Opinion
116526
07-31-2013
Dong Ming Huang, Claimant, v. The State of New York, Defendant.
APPEARANCES: For Claimant: LESLIE ELLIOT KRAUSE, LLP By: Joseph Medic and Stacey Paige Gedell, Esqs. For Defendant: ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Ellen Mendelson, Assistant Attorney General
APPEARANCES:
For Claimant:
LESLIE ELLIOT KRAUSE, LLP
By: Joseph Medic and Stacey Paige Gedell, Esqs.
For Defendant:
ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Ellen Mendelson, Assistant Attorney General
, J.
This claim alleges that claimant was injured on June 11, 2007 when the vehicle that he was operating was rear-ended by a vehicle owned by the State of New York and operated by its employee, nonparty Federico Merced, Jr. Claimant moves for partial summary judgment on liability on the issue of defendant's negligence. Defendant opposes the motion and cross-moves for summary judgment dismissing the claim on the grounds that claimant's injuries were not causally related to the accident, and because claimant did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Claimant opposes the cross motion. As an initial matter, defendant challenges the sufficiency of claimant's moving papers on the ground that they do not include an affidavit (see CPLR 3212 [b]). However, as claimant asserts, "[t]here is no requirement that the proof for [a summary judgment] motion be submitted in affidavit form, rather, the requirement is that the evidence be proffered in admissible form" (Brooks v Anderson, 18 Misc 3d 1109[A], *5 [Sup Ct, Bronx County 2007]; see Muniz v Bacchus, 282 AD2d 387 [1st Dept 2001]). Sworn deposition testimony will be sufficient (see Muniz at 388), as will "t]he fruits of any other of the disclosure devices" (Siegel, NY Prac § 281 at 480 [5th ed 2011]). Here, claimant's motion is upon counsel's affirmation, which, although lacking independent evidentiary value, is supported by verified bills of particulars (Medic Affirmation, Exhibit 2) and sworn depositions of claimant, Merced — the driver of the other vehicle — and Merced's passenger (id., Exhibits 4 — 7), among other items. Thus, the mere absence of an affidavit in support of claimant's motion for summary judgment is not fatal.
Defendant's Notice of Cross-Motion seeks dismissal pursuant to CPLR 3211. Defendant's counsel, however, treats and argues the cross motion as one for summary judgment (see generally Mendelson Affirmation, and ¶¶ 2, 8, 21 thereof). Claimant does not argue that defendant's cross motion is improperly noticed, and responds to the cross motion as if it were one for summary judgment pursuant to CPLR 3212 (see Gedell Reply Affirmation, ¶¶ 2, 16, 17, 18). Thus, the Court will overlook the apparent error in defendant's notice of cross motion.
The burdens on motions for summary judgment are well established. A movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp.; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, when a movant fails in the first instance to demonstrate its entitlement to summary judgment as a matter of law, its motion must be denied (see Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]; Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993], quoting Alvarez v Prospect Hosp., at 324).
In support of claimant's motion, he submits his own deposition testimony (Medic Affirmation, Exhibits 4 and 5), and that of nonparty Frederico Merced, who was the driver of the vehicle that rear-ended claimant's vehicle (id. Exhibit 6), and Rafael Alvarez, who was Merced's passenger at the time of the accident (id. Exhibit 7). It is undisputed that the accident occurred at approximately noon on June 11, 2007, in New York, New York, on East 111th Street between Park and Madison Avenues. It was a sunny day, and the road surface was dry. Claimant was driving a Lincoln Continental in the course of his employment, and was en route to pick up passengers. Merced and Alvarez were employed by the New York State Department of Correctional Services as investigators executing warrants, and they were "cruising" in search of a fugitive. Merced was operating an unmarked Ford Crown Victoria, and he testified that his vision was unobscured, that he was focused on operating the vehicle, and that he was not visually distracted by the search for the subject. Alvarez was in the front passenger seat of the Crown Victoria, visually scanning the vicinity for their subject. East 111th Street is one-way westbound, and the street was lined on both sides with parked cars, leaving one lane for traffic. Claimant testified that the accident occurred near the middle of the block, while Merced and Alvarez testified that it occurred three to four car lengths into the block from its intersection with Park Avenue.
The Department of Correctional Services has since been renamed the Department of Corrections and Community Supervision (see L 2011, ch 62, Part C).
