Opinion
Index No: 514054/2017
05-12-2020
JANNA GENZLINGER, Plaintiff, v. NEW HEIGHTS YOUTH, INC. and RAHME ANDERSON, Defendants.
NYSCEF DOC. NO. 72 At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 12th day of May 2020. PRESENT: HON. CARL J. LANDICINO, Justice. DECISION AND ORDER Mot. Seq. #2 The following papers numbered 1 through 7 read herein:
| Papers Numbered | |
|---|---|
| Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) | 1-5 |
| Opposing Affidavits (Affirmations) | 5-7 |
| Reply Affidavits (Affirmations) | __________ |
Upon the foregoing papers in this action regarding a pedestrian knockdown, Defendants New Heights Youth, Inc. and Rahme Anderson (hereinafter the "Defendants") move (Motion Sequence #2) for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint "because plaintiff did not sustain a casually related serious injury under Insurance Law § 5102 (d) . . ."
Background
On January 2, 2017, Plaintiff Janna Genzlinger (hereinafter the "Plaintiff"), a pedestrian, allegedly suffered personal injuries when she was struck by a minivan owned by Defendant New Heights and operated by Defendant Rahme Anderson. Plaintiff alleges that she was knocked backwards approximately ten feet, landing on her feet. Immediately following the accident, Plaintiff was taken by ambulance to Brooklyn Hospital Emergency Room, where she was ambulatory. She was apparently evaluated by Brian Pritchard, M.D., who ordered an ultrasound of Plaintiff's abdominal area and x-rays of her left knee. Plaintiff was discharged from the emergency room without admission, and was advised to follow up with her primary physician.
On January 3, 2017, Plaintiff visited Roberto Robinson, M.D., her primary physician, who examined her and noted swelling and pain in her knee. Upon examination of her abdomen, he found it to be soft and non-tender. Plaintiff was advised to follow up with an orthopedic surgeon.
On January 4, 2017, Plaintiff visited Gideon Hedrych, M.D., for a follow-up examination. He noted that Plaintiff's chief complaints were neck pain causing difficulty sleeping, back pain and lower abdominal tenderness and pain in both her knees. Dr. Hedrych noted that Plaintiff's abdomen was found without focal tenderness or deformity. He advised Plaintiff to follow up with an orthopedic physician, a neurologist and a physical medicine and rehabilitation specialist.
On January 9, 2017, Plaintiff presented to Colin Clarke, M.D., with complaints of bilateral knee pain, lower back pain, neck pain and left shoulder pain. Upon physical examination of Plaintiff's abdomen it was soft, non-distended and non-tender with no evidence of abdominal mass. His final impression was left knee contusions, left shoulder strain/sprain, lumbar sprain, left hip and cervical sprains.
On January 25, 2017, Plaintiff discovered she was pregnant. On January 31, 2017 Plaintiff visited her obstetrician-gynecologist (OBGYN), John Brennan, M.D., to confirm the pregnancy. Dr. Brennan estimated that Plaintiff was approximately five weeks pregnant. Plaintiff next presented to Dr. Brennan on February 2, 2017, where he noted that Plaintiff had no complaints. At Plaintiff's next examination on February 15, 2017, however, Dr. Brennan discovered that there was no fetal heartbeat. According to Dr. Brenan's notes, Plaintiff was approximately eight weeks pregnant and an ultrasound demonstrated a blighted ovum.
On February 21, 2017, Plaintiff was examined; at which time she was nine weeks pregnant. The ultrasound again demonstrated a blighted ovum, and Plaintiff was informed that the pregnancy was not viable. Plaintiff was advised to undergo dilatation and curettage.
On February 24, 2017, Plaintiff underwent dilatation and suction curettage of the uterus. The pathological results of the curettage showed immature chorionic villi and gestational endometrium and an implantation site consistent with a miscarriage and blighted ovum.
On or about July 18, 2017, Plaintiff commenced this action by filing a summons and verified complaint against the Defendants seeking damages for injuries she sustained in the accident. Plaintiff subsequently filed a Bill of Particulars, alleging that she sustained the following injuries: (1) left knee meniscus tear; (2) left knee chondromalacia and synovitis; (3) left knee arthroscopic surgery; (4) L4/5 disc herniation; (5) lumbar radiculopathy; (6) C4/5 disc bulge; (7) C5/6 bulge; (8) C6/7 bulge; (9) cervical radiculopathy; and (10) loss of fetus necessitating endometrium curettage.
As to the issue of serious injuries defined in Insurance Law § 5102 (d), Plaintiff alleges that she sustained serious injuries in the form of a loss of fetus. She also alleges a permanent loss of use of a body organ, member, function or system, to wit: her left knee, cervical and lumbar spine. She further alleges a permanent consequential limitation of the use of a body organ or member and significant limitation of use of a body function or system. Lastly, Plaintiff alleges that she suffered a medically determined injury which prevented her from performing substantially all of the material acts which constitute her usual and customary daily activities for in excess of ninety (90) of the first one hundred eighty (180) days immediately following the accident.
