Opinion
Index No. 152124/2021 MOT1ON SEQ. No. 001
11-13-2023
ROBERT FASANO, Plaintiff, v. STEPHANIE MALLEN, BURTON MALLEN, Defendants.
Unpublished Opinion
MOTION DATE 06/27/2022
PRESENT: HON. JAMES G. CLYNES Justice
DECISION + ORDER ON MOTION
James G. Clynes Judge:
The following e-filed documents, listed by NYSCEF document number (Motion 001) 20, 21,22, 23, 24,25, 26, 27, 28, 29, 30, 31. 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42,43,44 were read on this motion to/for JUDGMENT - SUMMARY .
Upon the foregoing documents and following oral argument, the motion by Defendants for summary judgment and dismissal of Plaintiff's Complaint on the grounds that Plaintiff s claimed injuries do not satisfy the serious injury threshold under Insurance Law 5102(d) and 5104 is decided as follows:
Plaintiff seeks recovery for injuries allegedly sustained as a result of a November 9, 2021 motor vehicle accident between a vehicle owned by Defendants and operated by Defendant Stephanie Mallen, and a vehicle owned and operated by Plaintiff. Plaintiffs Bill of Particulars alleges injuries to his cervical spine, lumbar spine, left hand and left ring finger, including cognitive deficits arising from the neck injury that continue to affect his short-term memory. Plaintiffs Bill of Particulars contends that these injuries fall within four of the categories set forth under Insurance Law 5102 (d): permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; and 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.
The burden rests upon the movant to establish that the plaintiff has not sustained a serious injury (Perez v Rodriguez, 25 A.D.3d 506 [1st Dept 2006]; Lowe v Bennett, 122 A.D.2d 728 [1st Dept 1986]). When the movant has made such a showing, the burden shifts to the plaintiff to produce prima facie evidence to support the claim of serious injury (see Lopez v Senatore, 65 N.Y.2d 1017 [1985]; Abate v Wolf, 219 A.D.3d 1118 [4th Dept 2023]).
In support of their motion, Defendants rely on the affirmed independent reports of an orthopedic surgeon, Dr. Roy G. Kulick, a psychologist, Dr. Joel Redfield, and a radiologist. Dr. Sheldon P. Feit.
Dr. Kulick concluded, after an examination of Plaintiff, that Plaintiff suffered no disability as a result of the motor vehicle accident. Dr. Kulick found that Plaintiff suffered a contusion and swelling of the left hand in the wake of the accident, but that those issues resolved soon afterwards. (Maenza v Letkajornsook, 172 A.D.2d 500 [2d Dept 1991] ["allegations of sprains and contusions are insufficient to establish that the plaintiff sustained a 'serious injury' as defined in the statute"]). Dr. Kulick also assessed that Plaintiff continues to suffer from "classic osteoarthritis." but opined that as it is symmetrical on both hands, it is not attributable to the accident.
Dr. Redfield, in turn, examined Plaintiffs complaints of neurological disabilities stemming from the alleged injuries to his head and neck. After examining Plaintiff, administering tests, and reviewing prior records, Dr. Redfield found no evidence of a post-concussion syndrome or neurocognitive disorder due to traumatic brain injury. Based on his objective evaluation, he did not find evidence of legitimate cognitive deficits or any form of psychopathology, or any neuropsychological disability, either related to the subject accident or to any other cause.
Dr. Feit performed an independent radiology review, consisting of an examination of Plaintiff s post-accident MRI of the cervical spine. The radiologist concurred that Plaintiff suffers from disc bulges (at the C3-C4, C4-C5, C5-C6, C6-C7 and C7-Tl levels), degenerative spondylosis and associated herniations at the C4-C5, C5-C6, C6-C7 levels. According to Dr. Feit, however, these issues are degenerative and "there are no abnormalities causally related to the accident..."
With respect to the claim of deprivation of Plaintiff s usual activities of work and living for 90 of 180 days, Defendants, citing Plaintiffs deposition testimony, point to his admission that he returned to work a week after the accident and was able to perform his usual duties. His Bill of Particulars avers that he was confined to his house and his bed for two weeks after the accident. Although Plaintiff described some limitations, he offered no proof to overcome the evidence, largely in the form of his own testimony, that he remained able to engage in substantially all his usual activities for most of the 180-day period (Manrique v Warshaw Woolen Assoc., 297 A.D.2d 519 [1st Dept 2002]). The record similarly contains no medical evidence of a 90/180 days limitation (see Zambrana v Timothy, 95 A.D.3d 422 [1st Dept 2012]; Balshan v Bouck, 206 A.D.2d 747,748 [3d Dept 1994]).