Claimant testified that he gradually stopped his car behind a car that stopped behind yet another car that stopped suddenly to park, and defendant's car struck the rear of claimant's car a couple of seconds later. Claimant asserted that his car was pushed forward into contact with the car in front of his. Merced testified that the car two cars in front of claimant stopped short, causing the car in front of claimant's car to stop short, and that claimant's car struck the car in front of it before defendant's car struck claimant's. Merced testified that claimant's car was stopped "seconds" before he struck claimant (see Medic Affirmation, Exhibit 6, p. 66). A police accident report completed the day of the accident includes Merced's statement that claimant's vehicle stopped short, and claimant's statement that he stopped short because a vehicle in front of him stopped short (see Mendelson Affirmation, Exhibit A). It is not disputed that claimant's car was stopped at the time it was struck by defendant's car.
Claimant's car suffered damage to its rear bumper and exhaust pipe. The airbags in defendant's car deployed, and defendant's car sustained extensive damage to the front grille and headlights (see Medic Affirmation, Exhibit 9). The driver of the car that was in front of claimant's car left the scene after determining that there was no significant damage to that car. Claimant was transported to St. Luke's-Roosevelt Hospital Center with complaints of neck and lower back pain. Merced and Alvarez were also transported to the hospital for treatment of injuries that were caused by the airbags.
The claim alleges that claimant sustained enumerated injuries to the cervical and lumbar areas of his spine. At his depositions, claimant testified to an ongoing and continuing course of doctors' visits, physical therapy, acupuncture and Chinese herbal treatments from the date of his accident, along with surgery to his lumbar spine in February 2010. Claimant also testified that as a result of this accident, he received Workers' Compensation benefits for two to three weeks immediately following the accident, and that he has received Workers' Compensation benefits continuously since stopping work in April of 2008.
CLAIMANT'S MOTION FOR SUMMARY JUDGMENT ON LIABILITY
Claimant argues that he is entitled to judgment on liability because defendant's negligence is manifest in this rear-end collision. Defendant contends that claimant's car stopped suddenly in front of defendant's car, which constitutes a nonnegligent explanation for the occurrence of the accident. For the reasons that follow, claimant's motion for summary judgment on liability will be denied.
"It is well settled that a rear-end collision with a stopped vehicle creates a presumption that the operator of the moving vehicle was negligent. The injured occupant of the front vehicle is entitled to summary judgment on liability unless the driver of the second vehicle provides a non-negligent explanation for the collision"(Agramonte v City of New York, 288 AD2d 75, 76 [1st Dept 2001]). On the undisputed facts that claimant's car was stopped and rear-ended by defendant's car, claimant has met his prima facie burden of establishing defendant's negligence, and claimant is "entitled to summary judgment unless the driver of the following car presents a nonnegligent explanation for the accident . . . or a nonnegligent reason for [his or] her failure to maintain a safe distance between [his or] her car and the lead car" (Mullen v Rigor, 8 AD3d 104, 104 [1st Dept 2004]).
Defendant contends that the sudden stop of claimant's car is a nonnegligent explanation for the happening of the accident that is sufficient to defeat claimant's motion for summary judgment, and it relies on two cases from the Appellate Division, Second Department (see Napolitano v Galletta, 85 AD3d 881 [2d Dept 2011]; Abbott v Picture Cars E., Inc., 78 AD3d 869 [2d Dept 2010]). However, this claim accrued within the First Department of the Appellate Division, which holds that "an assertion that the lead vehicle stopped suddenly' is generally insufficient to rebut the presumption of negligence on the part of the offending vehicle" (Francisco v Schoepfer, 30 AD3d 275, 276 [1st Dept 2006] [internal citations omitted]; see also Moustapha v Riteway Intl. Removal, 283 AD2d 175 [1st Dept 2001]). To avoid summary judgment, a driver who rear-ends another car must demonstrate his or her nonnegligence by proof of something other than a sudden stop by the lead car (see Francisco v Schoepfer, 30 AD3d 275, 276 [1st Dept 2006]; Malone v Morillo 6 AD3d 324 [1st Dept 2004]; Agramonte v City of New York). This derives from the well-established rule that
Notably, the Second Department has also applied this rule (see Hearn v Manzolillo, 103 AD3d 689 [2d Dept 2013]; Jumandeo v Franks, 56 AD3d 614 [2d Dept 2008]; Hakakian v McCabe, 38 AD3d 493 [2d Dept 2007]; David v New York City Bd. of Educ., 19 AD3d 639 [2d Dept 2005] [citing the First Department decision in Malone v Marillo]).
