintiff also testified that he never injured his neck prior to the subject crash in 2018; however, during his EUO, he testified that he injured his back and neck in a 2016 motor vehicle crash.
Dr. Thompson provided a qualitative assessment and reported loss of range of motion ("ROM") of Plaintiff's cervical spine, i.e., extension 40 degrees (60 degrees being normal), right rotation 45 degrees (80 degrees being normal), and left rotation 45 degrees (80 degrees being normal). Dr. Thompson further reported loss of ROM in Plaintiff's lumbar spine, i.e., flexion 30 degrees (60 degrees being normal), and extension 20 degrees (25 degrees being normal). He opined that said losses of ROM were due to pre-existing conditions. Dr. Thompson further concluded that the loss of ROM was subjective in nature, because the testing is done actively by Plaintiff and at his own volition. Dr. Thompson further found that the Distraction Test, Compression Test, Jackson's Test, and Soto-Hall Test were all negative. He also noted that there was no muscle spasm upon palpation over the paracervical muscles.
Dr. Thompson also provided a qualitative assessment and reported loss of ROM of Plaintiff's lumbar spine, i.e., flexion 30 degrees (60 degrees being normal), and extension 20 degrees (25 degrees being normal). He opined that the loss of ROM of Plaintiff's lumbar spine was also subjective in nature and due to pre-existing conditions. Dr. Thompson noted that there was no muscle spasm upon palpation over the paralumbar muscles, and no complaint of tenderness. He found that the straight leg raise test was negative, as was the heel-toe-walk test.
Dr. Thompson provided a qualitative assessment and reported minor loss of ROM of Plaintiff's right knee, i.e., flexion 130 degrees (150 degrees being normal). He opined that there was no effusion or atrophy. Dr. Thompson found that the Lachman's test was negative. He stated that the Anterior drawer sign and Posterior drawer sign were both negative. Dr. Thompson concluded that patellofemoral crepitus was not present, and the Valgus & Varus stress test was stable. While Dr. Thompson opined that there is a partial tear of the ACL, he found that Plaintiff's right knee was orthopedically intact, with no objective signs of internal derangement. He stated that Plaintiff's right knee also showed no signs of instability. Finally, Dr. Thompson opined that the alleged injuries to Plaintiff's cervical spine, lumbar spine, and right knee were resolved.
The Court finds that Defendants demonstrate that Plaintiff's alleged injuries to his cervical spine and lumbar spine were pre-existing conditions and not a result of the subject crash. Additionally, the Court finds that the loss of ROM in Plaintiff's right knee was merely a minor limitation and should be classified as insignificant within the meaning of the no-fault statute (see Toure, 98 N.Y.2d at 353; Gaddy v Eyler, 79 N.Y.2d 955, 957 [1992]; Licari v Elliott, 57 N.Y.2d 230, 233-36 [1982]). Thus, the Court finds that Defendants establish their prima facie burden of showing that Plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) under Subcategories: Permanent Consequential Limitation of Use and Significant Limitation of Use.
In opposition, Plaintiff relies on Dr. Rodriguez's Final Narrative Report. On September 22, 2021, Dr. Rodriguez conducted an independent examination of Plaintiff and reviewed, among other things, Plaintiff's medical records and Dr. Thompson's affirmation.
Dr. Rodriguez provided a qualitative assessment and reported loss of ROM in Plaintiff's cervical spine, i.e., flexion 50 degrees (60 degrees being normal)-approx. 17% loss, extension 40 degrees (45 degrees being normal)-approx. 11% loss, lateral flexion 40 degrees (45 degrees being normal)-approx. 11% loss, and lateral rotation 70 degrees (80 degrees being normal)-approx. 12% loss. The Court finds that the loss of ROM in Plaintiff's cervical spine is insignificant within the no-fault statute (id.; see also Cebron v Tuncoglu, 109 A.D.3d 631, 633 [2d Dept 2013]; Il Chung Lim v Chrabaszcz, 95 A.D.3d 950, 951 [2d Dept 2012]; McLoud, 82 A.D.3d at 849).