After issue was joined, discovery ensued. Discovery is now complete, and Defendants' instant summary judgment motion was filed.
In moving for summary judgment, Defendants submit an affirmed report regarding Plaintiff's examination by Alan M. Crystal, M.D., a board-certified orthopedic surgeon authorized to practice in that state of New York. Dr. Crystal found no limitations in the range of motion in Plaintiff's cervical spine, lumbar spine or left knee. Dr. Crystal noted that the left knee x-ray taken three days after the accident did not report an effusion. Dr. Crystal opined that an effusion would be present in the event of a traumatically torn meniscus.
Dr. Crystal also noted that Plaintiff's treating physician, Dr. Baldassare, identified "mild degenerative changes" in his March 15, 2017 report. Regarding that report, Dr. Crystal found that bone contusions were not identified in the MRI, and that the horizontal tears of the meniscus were consistent with degenerative tears. In a March 20, 2017 report, Dr. Baldassare noted mild desiccation of the L4-L5 disc. In his review, Dr. Crystal determined that the mild desiccation was a degenerative loss of water content, which caused the disc to bulge and ultimately herniate.
Based on his review of Plaintiff's left knee operative report, Dr. Crystal opines that Plaintiff's injuries are degenerative in nature. Dr. Crystal explains that there was no abnormality visualized in the lateral spine x-ray and Plaintiff had negative EMG testing. Dr. Cyrstal concludes that the injuries of the lumbar spine, cervical spine and left knee are degenerative and not causally related to the accident.
Defendants, based on Dr. Crystal's examination and report, argue that Plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d). Defendants contend that Plaintiff exhibits no permanent or total loss of use of the affected body parts; noting that Plaintiff continues to work and bicycles at the same rate she did before the accident. Defendants further argue the Plaintiff suffered no permanent or significant limitation of use of any body function or system. Defendants highlight that Dr. Crystal's report concluded that Plaintiff exhibited full range of motion in all body parts. With respect to the 90/180 category of serious injury, Defendants argue that Plaintiff cannot demonstrate a serious injury because she returned to work immediately after the accident, and that she only missed some work to attend physical therapy.
Finally, Defendants argue that Plaintiff fails to meet the standard under the loss of fetus category. In support of this assertion, Defendants submit an affirmed report from Vincent Pillari, M.D., a board-certified OBGYN authorized to practice in the state of New York. Dr. Pillari avers that in his professional opinion the loss of Plaintiff's pregnancy "was not caused by the accident but rather much more likely caused by genetic abnormalities of the egg given her age was 43 years." Dr. Pillari notes that Plaintiff had no bleeding, cramping or other signs suggestive of early miscarriage at any time during the pregnancy. He further notes that Plaintiff was approximately two weeks pregnant at the time of the accident, and that the impact, as alleged, would be insufficient to cause damage to such an early pregnancy.
Plaintiff, in opposition, asserts that Defendants' moving papers fail to establish that Plaintiff did not sustain a serious injury under the loss of fetus category. Plaintiff contends that Dr. Pillari's affirmation offered only speculative conclusions, reflecting only generalized opinions focused on age, and failed to sufficiently consider the alleged accident as a causative factor.
Plaintiff submits the affirmation of Mark Vaynkhadler, M.D., a board certified OBGYN, whom she asserts raises an issue of fact precluding dismissal. Dr. Vaynkhadler opines that the "force of impact from the accident cannot be ruled out as a direct causative factor in the loss of pregnancy as determined from the specimen collected" and that Plaintiff's "age . . . cannot be viewed in isolation and the medical records do not document any instances of spontaneous blighted ovum . . . prior to the January 2017 accident." Dr. Vaynkhadler notes that Plaintiff was not symptomatic of signs of early miscarriage prior to the accident, concluding that the cause of miscarriage was more consistent with trauma from the impact, rather than genetic abnormality. Dr. Vaynkhadler opines that the accident activated and/or severely aggravated pre-existing conditions in the Plaintiff's ovum.
Plaintiff further argues that the Defendants failed to establish an entitlement to summary judgment on the alleged injuries to her neck, back, shoulder, and knee. Plaintiff argues that the affirmation of Dr. Crystal is insufficient, claiming that his opinions are conclusory in its reasoning of restrictions of movement in joint motion found during the examination. Plaintiff further asserts an alleged failure by Dr. Crystal to designate normal values for range of motion testing in his reports. Plaintiff notes that the examination was performed over a year and four months after the accident, and thus is insufficient medical proof to make a prima facie showing under the 90/180 category. Lastly, Plaintiff argues that Dr. Crystal's opinions do not adequately show that the knee injuries claimed do not qualify as a serious injury because he fails to directly deny the presence of tearing.
Plaintiff submits an affirmed report by Madhu B. Boppana, M.D., relating to his examination of Plaintiff, arguing that Dr. Boppana's medical opinions raise an issue of fact which preclude dismissal. Dr. Boppana opines that Plaintiff "has persistent range of motion limitations. She remains symptomatic and persistently shows symptoms of abnormal spinal neurological deficits upon examination."