"[t]he failure of the motorist to the rear to proceed at a sufficient distance behind the forward motorist and to travel at a sufficiently low rate of speed so that a stop can be made without colliding with the forward motorist, if the latter suddenly stops or changes his or her course, constitutes, in general, negligence"(8B NY Jur 2d Automobiles § 1066; see Malone at 325). Further, the mere fact that claimant's car may have stopped suddenly "is not enough to rebut the presumption of nonnegligence on the part of the lead vehicle" (Mullen at 104). Nevertheless, and although claimant has demonstrated prima facie defendant's negligence and defendant has not come forward with a nonnegligent explanation for the collision, claimant's motion for summary judgment on liability cannot be granted because claimant's submission raises an issue of fact regarding his own comparative negligence.
The Appellate Division, First Department has recently stated that "even where the record establishes the defendant's negligence, the plaintiff is not entitled to summary judgment as to liability where a question of comparative fault must be resolved at trial" (Maniscalco v New York City Transit Auhtority, 95 AD3d 510, 511 [1st Dept 2012]; see Thoma v Ronai, 82 NY2d 736 [1993]; see also Calcano v Rodriguez, 91 AD3d 468 [1st Dept 2012]).
"The point of Thoma and its progeny is that, where there is evidence that both the defendant and the [claimant] were negligent and that each one's negligence may have been a substantial factor in causing the injury, whether one party's negligence was a substantial factor in causing the injury should not be determined in isolation. Rather, each party's liability should be considered and determined simultaneously with the material, and overlapping, issue of whether the [other party] was also culpable' [citation omitted]. Stated otherwise, in determining whether one party's conduct was a legal cause of the injury, the possible causal role of the other party's conduct should also be considered" (Maniscalco at 512, quoting Tann v Herlands, 224 AD2d 230, 230-231 [1st Dept 1996]). The issue of claimant's comparative negligence was asserted in defendant's answer (see Verified Answer, First Affirmative Defense), and although the argument is not well-developed by defendant in opposition to claimant's motion, defendant asserts that "claimant's freedom from negligence has not been established as a matter of law, since there is a genuine issue of fact, as to whether the lead vehicle caused or contributed to the accident, and whether or not claimant was maintaining a safe distance from the car ahead of him" (Mendelson Affirmation, at ¶ 7) [emphasis added]).
As noted above, claimant testified that he came to a gradual stop behind the car in front of him that had stopped suddenly, which demonstrates prima facie claimant's lack of negligence. However, according to Merced's testimony, claimant's car struck the car in front of it when that car stopped suddenly and before Merced struck claimant, suggesting that claimant was negligent in the same manner as was Merced (see Agramonte v City of New York). Thus, claimant's motion reveals disputed issues of fact as to the order of claimant's collisions, and whether claimant was operating his car negligently, thus raising triable issues of fact as to claimant's comparative negligence. Accordingly, claimant's motion for summary judgment on liability must be denied (see Maniscalco; Calcano).
DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT
Defendant submits that claimant's injuries are not causally related to the accident with defendant's vehicle on June 11, 2007, and further argues that claimant has not sustained a serious injury that satisfies any of the categories set forth in Insurance Law § 5102 (d). In support of its motion, defendant implicitly incorporates by reference claimant's deposition testimony (see Mendelson Affirmation, ¶ 10), and the cross motion is further supported by the emergency room medical records from the date of claimant's accident (id. Exhibit B), and by an affirmed Independent Medical Examination (IME) report by Dr. John M. Olsewski, the orthopedic surgeon who examined claimant on July 5, 2012 (id. Exhibit C). Claimant opposes the motion, and submits his medical records, the affirmations of two treating physicians who opine that he sustained serious injuries within these categories that were caused by the accident on June 11, 2007, and the affirmations of several radiologists. Claimant opposes defendant's cross motion, which will be granted in part.