Defendants have met their initial burden of establishing that Plaintiff did not sustain serious injuries as a result of the accident under Insurance Law 5102 (d) (Perez v Rodriguez, 25 A.D.3d 506 [1st Dept 2006]). The burden therefore shifts to Plaintiff to raise an issue of fact.
In opposition, Plaintiff relies upon the reports and records of his treating physicians. These include Dr. Joyce Goldenberg, board certified in physical medicine and rehabilitation, Dr. Emilio Oribe, whose specialty is not noted, and Dr. Salvatore R. Lenzo, a hand surgeon. His opposition also includes an MRI evaluation from Dr. David Milbauer of Lenox Hill Radiology. The reports and records of Dr. Milbauer, Dr. Oribe, and Dr. Lenzo are unaffirmed and unsworn. While it is true that uncertified medical records and unsworn letters or reports are of no probative value in opposing a summary judgment motion, the New York Court of Appeals ruled that a sworn medical opinion that relies on unsworn MRI reports constitutes competent evidence (Pommells v Perez, 4 N.Y.3d 566 [2005]). Accordingly, the Court will not consider the unsworn and unaffirmed treatment records. However, the affirmed reports of Dr. Goldenberg sufficiently raise an issue of fact.
Dr. Goldenberg affirmed her opinion that the in jury is permanent, a product of the accident and not caused by degeneration, and backed up her conclusion with range-of-motion testing. Plaintiff first sought treatment with Dr. Goldenberg on December 3. 2019. Dr. Goldenberg measured Plaintiffs range of motion with an inclinometer or goniometer. Those tests revealed tenderness, as well as loss of range of motion as to Plaintiffs cervical spine and left hand, as well as positive objective tests as to Plaintiffs cervical spine. Dr. Goldenberg also reviewed the MR1 of Plaintiff s cervical spine performed on January 9, 2020 and the EMG/NCV of the cervical and lumbar spine performed on February 12, 2020. With regard to the MRI of the cervical spine, Dr. Goldenberg noted a posterior disc bulge at C4-C5, diffuse disc bulge at C5-C6 and C6-C7 associated with mild foraminal narrowing, right more than left at both levels, and midline posterior disc bulge at C7-Tl associated with mild C7- Tl facet arthrosis. With regard to the EMG/NCV of the cervical and lumbar spine, Dr. Goldenberg noted evidence of left C5 cervical radiculopathy and a bilateral carpal tunnel syndrome. Dr. Goldenberg reported limitation in range of motion as to Plaintiffs cervical spine at her most recent examination of Plaintiff on July 5, 2022.
Dr. Goldenberg found a causal relationship between the automobile collision and Plaintiffs injuries. With regard to the degeneration cited by Defendants' Dr. Feit. Dr. Goldenberg opined that degeneration did not play a factor in the causation of Plaintiff s injuries, treatment and ultimate diagnosis of permanency. Dr. Goldenberg explained that Plaintiff had not sought any treatment for his cervical spine for over 16 years, nor had he ever had any reason to seek any treatment for his cervical spine during that time span. Rather, she opinioned. Plaintiff s condition began following this accident and the subject accident exacerbated and aggravated any underlying asymptomatic conditions in Plaintiffs cervical spine.
Dr. Goldenberg concluded that Plaintiff has a permanent impairment and disability due to the injuries he sustained in the subject accident.
At Plaintiffs examination before trial he testified that he was not confined to his bed or to his home for any amount of time after the accident, he missed one week of work, and that the most affected element of his daily life is his sleep because he can't get comfortable in different positions, he wakes up with headaches, or he has bouts of insomnia. Plaintiffs subjective claims of pain and his unsubstantiated claim that she was unable to perform her customary daily activities during the relevant period following the accident are insufficient to raise a triable issue of fact with respect to his 90/180 days serious injury claim (Copeland v Kasalica, 6 A.D.3d 253. 254 [1st Dept 2004]). Therefore, Defendants' motion for summary judgment is granted under the 90/180 category only. Accordingly, it is
ORDERED that the motion by Defendants for summary judgment and dismissal of Plaintiffs complaint is DENIED except as to Plaintiffs claim of serious injury' under the 90/180-day category of Insurance Law 5102 (d); and it is further
ORDERED that any requested relief not specifically addressed herein has nonetheless been considered; and it is further
ORDERED that within 30 days of entry Plaintiff shall serve a copy of this Decision and Order upon Defendants with Notice of Entry.
This constitutes the Decision and Order of the Court.