Dr. Rodriguez provided a qualitative assessment and reported loss of ROM in Plaintiff's lumbar spine. However, Dr. Rodriguez failed to address Dr. Thompson's findings that Plaintiff had pre-existing conditions to his cervical spine and lumbar spine. Dr. Rodriguez also failed to acknowledge that Plaintiff had been involved in three (3) prior accidents in which he injured his cervical spine and/or lumbar spine. These omissions render Dr. Rodriguez's conclusions that Plaintiff's cervical spine and lumbar spine injuries were the result of the subject crash speculative (see Franchini v Palmieri, 1 N.Y.3d 536, 537 [2003]; Reefer v Adom Rental Transport, Inc., 68 A.D.3d 1086, 1087 [2d Dept 2009]; Nicholson v Allen, 62 A.D.3d 766, 767 [2d Dept 2009]; Laurent v McIntosh, 49 A.D.3d 820, 821 [2d Dept 2008]; Cruz v Calderone, 49 A.D.3d 798, 798 [2d Dept 2008]; Luciano v Luchsinger, 46 A.D.3d 634, 634-35 [2d Dept 2007]).
Dr. Rodriguez further provided a qualitative assessment and reported loss of ROM of Plaintiff's right knee. Dr. Rodriguez opined that Plaintiff "sustained a moderate to severe permanent disability to his right knee, cervical spine and lumbar spine that has resulted in a significant limitation of use of his right knee, cervical spine and lumbar spine." The Court finds that Dr. Rodriguez's recitation of the words "permanent" and "significant limitation" was tailored to meet the statutory requirement, and insufficient to raise a triable issue of fact (see Marte v New York City Transit Authority, 253 A.D.2d 519, 519-20 [2d Dept 1998]; Burke v Galli, 242 A.D.2d 595, 596 [2d Dept 1997]; Panisse v Jrs. Truck Rental, Inc., 239 A.D.2d 397, 397 [2d Dept 1997]; Lincoln v Johnson, 225 A.D.2d 593, 594 [2d Dept 1996]).
Significantly, Dr. Rodriguez failed to specify the objective tests performed to determine the loss of ROM in Plaintiff's cervical spine, lumbar spine, and right knee (see Bacon v Bostany,104 A.D.3d 625, 628 [2d Dept 2013]; Gamberg v Romeo, 289 A.D.2d 525, 526 [2d Dept 2001]; Passarelle v Burger, 278 A.D.2d 294, 294 [2d Dept 2000]; Herman v Church, 276 A.D.2d 471, 471 [2d Dept 2000]; Merisca v Alford, 243 A.D.2d 613, 614 [2d Dept 1997]; Lincoln, 225 A.D.2d at 593-34; see generally Linton v Nawaz,62 A.D.3d 434, 436 [1st Dept 2009]). Thus, Plaintiff fails to raise a triable issue under these Subcategories (id.).
Subcategory: 90/180
Defendants establish that Plaintiff did not sustain a serious injury under the 90/180-day subcategory, by submitting Plaintiff's EUO and EBT testimony, which revealed that he did not miss any days from work in the first 180 days following the crash (see Kabir v Vanderhost, 105 A.D.3d 811, 811 [2d Dept 2013]; Beltran v Powow Limo, Inc., 98 A.D.3d 1070, 1071 [2d Dept 2012]; Valera v Singh, 89 A.D.3d 929, 930-31 [2d Dept 2011]; Bamundo v Fiero, 88 A.D.3d 831, 831 [2d Dept 2011]; Jean v Labin-Natochenny, 77 A.D.3d 623, 624 [2d Dept 2010]; McIntosh v O'Brien, 69 A.D.3d 585, 587 [2d Dept 2010]). Furthermore, Plaintiff testified, in effect, that he continued to perform substantially all his usual and customary daily activities. While Plaintiff testified that he suffered pain while walking upstairs, sitting, and driving, such testimony does not establish that he suffered a serious injury under the 90/180 Subcategory (see Gaddy, 79 N.Y.2d at 958; Lanzarone v Goldman, 80 A.D.3d 667, 669 [2d Dept 2011]).
In Plaintiff's EUO, when asked whether he missed any time from work as a result from the subject crash, he responded, "No, not really, a couple of days. That's it." However, during his EBT, Plaintiff testified that he did not miss any work.
Dr. Thompson also noted that Plaintiff did not miss any work as a result of the motor vehicle crash.
In opposition, Plaintiff fails to raise a triable issue of fact as to whether his alleged injuries prevented him from performing substantially all his usual and customary daily activities during at least 90 of the first 180 days following the subject crash (id.).
In accordance with the foregoing, it is hereby ORDERED that this motion and crossmotion by Defendants for summary judgment are granted in their entirety; and it is further
ORDERED that Plaintiff's Complaint is hereby dismissed; and it is further
ORDERED that Defendants shall serve a copy of this Short Form Order with Notice of Entry upon Plaintiff, within twenty (20) days from the date of entry.
This constitutes the Decision and Order of this Court.