Opinion
INDEX NO. 518004/2016
09-18-2018
YWANNA DICKERSON, Plaintiff, v. MV TRANSPORTATION, INC., MTA/NEW YORK CITY TRANSIT-PARATRANSIT, CITY OF NEW YORK, NEW YORK CITY TRANSIT AUTHORITY ACCESS-A-RIDE and HENRY O. COSTON, JR., Defendant
NYSCEF DOC. NO. 54 Motion Date: 9-10-18
Motion Cal. Nos: 12-13
DECISION/ORDER
The following papers numbered 1 to 5 were read on this motion:
| Papers: | Numbered: |
|---|---|
| Notice of Motion/Order to Show CauseAffidavits/Affirmations/Exhibits/Memos of Law | 1 |
| Answering Affirmations/Affidavits/Exhibits | 2 |
| Reply Affirmations/Affidavits/Exhibits | 3 |
| Other | |
| Notice of Cross-MotionAffidavits/Affirmations/Exhibits/Memos of Law | 4 |
| Answering Affirmations/Affidavits/Exhibits | 5 |
| Reply Affirmations/Affidavits/Exhibits | |
| Other |
Upon the foregoing papers, the motion and cross-motion are decided as follows:
In this action to recover damages for personal injuries arising out of a motor vehicle accident that occurred on July 18, 2015, the defendants, MV TRANSPORTATION, INC., MTA/NEW YORK CITY TRANSIT-PARATRANSIT, CITY OF NEW YORK, NEW YORK CITY TRANSIT AUTHORITY ACCESS-A-RIDE and HENRY O. COSTON, JR., move pursuant to CPLR 3212 for an order awarding them summary judgment dismissing plaintiff's complaint on the ground that the plaintiff, YWANNA DICKERSON, did not suffer a "serious injury" within the meaning of Insurance Law § 5102(d). The plaintiff cross-moves for an order pursuant to CPLR §§ 3124 and 3126 striking defendants' answer and/or precluding defendants' from introducing evidence at trial due to their failure to provide discovery. The motion and cross-motion are consolidated for disposition.
The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). Contrary to plaintiff's contention, defendants demonstrated, prima facie, that the plaintiff did not suffer a "serious injury" under the 90/180 day category by demonstrating that she was confined to her bed and home for just one day and that she only missed one day of work (see Richards v. Tyson, 64 A.D.3d 760, 761, 883 N.Y.S.2d 575; Kabir v. Vanderhost, 105 A.D.3d 811, 811, 962 N.Y.S.2d 703, 704).
In opposition, the plaintiff failed to raise a triable issue of fact. The only medical proof submitted by plaintiff in opposition to the motion that was in admissible form was the affirmation of Dr. I.S. Ramachandran Nair dated June 21, 2018 and the affirmation of Dr. Vadim Kolesnikov dated June 8, 2018 setting from this interpretations of the MRI studies of plaintiff's cervical spine taken on October 12, 2015 and lumbar spine taken on November 11, 2105.
Although Dr. Nair set forth the results of the range of motion studies he conducted of plaintiff's cervical and lumbar spine on August 20, 2015, he did compare his findings to normal findings (see Starkey v. Curry, 94 A.D.3d 866, 866, 941 N.Y.S.2d 882; Ambroselli v. Team Massapequa, Inc., 88 A.D.3d 927, 928, 931 N.Y.S.2d 652; McKenzie v. Redl, 47 A.D.3d 775, 776-777, 850 N.Y.S.2d 545; Paul v. Weatherwax, 146 A.D.3d 792, 794, 45 N.Y.S.3d 151, 153). Moreover, other than positive straight leg on the left, he did set forth any objective medical findings concerning plaintiff's cervical and lumbar spine when he last examined her on May 24, 2018 (see Estrella v. GEICO Ins. Co., 102 A.D.3d 730, 731, 959 N.Y.S.2d 210; Griffiths v. Munoz, 98 A.D.3d 997, 998, 950 N.Y.S.2d 787; Lively v. Fernandez, 85 A.D.3d 981, 982, 925 N.Y.S.2d 650). In this regard, he neither quantified any limitations of motion in these regions, nor did he set forth an adequate qualitative assessment of the these regions (see generally, Toure, supra.). Although positive findings on straight leg-raising can be objective evidence of serious injury, Dr. Nair failed to explain the significance of these test results and relate them to the plaintiffs' injuries (Carroll v. Jennings, 264 A.D.2d 494, 495, 694 N.Y.S.2d 458, 459; Kim v. Cohen, 208 A.D.2d 807, 618 N.Y.S.2d 386; Risbrook v. Coronamos Cab Corp., 244 A.D.2d 397, 664 N.Y.S.2d 75),
While it is true that Dr. Kolesnikov opined that the plaintiff was suffering from disc bulges and disc herniations at C4-5 and C5-6 and a disc herniation at L4-5 nerve root with possible nerve root impingement, it is settled law that evidence of a disc herniation alone does not constitute proof of a serious injury (see, Descovich v. Blieka, 279 A.D.2d 499, 718 N.Y.S.2d 870; Uber v. Heffron, 286 A.D.2d 729, 730, 730 N.Y.S.2d 174), 175).
Finally, the plaintiff failed to explain the almost two year gap in treatment from July 25, 2016 to , when she last saw Dr. Gair prior to May 24, 2018 (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278; Garcia v. Lopez, 59 A.D.3d 593, 872 N.Y.S.2d 719; Rivera v. Bushwick Ridgewood Properties, Inc., 63 A.D.3d 712, 714, 880 N.Y.S.2d 149, 151).
For all of the above reasons, it is hereby
ORDERED that defendants' motion for an order awarding them summary judgment dismissing plaintiff's complaint is GRANTED; and it is further
ORDERED that the cross-motion is DENIED as moot.
This constitutes the decision and order of the Court. Dated: September 18, 2018
/s/ _________
PETER P. SWEENEY, J.S.C.