The usual burdens of proof on summary judgment motions apply, as discussed above. In particular, on this cross motion for summary judgment dismissing the claim for claimant's failure to sustain a serious injury, "the initial burden is on the defendant to present competent evidence that the [claimant] has no cause of action" (Chatah v Iglesias, 5 AD3d 160, 160 [1st Dept 2004]).
Causation
Defendant argues that claimant's injuries were not caused by the accident on June 11, 2007, and that his pain was "just as likely" caused by chronic degenerative conditions, and by a subsequent automobile accident (see Mendelson Affirmation, ¶¶ 11, 17-19). The argument regarding a pre-existing condition is supported by the IME report of Dr. Olsewski, in which he notes that although claimant has denied suffering from neck and lower back pain prior to the June 11, 2007 accident, the medical reports from the emergency room "of the claimant's cervical spine done on [June 11, 2007] show changes that are more likely chronic, than acute" (Mendelson Affirmation, Exhibit C, p. 6). The IME report also states that claimant's medical records include a radiograph report of a study of claimant's lower back on January 27, 2007, and Dr. Olsewski opined that such a study would not have been undertaken if the physician who ordered them had not been "prompted to by either claimant's history or findings on [a] physical exam" (id. at p. 6). Dr. Olsewski further opined that the changes noted in the radiographs from months prior to the accident showed "changes in the lumbosacral spine [that] are chronic and would have taken years to develop" and that "at a maximum, there could be a relationship of a portion of the claimant's symptoms only, perhaps an exascerbation [sic], to the motor vehicle accident" (id.). Dr. Olsewski further stated that the progression of findings on MRI and claimant's lack of response to non-surgical treatments of his lumbar spine over a period of two and one-half years after the accident "are just as likely attributable to the natural history of his disease process as they are to any traumatic event" (id. [emphasis added]). Notably, however, Dr. Olsewski does not state that claimant's injuries were not caused by the accident, nor does he attribute any causation to the subsequent accident in 2008.
At his initial deposition, claimant testified that his car was struck by another in December of 2008 (see Medic Affirmation, Exhibit 4, at p. 23), and defendant has cited this testimony to assail claimant's credibility and/or accuracy of his testimony (see id. ¶ 14). However, at claimant's second deposition — which was occasioned by defendant's objections to the quality of the interpreter who was translating between English and Chinese at the first deposition — claimant clarified that the accident occurred in February of 2008, prior to his cessation of work in April 2008 (see Medic Affirmation, Exhibit 5, pp. 135-136).
Defendant argues that where there are several possible causes of an injury, some of which are not attributable to defendant, claimant cannot prove his claim (see Mendelson Affirmation, ¶¶ 20, 24). Defendant relies, however, on appellate decisions reviewing whether there was sufficient evidence of causation presented at trial (see Bernstein v City of New York, 69 NY2d 1020 [1987]; Ingersoll v Liberty Bank of Buffalo, 278 NY 1 [1938]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]). Where, as here, the matter is before the Court on a summary judgment motion, the issue is whether defendant has made a prima facie showing of lack of causation, thereby shifting the burden to claimant to raise a triable issue of fact (see e.g. Caines v Diakite, 105 AD3d 404 [1st Dept 2013]; Amaro v American Medical Response of New York, Inc., 99 AD3d 563, 563-564 [1st Dept 2012]; Grant v United Pavers Co., Inc., 91 AD3d 499, 500 [1st Dept 2012]).
Here, defendant has not made a prima facie showing of lack of causation. Dr. Olsewski concludes only that claimant's injuries are "just as likely" due to pre-existing conditions as to the accident on June 11, 2007, or that the accident exacerbated pre-existing conditions. He does not, however, rule out that claimant's injuries were caused by the subject accident (cf. Spencer v Golden Eagle, Inc., 82 AD3d 589, 590 [1st Dept 2011] ["defendant may meet his burden upon the submission of expert affidavits indicating that plaintiff's injury was caused by a pre-existing condition and not the accident" (emphasis supplied)]; see also Arroyo v Morris, 85 AD3d 679, 680 [1st Dept 2011] [radiologist who reviewed MRIs and x-rays found "no evidence of recent traumatic or causally related injury"] [emphasis supplied]). As noted above, the IME report merely makes note of the subsequent accident in 2008, but attributes no causation to it. In sum, because Dr. Olsewski does not state that claimant's injuries were not caused by the June 11, 2007 accident, and because defendant has not submitted any other competent proof that claimant's injuries were not caused by the accident, defendant has not made a prima facie case that the accident with defendant did not cause claimant's injuries.
