Opinion
Index No. 24468/2018E
11-25-2019
MOUHAMADOU FALL, Plaintiff, v. ANDREA T. BUNCE, HECTOR CASTILLO AQUINO and CHRISTIAN JOHAN CASTILLO FRANCO, Defendants.
Unpublished Opinion
HON. JOHN R. HIGGITT, A.J.S.C.
The following papers in the NYSCEF System were read on this motion for SUMMARY JUDGMENT (DEFENDANT) , noticed on September 12, 2019 and duly submitted as No. 29 on the Motion Calendar of October 21, 2019
Doc. Nos.
Notice of Motion - Exhibits and Affidavits Annexed
54-62
Notice of Cross Motion - Exhibits and Affidavits Annexed
Answering Affidavit and Exhibits, Memorandum of Law
72-83
Reply Affidavit
96
Upon the foregoing papers, defendants' motion for summary judgment on the ground that plaintiff did not sustain "serious injuries," as defined in Insurance Law § 5102(d), is granted in part, in accordance with the annexed decision and order.
DECISION AND ORDER
JOHN R. HIGGITT, JUDGE
Upon the August 14, 2019 notice of motion of defendants Hector Castillo Aquino and Christian Johan Castillo Franco (the "Franco defendants") and the affirmation and exhibits submitted in support thereof; plaintiffs September 9, 2019 affirmation in opposition and the exhibits submitted therewith; and due deliberation; defendants' motion for summary judgment on the ground that plaintiff did not sustain "serious injuries," as defined in Insurance Law § 5102(d), in the subject March 15, 2018 motor vehicle accident is granted in part.
As a result of the subject accident, plaintiff alleges injuries to his head, knees, left shoulder and the cervical and lumbar aspects of his spine. Plaintiff alleges "serious injury" under the categories of significant limitation and permanent consequential limitation.
The Franco defendants submitted the affirmed expert reports of an orthopedic surgeon, Joseph C. Elfenbein, M.D., and a radiologist, Mark J. Decker, M.D., and the transcript of plaintiffs January 22, 2019 deposition testimony.
The Franco defendants demonstrate, prima facie, that plaintiff did not sustain significant or permanent consequential limitations to his left shoulder, cervical spine or lumbar spine as a result of the accident (see Thompson v Bronx Merchant Funding Servs., LLC, 166 A.D.3d 542, 543 [1st Dept 2018]; Fernandez v Hernandez, 151 A.D.3d 581, 581 [1st Dept 2017]). Dr. Elfenbein examined plaintiff on February 18, 2019, finding normal ranges of motion in the cervical spine and lumbar spine and negative provocative testing. Dr. Elfenbein's examination of plaintiffs left shoulder revealed range-of-motion restrictions in forward flexion and abduction, both to 170 degrees of a normal 180 degrees. Dr. Elfenbein diagnosed plaintiff with cervical spine, lumbar spine and left shoulder sprains that he deemed resolved. The 10-degree deficits noted by Dr. Elfenbein are not "significant" within the meaning of the statute (see Gaddy v Eyler, 79 N.Y.2d 955 [1992]; Licari v Elliott, 57 N.Y.2d 230 [1982]; Stevens v Bolton, 135 A.D.3d 647, 648 [1st Dept 2016]; Style v Joseph, 32 A.D.3d 212, 214, n [1st Dept 2006]) and do not defeat the Franco defendants' prima facie showing (see Karounos v Doulalas, 153 A.D.3d 1166, 1167 [1st Dept 2017]; Sone v Qamar, 68 A.D.3d 566 [1st Dept 2009]).
Moreover, the Franco defendants demonstrated, prima facie, that plaintiffs left shoulder and lumbar spine injuries were not causally related to the subject accident by submitting evidence that such injuries were due to preexisting degenerative conditions (see Kone v Rodriguez, 107 A.D.3d 537, 538 [1st Dept 2013]; Linton v Nawaz, 62 A.D.3d 434, 439 [1st Dept 2009], aff'd 14 N.Y.3d 821 [2010]; see also Sosa-Sanchez v Reyes, 162 A.D.3d 414, 414 [1st Dept 2018]; Hessing v Carroll, 161 A.D.3d 462, 462 [1st Dept 2018]; Alvarez v NYLL Mgt. Ltd, 120 A.D.3d 1043, 1044 [1st Dept 2014], aff'd 24 N.Y.3d 1191 [2015]). Dr. Decker reviewed films from the March 24, 2018 MRIs of plaintiffs lumbar spine and left shoulder. Dr. Decker opined that plaintiffs lumbar spine MRI revealed facet hypertrophy at the L3-L4 and L4-L5 levels, which he deemed longstanding and not causally related to the subject accident. In the left shoulder, Dr. Decker found capsular thickening, more prominent in the anterior, and degeneration and tears of the superior labrum and anterior inferior labrum. Dr. Decker concluded that these findings were longstanding and not causally related to the subject accident.
