Opinion
Index No. 21646/2018E
10-02-2019
CHERUBIN FRANCOIS, Plaintiff, v. BIG TEAM INC. and DANHAI D. MARTIN, Defendants.
Unpublished Opinion
FRANCOIS, CHERUBIN, A.J.S.C.
The following papers in the NYSCEF System were read on this motion for SUMMARY JUDGMENT (DEFENDANT) , noticed on June 12, 2019 and duly submitted as No. 32 on the Motion Calendar of September 25, 2019
NYSCEF Doc. Nos.
Notice of Motion - Exhibits and Affidavits Annexed
18-29
Notice of Cross-Motion - Exhibits and Affidavits Annexed
Answering Affidavit and Exhibits
32-34
Replying Affidavit and Exhibits
36
Filed Papers
Memoranda of Law
Stipulations
Upon the foregoing papers, defendants' motion for summary judgment on the ground that plaintiff did not sustain a "serious injury" in the subject July 13, 2015 motor vehicle accident is granted in part, in accordance with the annexed decision and order.
DECISION AND ORDER
John R. Higgitt. J.
Upon defendants' May 10, 2019 notice of motion and the affirmation, exhibits and memorandum of law submitted in support thereof; plaintiffs undated affirmation in opposition and the exhibit submitted therewith; defendants' September 25, 2019 affirmation in reply; and due deliberation; defendants' motion for summary judgment on the ground that plaintiff did not sustain a "serious injury" in the subject July 13, 2015 motor vehicle accident is granted in part.
Plaintiff alleges injuries to the cervical and lumbar aspects of his spine. Although he declined to particularize the Insurance Law § 5102(d) categories under which he claims "serious injury" (see CPLR 3043[b][6]), it is apparent from the injuries alleged that the relevant categories include permanent consequential limitation, significant limitation and 90/180-day injury (see Khamidov v Chase Manhattan Bank. N.A., 18 Misc.3d 137[A], 2008 NY Slip Op 50283 [U] [App Term 2d Dept 2008]).
Plaintiff s bill of particulars also alleges unspecified injuries to plaintiffs head, right leg, "left rib," chest and abdomen. Plaintiff s proof in opposition mentioned only cervical, lumbar and right knee complaints and assessments; accordingly, claims of "serious injury" premised on any other alleged injury are deemed abandoned (see Kuehne & Nagel. Inc. v Balden, 36 N Y2d 539 [ 1975]; Henry v Carr, 161 A.D.3d 424 [ I st Dept 2018]), and the "serious injury" claims based on those alleged injuries are therefore dismissed (see Ng v NYU Langone Med. Ctr., 157 A.D.3d 549 [1st Dept 2018]).
In support of the motion, defendants submit the affirmed reports of orthopedic surgeon Dr. Denton and neurologist Dr. Elkin, the uncertified police accident report, and the transcript of plaintiffs January 24, 2019 deposition testimony.
Dr. Denton examined plaintiff on February 20, 2019, approximately three and a half years after the accident. Dr. Denton measured full, greater than normal and decreased ranges of motion in the tested planes of plaintiffs cervical and lumbar spine, albeit without tenderness, spasm or positive results on objective provocative testing. Straight-leg raising was negative bilaterally, and Dr. Denton's neurological exam yielded normal results, with symmetrical reflexes, normal motor strength and intact sensation. With respect to plaintiffs right knee, Dr. Denton measured a minor limitation in range of motion, and all objective provocative testing yielded negative results. Dr. Denton concluded that plaintiff had sustained resolved cervical, lumbar and knee sprain/strain without objective evidence of orthopedic disability, and that any decreased ranges of motion were not correlated by positive objective findings.
Dr. Elkin examined plaintiff on March 20, 2019. Dr. Elkin measured full ranges of motion in all tested planes of movement of plaintiffs right knee and the cervical and lumbar aspects of his spine. Dr. Elkin's examination yielded no objective findings of neurological injury attributable to the accident, plaintiffs symptoms being consistent with muscle sprain. Dr. Elkin did not opine as to plaintiffs knee injury, deferring same to the appropriate specialist.