Even if defendant has met its burden on its cross motion, however, claimant has raised a triable issue of fact as to causation of his cervical and lumbar spine injuries. As defendant notes, claimant denied any prior injury to the same parts of his body (see Mendelson Affirmation, ¶ 16; Medic Affirmation, Exhibit 4, p. 67; Exhibit 5, p. 138), and he denied sustaining any injury in the subsequent accident (id. pp. 138-139). In opposition to the cross motion, claimant has submitted the affirmations of two treating physicians, one of whom reviewed MRI films and reports from 2007 (see Gedell Reply Affirmation, Exhibit 5 [Chang Affirmation]), and the other of whom reviewed the reports from claimant's MRIs in 2007, 2008, and January and December of 2009 (see id. Exhibit 9 [Lubliner Affirmation]), as well as the affirmations of three radiologists who reviewed claimant's MRI films from 2007, 2008 and 2009 (id. Exhibits 10 and 11 [Ham Affirmations]; Exhibit 12 [Lubitz Affirmation]; Exhibit 13 [Hu Affirmation]). All of these physicians affirm that claimant's cervical and lumbar spine injuries were traumatically caused by the subject accident and not degenerative conditions. Further, claimant has demonstrated that he received Workers' Compensation benefits due to injuries that were sustained in the accident of June 11, 2007 (see id. Exhibit 15; Medic Affirmation, Exhibit 4, pp. 61-62; Exhibit 5, pp. 156; 157). And although Dr. Olsewski makes note of the lumbar spine radiographs report from January 2007, he offers no comment whether claimant's lumbar spine had disc bulges or herniation prior to the June 2007 accident, such as appear in the MRIs of claimant's lumbar spine taken on August 2, 2007, weeks after the accident (see Mendelson Affirmation, Exhibit C, at 4). Thus, claimant has raised an issue of fact as to whether his lumbar spine injury was caused by the accident.
With respect to claimant's cervical spine injuries, there is no indication that claimant may have had prior complaints or treatment for his neck. As with the lumbar spine injury, to the extent that Dr. Olsewski opines that claimant's neck pain is caused by chronic degenerative conditions, he acknowledges that the pain may be caused at least in part, or as likely as not, by the accident, and he does not state that the cervical injuries were not caused by the accident. Claimant's physicians' affirmations, referred to in the preceding paragraph, all state that claimant's injuries were traumatically induced by the accident and are not the result of degenerative changes. Thus, and to the extent that defendant has made a prima facie showing of lack of causation of claimant's cervical spine injuries, claimant has raised triable issues of fact (see Grant v United Pavers Co., Inc.). Accordingly, that part of defendant's cross motion seeking summary judgment dismissing the claim for lack of causation will be denied.
Serious Injury
The categories of serious injury as set forth in Insurance Law § 5102 (d) that are at issue on defendant's cross motion are (1) permanent consequential limitation of use of a body organ or member, (2) significant limitation of use of a body function or system, and (3) the 90/180-day category (see Mendelson Affirmation, ¶ 9).
90/180 days
The 90/180-day category requires that claimant have sustained a "medically determined injury or impairment of a non-permanent nature which prevents [him] from performing substantially all of the material acts which constitute [his] 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" (Insurance Law § 5102 [d]). The 180-day period after claimant's accident on June 11, 2007 concluded on December 8, 2007.
Claimant's relevant deposition testimony was that prior to his accident, he generally worked a 12-hour work day as a driver in two shifts, from 8:00 a.m. to 4:00 p.m., and then from 9:00 p.m. to 12:00 a.m. He did not work at all for approximately four weeks after the accident, until July 9, 2007, and that from that day forward, he worked only the eight hour day shift, thus reducing his work day by one-third. He testified that his severe pain caused him to stop working completely in April 2008. He testified that he received payments from Workers' Compensation for the two or three weeks immediately after the accident, and that after he stopped working in April 2008, his Workers' Compensation benefits resumed and were continuing at the time of his deposition in October 2011, more than four years after the accident. He further testified that prior to his accident, he enjoyed fishing, exercising, football, ping pong, badminton, tennis and basketball, and that after the accident he could no longer engage in those activities.
