Opinion
Index 17-600098
08-05-2019
ANETA EDWARDS-MOHAMMED and ADRIAN MOHAMMED, Plaintiffs, v. DONELLA BROWN, Defendant. Mot. Seq. No. 001 - MG; CASEDISP
GRUENBERG KELLY DELLA Attorney for Plaintiffs DODGE & MONROY, PC. Attorney for Defendant
Unpublished Opinion
MOTION DATE 10-23-18
ADJ. DATE 1-15-19
GRUENBERG KELLY DELLA Attorney for Plaintiffs
DODGE & MONROY, PC. Attorney for Defendant
Hon. MARTHA L. LUFT, Justice
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers dated September 17. 2018: Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers dated December 11.208: Replying Affidavits and supporting papers dated January 7, 2019Other _; (and after-bearing counsel in support and opposed to the motion) it is, ORDERED that the motion by defendant for an order granting summary judgment dismissing the complaint on the ground that plaintiff Edwards-Mohammed did not sustain a "serious injury”1 as defined in Insurance Law § 5102 (d) is granted.
This is an action to recover damages for injuries sustained by plaintiff Aneta Edwards-Mohammed ("plaintiff) when her vehicle collided with a vehicle owned and operated by defendant. The accident allegedly occurred on August 28, 2015, at approximately 10:00 a.m.: on Convent Road in Syosset, New York. By her bill of particulars, plaintiff alleges that, as a result of the subject accident, she sustained serious injuries and conditions, including anterior inferior labral tear in the left shoulder and a bulging disc at level C3-C4. Plaintiffs husband, Adrian Mohammed, seeks damages for loss of services. Plaintiff also claims that she sustained economic loss in excess of basic economic loss as defined in Insurance Law § 5102 (d).
Defendant moves for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law §5102 (d).
Insurance Law § 5102 (d) defines "serious injury''' as "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 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."
In order to recover under the "permanent loss of use”' category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 N.Y.2d 295, 727 N.Y.S.2d 378 [2001]), To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed, or there must be a sufficient description of the "qualitative nature" of plaintiff s limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose, and use of the body part (see Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott. 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Cebron v Tuncoglu, 109 A.D.3d 631, 970 N.Y.S.2d 826 [2d Dept 2013]).
On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) (see Caddy v Eyler, 79 N.Y.2d 955. 582 N.Y.S.2d 990 [1992]; Akhtar v Santos, 57 A.D.3d 593, 869 N.Y.S.2d 220 [2d Dept 2008]). The defendant may satisfy this burden by submitting the plaintiffs deposition testimony and the affirmed medical report of the defendant's own examining physician (see Moore v Edison, 25 A.D.3d 672, 811 N.Y.S.2d 724 [2d Dept 2006]; Farozes v Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706 [2d Dept 2005]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra; Boone v New York City Tr. Autfu, 263 A.D.2d 463, 692 N.Y.S.2d 731 [2d Dept 1999]).
Here, defendant made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) through the affirmed report of his examining physician (see Bailey v Islam, 99 A.D.3d 633, 953 N.Y.S.2d 39 [1st Dept 2012]; Sierra v Gonzalez First Limo, 71 A.D.3d 864, 895 N.Y.S.2d 863 [2d Dept 2010]; Staff v Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 [2d Dept 2009]). On March 30, 2018, approximately two years and seven months after the subject accident, defendant's examining orthopedist, Dr. Matthew Skolnick, examined plaintiff and performed certain orthopedic and neurological tests, including the Spurling's test, the O'Brien's test, the Tinel's sign, and the Phalen's test. Dr. Skolnick found that all the test results were negative or normal, and that there was no spasm or tenderness in plaintiffs cervical and lumbar regions. Dr. Skolnick found that there was no tenderness in plaintiffs shoulders. Dr. Skolnick also performed range of motion testing on plaintiffs cervical and lumbar regions, shoulders, and wrists, using a goniometer to measure her joint movement, and found that plaintiff exhibited normal joint function. Dr. Skolnick opined that plaintiff had no orthopedic disability at the time of the examination (see Willis v New York City Tr. Auth., 14 A.D.3d 696, 789 N.Y.S.2d 223 [2d Dept 2005]).
Further, at her deposition, plaintiff testified that following the accident, she was not confined to her bed and home, and that she missed "a few days" from work. She testified that there is no activity that she is unable to perform because of the accident, except for lifting or moving heavy objects. Plaintiffs deposition testimony established that her injuries did not prevent her from performing "substantially all" of the material acts constituting her customary daily activities during at least 90 out of the first 180 days following the accident (see Burns v McCabe. 17 A.D.3d 1111, 794 N.Y.S.2d 267 [4th Dept 2005]; Curry v Velez, 243 A.D.2d 442, 663 N.Y.S.2d 63 [2d Dept 1997]).