Dr. Elkin noted that a cervical CT scan conducted in the emergency room following the accident showed degenerative changes and opined that, in the absence of objective neurological evidence, degeneration was the cause of plaintiffs pain and restriction in motion. Defendants, however, did not argue a lack of causation with respect to plaintiff s alleged cervical injuries, and merely raising facts that might potentially support a particular theory with actually arguing the theory is insufficient to deem the theory argued and properly before the court (see e.g. Matter of Setters v A! Props. & Devs. (USA) Corp., 139 A.D.3d 492 [1st Dept 2016]). It is improper for the court to grant relief on the basis of a theory not raised by the parties (see Collucci v Collucci, 58 N.Y.2d 834 [ 1983]; see also Jones v U.S. Healthcare, 282 A.D.2d 347 [1st Dept 2001], Iv dism 96 N.Y.2d 897 [2001]).
With respect to plaintiffs right knee injury, defendants' proof was sufficient to meet their prima facie burden (see Diakite v PSAJA Corp., 173 A.D.3d 535 [1st Dept 2019]; Riollano v Leavey, 173 A.D.3d 494 [1st Dept 2019]; Tejada v LKQ Hunts Point Parts, 166 A.D.3d 436 [1st Dept 2018]), and plaintiff failed to raise an issue of fact, the recent examination of plaintiff, submitted in opposition, disclosing no evidence of limitation (see Hayes v Gaceur, 162 A.D.3d 437 [1st Dept 2018]). Defendants' experts were not required to review plaintiffs medical records (see Latus v Ishtarq, 159 A.D.3d 433 [1st Dept 2018]) or films from imaging studies (see Chinfam v Fenelus, 65 A.D.3d 946 [1st Dept 2009]) prior to forming their opinions. Dr. Denton's finding of a range-of-motion deficit was neither significant nor consequential within the meaning of the Insurance Law (see II Chung Lim v Chrabaszcz, 95 A.D.3d 950 [2d Dept 2012]; McLoud v Reyes, 82 A.D.3d 848 [2d Dept 2011]).
If it is found that plaintiff sustained any injury that constitutes a "serious injury," plaintiff is entitled to recover damages for any other injury causally related to the accident (see Singer v Gae Limo Corp., 91 A.D.3d 526 [1st Dept 2012]; Rubin v SMS Taxi Corp., 71 A.D.3d 548 [1st Dept 2010]; see also Linton v Nawaz, 14 N.Y.3d 821 [2010]).
With respect to plaintiffs cervical and lumbar claims, defendants failed to meet their burden. Dr. Denton's findings of decreased ranges of motion conflicted with his opinion that plaintiffs injuries were resolved (see Lewis v Revello, 172 A.D.3d 505 [1st Dept 2019]; Rosario v Cablevision Sys., 160 A.D.3d 545 [1st Dept 2018]). Although Drs. Denton and Elkin found that plaintiffs injuries were resolved without objective evidence of orthopedic or neurological injury to support the limitations found by Dr. Denton, Dr. Denton's opinion that plaintiffs ranges of motion were subjective was conclusory (see Johnson v Salaj, 130 A.D.3d 502, 502 [1st Dept 2015]; cf. Alston v Elliott, 159 A.D.3d 575 [1st Dept 2018]; Swift v N.Y.Transit Auth., 115 A.D.3d 507 [1st Dept 2014]).
With respect to plaintiffs 90/180-day injury claim, defendants failed to meet their prima facie burden. The deposition testimony to which defendants referred did not encompass the relevant statutory time period, and defendants did not point to any potentially fatal allegations in plaintiffs bill of particulars (plaintiff alleged that he had been confined to home intermittently since the accident) (see Sampson v Vinlo Cab Corp., 70 A.D.3d 405 [1st Dept 2010]). The defense experts' examinations of plaintiff, occurring years after the accident, were not probative on this claim (see Quinones v Ksieniewicz, 80 A.D.3d 506 [1st Dept 2011]; Manrique v Wars haw Woolen Assocs., 297 A.D.2d 519 [1st Dept 2002]).
Accordingly, it is
ORDERED, that the aspects of defendants' motion for summary judgment dismissing plaintiffs claims of "serious injury" to his right knee, head, right leg, "left rib," chest and abdomen are granted, and such claims are dismissed; and it is further
ORDERED, that the motion is otherwise denied.
The parties are reminded of the January 24, 2020 compliance conference before the undersigned.
This constitutes the decision and order of the court.