Assuming for the moment that claimant's injuries are "medically determined" and "of a non-permanent nature" as required by Insurance Law § 5102 (d), his deposition testimony is manifestly insufficient to sustain his claim under the 90/180-day category. In order to establish a serious injury under the 90/180-day category, claimant must demonstrate that the injury prevented him from performing "substantially all" of his daily and customary activities, such that he was "curtailed from performing his usual activities to a great extent rather than some slight curtailment" (Licari v Elliot, 57 NY2d 230, 236 [1982]). Although claimant was out of work for several weeks and then returned to work for fewer hours than he had previously worked, he nevertheless returned to work on July 9, 2007, and worked eight hours a day for the remainder of the 180-day period. This "demonstrate[s] that his injuries did not prevent him from performing substantially all the material acts constituting his usual and customary daily activities during at least 90 out of the 180 days following the accident" (Islam v Apjeet Singh Makkar, 95 AD3d 1277, 1278 [2d Dept 2012]; see Cruz v Rivera, 94 AD3d 576 [1st Dept 2012]; Williams v Perez, 92 AD3d 528, 529 [1st Dept 2012]; see also Szabo v XYZ, Two Way Taxi Radio Taxi Assn., 267 AD2d 134 [1st Dept 1999] [two week absence from work followed by a limited work schedule of half days did not meet the "substantially all" requirement]). Further, other than his lack of participation in certain recreational activities, claimant offered no testimony regarding any customary daily activities his injuries prevented him from performing during the statutory period (see Grant v United Pavers Co., Inc., 91 AD3d 499, 501 [1st Dept 2012]). Thus, defendant has established prima facie on its cross motion that claimant did not sustain a serious injury within the 90/180-day category. Although claimant's submission in opposition to the cross motion contains an abundance of medical records and doctors' affirmations, it contains no additional evidence relevant to claimant's customary daily activities or his inability to perform them during the 180 days after the accident. Accordingly, that part of defendant's cross motion seeking dismissal of the claim under the 90/180-day category will be granted.
Permanent Consequential and Significant Limitations of Use
With respect to that part of defendant's cross motion that is addressed to the two "limitation of use" categories (see Perl v Meher, 18 NY3d 208, 219 [2011]), defendant argues that "[c]laimant's medical records document that his injuries are not serious . . . and as such, he cannot prove" that he sustained a serious injury within the meaning of Insurance Law § 5102 (d) (Mendelson Affirmation, ¶ 9). Claimant opposes the cross motion, and submits his medical records and the affirmations of several treating physicians to establish that he sustained a serious injury within the limitation of use categories. For the reasons that follow, defendant's cross motion for summary judgment dismissing the claim will be denied with respect to the "limitation of use" categories.
Although defendant argues that claimant's deposition testimony and medical records are sufficient to establish defendant's entitlement to judgment as a matter of law, claimant's medical records were not submitted with claimant's motion for partial summary judgment because they are not relevant to the issue of defendant's negligence. Inasmuch as defendant's cross motion is not supported by claimant's medical records (see Mendelson Affirmation, ¶ 10), the only competent evidence before the Court on defendant's cross motion is the emergency room records from the date of the accident and Dr. Olsewski's affirmed IME report. For the reasons that follow, this evidence is insufficient to sustain defendant's initial burden to demonstrate the absence of serious injury.
Dr. Olsewski's IME report recites the medical records of claimant that he reviewed and provides a synopsis of them, describes his examination of claimant, gives his impression of claimant's condition, and provides a summary of all of the above. The description of claimant's physical examination recites Dr. Olsewski's observations of claimant walking, and of claimant's responses to manipulative maneuvers and clinical tests, including his complaints of pain (see Mendelson Affirmation, Exhibit C, p. 2). The IME report states that "[t]he claimant on physical exam shows evidence of mechanical axial spine pain in both the cervical spine and lumbar spine" (id. p. 5). At least one of Dr. Olsewki's assessments yielded a positive finding — "i.e., indicated some departure from the norm" (Perl 18 NY3d at 216). Ranges of motion are described in degrees, but the IME report does not state that claimant's lower back and neck have full ranges of motion, nor does it indicate the extent to which such measurements conform with, or depart from, normal ranges of motion. Where, as here, "the orthopedist failed to compare those [range of motion] findings to the normal range of motion, thereby leaving the court of speculate as to the meaning of those figures" (Manceri v Bowe, 19 AD3d 462, 462 [2d Dept 2005]), defendant's prima facie burden is not met (see also Hypolite v International Logistics Mgt., Inc., 43 AD3d 461 [2d Dept 2007]; Aronov v Leybovich, 3 AD3d 511 [2d Dept 2004]). Defendant's IME report does not express that there is a lack of a serious injury, nor are claimant's ranges of motion "sufficiently quantified or qualified to establish the absence of a significant limitation of motion" (Belarge v Kardas, 69 AD3d 779, 779 [2d Dept 2010]; compare Cruz v Rivera [defendant's doctor found full range of motion in the relevant parts of claimant's body]; Williams v Perez [same]). Thus, defendant has failed to meet its prima facie burden of showing that claimant did not sustain an injury that satisfies the statutory "limitation of use" categories.