Thus, defendant met his initial burden of establishing that plaintiff did not sustain a permanent consequential limitation of use of a body organ or member or significant limitation of use of a body function or system, and that she was not prevented from performing substantially all of her usual and customary daily activities for 90 of the first 180 days following the accident within the meaning of Insurance Law § 5102 (d) (see Gonzalez v Green, 24 A.D.3d 939, 805 N.Y.S.2d 450 [3d Dept 2005]). Moreover, there is no evidence that plaintiff incurred economic loss in excess of basic economic loss as defined in Insurance Law § 5102 (a) (see Moran v Palmer, 234 A.D.2d 526, 65 1 N.Y.S.2d 195 [2d Dept 1996]).
The burden, therefore, shifted to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, supra). A plaintiff claiming injury within the "limitation of use" categories must substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitation of movement caused by the injury and its duration (see Ferraro v Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408 [2d Dept 2008]; Mejia v DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 772 [2d Dept 2006]; Laruffa v Yui Ming Lau, 32 A.D.3d 996, 821 N.Y.S.2d 642 [2d Dept 2006]; Cerisier v Thibiu, 29 A.D.3d 507, 815 N.Y.S.2d 140 [2d Dept 2006]). To prove significant physical limitation, a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based on a recent examination or a sufficient description of the "qualitative nature" of plaintiff s limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose, and use of the body part (see Perl v Meher, supra: Toure v Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, supra; Cebron v Tuncoglu, supra). Furthermore, a plaintiff claiming serious injury who ceases treatment after the accident must offer a reasonable explanation for having done so (Pommells v Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380 [2005]; see Vasquezv John Doe #7, 73 A.D.3d 1033, 905 N.Y.S.2d 188 [2d Dept 2010]; Rivera v Bushwick Ridgewood Props., Inc., 63, A.D.3d 712, 880 N.Y.S.2d 149 [2d Dept 2009]).
Plaintiff, in opposition, argues that the report of defendant's examining physician is insufficient to meet her burden on the motion. She also argues that the affirmation of her treating chiropractor, Dr. Thomas Dow, and the unaffirmed magnetic resonance imaging (MRI) examination reports of her radiologists, Dr. David Payne and Dr. Ron Mark, raise a triable issue as to whether she suffered injury within the "significant limitation of use" category of Insurance Law § 5102 (d). Plaintiff submits, inter alia, the uncertified medical records of Brookhaven Memorial Hospital and the uncertified medical records of Island Musculoskeletal Care. The uncertified medical records are insufficient to raise a triable issue of fact, as they are not in admissible form (see Grasso v Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178 [1991]; Scheker v Brown, 91 A.D.3d 751, 936 N.Y.S.2d 283 [2d Dept 2012]; Karpinos v Cora, 89 A.D.3d 994, 933 N.Y.S.2d 383 [2d Dept 2011 ]).
Dr. Dow's report set forth plaintiffs complaints and the findings, including significant limitations in her cervical and left shoulder joint function measured during range of motion testing performed at his initial consultation on November 15, 2018, more than three years after the subject accident. However, Dr. Dow failed to provide any medical evidence concerning plaintiffs condition contemporaneous to the accident (see Sukalic v Ozone, 136 A.D.3d 1018, 269 N.Y.S.3d 188 [2d Dept 2016]; Griffiths v Munoz, 98 A.D.3d 997, 998, 950 N.Y.S.2d 787 [2d Dept 2012]). A contemporaneous doctor's report is important to proof of causation (see Perl v Meher, supra), and the absence of a contemporaneous medical report invites speculation as to causation (see Griffiths v Munoz, supra). Dr. Dow's report, therefore, is insufficient to raise a triable issue of fact.
Further, even assuming that plaintiff was entitled to rely on the unaffirmed MRI reports prepared by Dr. Payne and Dr. Mark, such reports are insufficient to warrant denial of defendant's motion for summary judgment. Said MRI reports revealed a labral tear in plaintiffs left shoulder and a bulging disc at level C3-C4. The mere existence of a herniated or bulging disc or tears in a shoulder, in the absence of objective evidence as to the extent of the alleged physical limitations resulting from the injuries and their duration, is not evidence of serious injury (see Pierson v Edwards, 77 A.D.3d 642, 909 N.Y.S.2d 726 [2d Dept 2010]; Byrd v J.R.R. Limo, 61 A.D.3d 801, 878 N.Y.S.2d 95 [2d Dept 2009]).
Moreover, plaintiff failed to offer competent evidence that she sustained nonpermanent injuries that left her unable to perform substantially all of her normal daily activities for at least 90 of the 180 days immediately following the accident (see John v Linden. 124 A.D.3d 598, 1 N.Y.S.3d 274 [2d Dept 2015]; II Chung Lim v Chrabaszcz, 95 A.D.3d 950. 944 N.Y.S.2d 236 [2d Dept 2012]; Rivera v Bushwick Ridgewood Props., Inc., supra). Furthermore, plaintiff failed to establish economic loss in excess of basic economic loss (see Diaz v Lopresti, 57 A.D.3d 832, 870 N.Y.S.2d 408 [2d Dept 2008]).
Thus, defendant's motion for summary judgment based on plaintiffs failure to meet the serious injury threshold is granted, and the complaint is dismissed.