The Franco defendants also assert that there is an unexplained gap in plaintiffs treatment that severs any causal connection between the accident and plaintiffs injuries (see Pommells v Perez, 4 N.Y.3d 566, 574 [2005] ["a plaintiff who terminates therapeutic measures following the accident, while claiming 'serious injury,' must offer some reasonable explanation for having done so"]). The Franco defendants note plaintiffs testimony that he stopped all treatment related to the claimed injuries approximately two months following the accident, and that he feels ''better." However, plaintiff also testified that he scheduled further medical appointments, but he could not return for treatment because insurance stopped paying and he did not have insurance. Plaintiff s testimony that he ceased treatment when coverage was terminated constitutes "the bare minimum required to raise an issue regarding 'some reasonable explanation' for the cessation of physical therapy" (Windham v NY City Tr. Auth., 115 A.D.3d 597, 598-599 [1st Dept 2014], quoting Ramkumar v Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 907 [2013]). Moreover, plaintiff testified that on his January 2019 trip to his native country of Senegal he pursued "traditional medicine" treatments for his back on three occasions.
The Franco defendants failed to establish, prima facie, that plaintiff did not sustain a "serious injury" of his head or knees under the categories of "permanent consequential" and "significant" limitations. Plaintiff s bill of particulars alleges that the accident caused plaintiffs head and knees to hit the driver's seat and that plaintiff briefly lost consciousness. Plaintiff claimed that he sustained a cerebral concussion and post-concussion syndrome as a result of the subject accident causing blurry vision, dizziness and worsening of his preexisting stuttering. Plaintiff also testified that the injury to his head caused memory loss.
Here, the Franco defendants' expert, Dr. Elfenbein, reviewed plaintiffs verified bill of particulars and examined plaintiff on February 18, 2019 but offered no opinion as to whether plaintiff sustained a "serious injury" as result of the claimed head or knee injuries. Because the Franco defendants failed to address plaintiff s claim of "serious injury" based upon the head and knee injuries, the court need not consider the sufficiency of plaintiff s opposition papers on these claims (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Vishevnik v Bouna, 147 A.D.3d 657, 658 [1st Dept 2017]; Perez v Hilarion, 36 A.D.3d 536, 537 [1st Dept 2007]; Han v BJ Laura & Son, Inc., 122 A.D.3d 591, 593 [2d Dept 2014]).
In opposition, plaintiff submitted the affirmations of a physiatrist. Dina Nelson, M.D., a neurologist, Peter C. Kwan, M.D., a radiologist, David Payne, M.D., a neuroradiologist, Karl L. Hussman, M.D., and an orthopedic surgeon, Gabriel L. Dassa, D.O., F.A.A.O.S.; medical records from St. Barnabas Hospital and Physical Medicine & Rehabilitation of NY, P.C. ("PMR"); plaintiff s affidavit dated September 12, 2019; and photographs of the subject vehicles.
Plaintiff s evidence is sufficient to raise an issue of fact as to whether he sustained "permanent consequential" and "significant" limitations of use of his lumbar spine as a result of the accident (see Holloman v American United Transp. Inc., 162 A.D.3d 423, 424 [1st Dept 2018]; Moreira v Mahabir, 158 A.D.3d 518 [1st Dept 2018]; Perdomo v City of NY, 129 A.D.3d 585, 586 [1st Dept 2015]; Rosado v Wadolowski, 128 A.D.3d 454, 455 [1st Dept 2015]; Kang v Almanzar, 116 A.D.3d 540, 541 [1st Dept 2014]). On March 20, 2018. Dr. Nelson examined plaintiff, finding tenderness in the bilateral sacroiliac joint and bilateral gluteal muscle, range-of-motion limitations in the lumbar spine and positive straight-leg raising on the left. On April 24, 2018 and July 31, 2018, Dr. Nelson re-examined plaintiff s lumbar spine, finding continuing range-of-motion restrictions that Dr. Nelson causally related to the subject accident. Dr. Nelson opined that plaintiff had reached maximum medical improvement with formal physical therapy and diagnosed plaintiff with a partial disability. Dr. Payne reviewed films from the March 24, 2018 MRI of plaintiffs lumbar spine, finding a right foraminal herniation at T12/L1 and multilevel bulging discs, all with impingement.