Even if defendant has made a prima facie showing that claimant has not suffered a statutory limitation of use, claimant's submission in opposition to the cross motion raises triable issues of fact sufficient to defeat defendant's cross motion. In particular, the affirmation of Dr. Zhang, who treated claimant from June 19, 2007 through February 6, 2010 and who reviewed the reports of claimant's MRIs, states that claimant sustained injuries causally related to the June 11, 2007 accident, and claimant's course of treatment is described. Significant limitations of ranges of motion in his cervical and lumbar spine were quantified during examinations in July, August, September, October, and December of 2009 (see Gedell Reply Affirmation, Exhibit 4, ¶¶ 12, 14, 16, 19), and on February 6, 2010 (id. ¶ 32). In summary, Dr. Zhang opines that the June 11, 2007 caused claimant's injuries, and that his injuries satisfy the statutory "limitation of use" categories (id. ¶ 37). Similar observations and opinions are set forth in the affirmation of another of claimant's treating physicians, Dr. Chang, based upon examinations in August and September of 2007 (see Gedell Reply Affirmation, Exhibit 5, ¶¶ 3, 7, 14). These affirmations satisfy claimant's burden of presenting objective proof that raises triable issues of fact as to whether he suffered significant limitation of use or permanent consequential use of his neck and lower back as a result of the June 11, 2007 accident (see Toure v Avis Rent A Car, 98 NY2d 345, 350 [2002]; Pietropinto v Benjamin, 104 AD3d 617 [1st Dept 2013]; Rosario v Universal Truck & Trailer Serv., 7 AD3d 306, 308-309 [1st Dept 2004]).
Accordingly, it is
ORDERED, that claimant's motion number M-82193 for partial summary judgment on the issue of liability (fault) is DENIED, and it is further
ORDERED, that defendant's cross motion number CM-82667 for summary judgment dismissing the claim is GRANTED IN PART, and that part of the claim asserting a cause of action under the 90/180-day category of Insurance Law § 5102 (d) is DISMISSED, and it is further
ORDERED, that defendant's cross motion number CM-82667 is, in all other respects, DENIED, and it is further
ORDERED, that the trial of liability (fault) shall be scheduled as soon as practicable, and it is further
ORDERED, that the issue of serious injury will be tried thereafter during the damages phase of the trial, if warranted.
Albany, New York
July 31, 2013
W. Brooks DeBow
Judge of the Court of Claims
Papers considered:
(1) Claim Number 116526, filed March 9, 2009;
(2) Verified Answer, filed April 10, 2009;
(3) Notice of Motion for Summary Judgment on Liability, dated September 13, 2012;
(4) Affirmation in Support of Joseph Medic, Esq., dated September 13, 2012, with Exhibits 1-9;
(5) Notice of Cross-Motion, dated November 28, 2012;
(6) Affirmation in Opposition to Motion for Summary Judgment on Liability and in Support of Cross-Motion of Ellen Mendelson, AAG, dated November 28, 2012, with Exhibits A-C;
(7) Affirmation in Reply and in Further Support of Motion for Summary Judgment on Liability
and in Opposition to Defendants' Cross-Motion on Threshold of Stacey Paige Gedell, Esq., sworn March 28, 2013, with Exhibits 1-15;
(8) Reply Affirmation in Support of Ellen Mendelson, AAG, dated May 9, 2013, with Exhibits D-E.