Dr. Boppana provides charts which illustrate the results of the range of motion testing from his examination of Plaintiff. The doctor found cervical range of motion to be limited with pain on extension, bilateral flexion, lateral flexion, and left and right lateral head rotation. The thoracic spine examination revealed range of motion limitations due to pain, weakness and stiffness. Dr. Boppana found pain and restriction in Plaintiff's left arm abduction above 90 degrees, a restricted internal and external rotation, and extreme tenderness and disability in the left shoulder. The examination revealed tenderness at the hamstring of the left knee, as well as tenderness at the medial joint line showing evidence of a meniscal tear. Dr. Boppana concludes, within a reasonable degree of medical certainty, that Plaintiff's injuries were causally related to the accident.
Discussion
A party seeking summary judgment has the burden of establishing a cause of action or defense "sufficiently to warrant the court as a matter of law in directing judgment in his [or her] favor . . . and [the party] must do so by tender of evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980] [internal quotation marks and citation omitted]; see CPLR 3212[b]).
Under New York law, a party alleging negligence in a motor vehicle accident may only recover damages for pain and suffering if they have suffered a "serious injury," pursuant to Insurance Law § 5102 (d) (see Insurance Law § 5104 [a]; Pommells v Perez, 4 NY3d 566 [2005]). A Defendant seeking summary judgment based on the lack of a "serious injury" must tender evidence eliminating any material issues of fact with respect to the "serious injury" threshold (see Ocasio v Henry, 276 AD2d 611 [2000]).
Once movant has fulfilled this burden, the nonmoving party must show "facts sufficient to require a trial of any issue of fact" (CPLR 3212 [b]). Parties opposing a summary judgment motion are entitled to every favorable inference, and the court must accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents (see Pierre-Louis v DeLonghi Am., Inc., 66 AD3d 859, 862 [2009]). Lastly, "[a] motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Ruiz v Griffin, 71 AD3d 1112, 1112 [2010], quoting Scott v Long Is. Power Auth., 294 AD2d 348, 348 [2002]).
Through their medical evidence, Defendants have made a prima facie showing that Plaintiff did not suffer serious injuries under the permanent consequential limitation of use and significant limitation of use categories of injury in Insurance Law § 5102 (d). However, in opposition, Plaintiff has raised a triable issue of fact as to whether she sustained a serious injury to the cervical region of her spine and her left arm and knee under the permanent consequential limitation of use and significant limitations of use categories (see Toure v Avis Car Rent A Car Sys., 98 NY2d 345, 351-352 [2002]; Byun v McCarthy, 156 AD3d 677, 678 [2017]).
Regarding the 90/180 category in Insurance Law § 5102 (d), Defendants have demonstrated, prima facie, that Plaintiff did not suffer serious injuries. Plaintiff admitted in her bill of particulars that she was only confined to her bed and home for approximately two weeks (see Strenk v Rodas, 111 AD3d 920, 920 [2013]), and Plaintiff testified at her deposition that she only missed 16 to 20 hours of work a week from January 2017 through May 2017 (see Perl v Meher, 18 NY3d 208, 220 [2011]; Heesook Choi v Mendez, 161 AD3d 1054, 1055 [2018]; Candia v Omonia Cab Corp., 6 AD3d 641, 642 [2004]).
However, the Court finds that the Defendants failed to make a prima facie showing that Plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) regarding her loss of a fetus. In order to meet their burden, Defendants were required to present evidence in admissible form establishing that Plaintiff did not suffer a serious injury causally related to the accident (Gaddy v Eyler, 79 NY2d 955 [1992]). Dr. Pillari's expert opinion that Plaintiff's loss of fetus was not causally related to the accident is conclusory.
Dr. Pillari avers that "most causes of a missed abortion results from severe genetic abnormalities of the female egg" and that "[p]atients who are at the age of 43 have an extremely high incidence of genetic abnormalities." Using these broad medical principles, Dr. Pillari speculates that Plaintiff's loss of fetus was "much more likely" a result of her age. As Dr. Pillari fails to explain his conclusion with objective medical evidence, his reasoning lacks probative value (Jean v New York City Tr. Auth., 85 AD3d 972 [2011]; Reitz v Seagate Trucking, Inc., 71 AD3d 975 [2010]; Ortiz v S&A Taxi Corp., 68 AD3d 734 [2010]; Powell v Prego, 59 AD3d 417 [2009]). Defendants' failure to meet their prima facie burden requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518 [2006]).
In any event, even assuming, arguendo, that Defendants' papers did serve to establish a prima facie showing that the Plaintiff did not suffer as Serious Injury, as that term is defined by Insurance Law 5102(d), Plaintiff's opposing papers, as detailed above, do serve to raise material issues of fact with respect to Plaintiff having suffered a Serious Injury as a consequence of the subject accident.
Accordingly, for the foregoing reasons, it is
ORDERED that Defendants' summary judgment motion (Motion Sequence # 2) is denied.
This constitutes the decision and order of this court.
ENTER,
/s/_________
Carl J. Landicino, J. S. C.