On May 3, 2019, Dr. Dassa examined plaintiff, finding muscle spasm from LI through L5, decreased range of motion in the lumbar spine, and a positive straight leg raising on the right side at 10 degrees. Dr. Dassa concluded that plaintiff sustained musculoligamentous injury and traumatic disc displacement to his lumbar spine. Dr. Dassa opined that plaintiffs injuries were permanent.
Plaintiffs submissions are sufficient to raise a triable issue of fact as to whether plaintiff sustained a significant, but not permanent, limitation of use of the left shoulder as a result of the subject accident (see Kang v Almanzar, 116 A.D.3d at 541; Kone v Rodriguez, 107 A.D.3d at 538). Dr. Nelson examined plaintiffs left shoulder initially on March 20, 2018, finding anterior tenderness, impingement and range-of-motion restrictions with pain. Dr. Nelson causally related plaintiffs shoulder injuries to the subject accident and recommended an MRI and an orthopedic consultation of the left shoulder. Dr. Payne reviewed films from the March 24, 2018 MRI of plaintiffs left shoulder, finding tendinosis of the anterior fibers of the supraspinatus and an anteroinferior labral tear. On April 24, 2018 Dr. Nelson examined plaintiff, finding continuing symptoms and range-of-motion limitations in the left shoulder and diagnosed plaintiff with left shoulder derangement, a labral tear and tendinosis. Dr. Nelson found plaintiff partially disabled and directed him to continue physical therapy.
However, Dr. Nelson's July 31, 2018 examination of plaintiffs left shoulder revealed full range of motion without restrictions. While Dr. Dassa's May 3, 2019 examination of plaintiff found range-of-motion limitations in the left shoulder and positive provocative testing, Dr. Dassa's opinion that such limitations are causally related to the subject accident and that plaintiff sustained a permanent left shoulder injury is rendered speculative by his failure to reconcile Dr. Nelson's earlier findings of normal range of motion with his recent findings (see Alverio v Martinez, 160 A.D.3d 454, 455 [1st Dept 2018]; Rose v Tall, 149 A.D.3d 554, 555 [1st Dept 2017]; Khanfour v Nayem, 148 A.D.3d 426, 427 [1st Dept 2017]; Booth v Milstein, 146 A.D.3d 652, 652-653 [1st Dept 2017]).
With respect to plaintiffs claimed cervical spine injuries, plaintiff s March 15, 2018 CT Scan noted findings of mild degenerative disc disease at the C5-6 and C6-7 levels. Dr. Dassa further noted that plaintiff s CT scan did not demonstrate any traumatic findings. Plaintiff failed to raise a triable issue of fact as to whether the claimed cervical spine injuries were causally related to the subject accident because his experts fail to address or contest the evidence of degeneration, noted in plaintiffs own records, or explain why the preexisting degenerative condition could not have been the cause of his conditions (see Auquilla v Singh, 162 A.D.3d 463, 464 [1st Dept 2018]; Hessing v Carroll, 161 A.D.3d at 463; Farmer v Ventkate Inc., 117 A.D.3d 562, 562 [1st Dept 2014]).
Accordingly, it is
ORDERED, that the aspects of defendants' motion seeking summary judgment dismissing (1) plaintiff s claims under the permanent consequential limitation category of Insurance Law § 5102(d) with respect to his cervical spine and left shoulder, and (2) plaintiffs claims under the significant limitation category of Insurance Law § 5102(d) with respect to his cervical spine, are granted, and these claims are dismissed; and it is further
ORDERED, that the motion is otherwise denied.
The parties are reminded of the December 6, 2019 compliance conference before the undersigned.
This constitutes the decision and order of the court.