Opinion
Index 17-605249
04-15-2019
JAMES GONZALEZ, Plaintiff, v. MARGARET KRUMHOLZ, Defendant.
Attorney for Plaintiff: LEVINE AND WEISS, PLLC Attorney for Defendant: PICCIANO & SCAHILL, P.C.
Unpublished Opinion
MOTION DATE 7-26-18 (001)
MOTION DATE 2-7-19 (002)
Attorney for Plaintiff: LEVINE AND WEISS, PLLC
Attorney for Defendant: PICCIANO & SCAHILL, P.C.
PRESENT: Hon. WILLIAM G. FORD Justice
WILLIAM G. FORD J.S.C.
Upon the following papers read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant, dated June 11, 2018; Notice of Cross Motion and supporting papers by plaintiff, dated December 31, 2018; Answering Affidavits and supporting papers by plaintiff dated December 31, 2018; Answering Affidavits and supporting papers by defendant dated January 25, 2018; Replying Affidavits and supporting papers by defendant dated February 1, 2019; Replying Affidavits and supporting papers by plaintiff dated February 6, 2019; Other __; it is, ORDERED that the motion by defendant Margaret Krumholz seeking summary judgment dismissing the complaint on the grounds that plaintiff James Gonzalez did not sustain an injury within the meaning of the serious injury threshold requirement of Insurance Law § 5102 (d) is granted; and it is further
ORDERED that the cross motion by plaintiff for summary judgment in his favor on the issue of serious injury is denied, as moot.
Plaintiff James Gonzalez commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Montauk Highway and Berard Boulevard in the Town of Islip on December 13, 2016. By his complaint, plaintiff alleges that he was struck by the vehicle owned and operated by defendant Margaret Krumholz when it made a left turn from Berard Boulevard onto Montauk Highway. At the time of the accident, plaintiff was traveling on a skateboard through the subject intersection. Plaintiff, in his bill of particulars, alleges, among other things, that he sustained various personal injuries as a result of the subject collision, including disc herniations at levels C3 through C7, and disc bulges at levels T10 through SI. Plaintiff further alleges that he was incapacitated from his employment for approximately six months, and that he remains partially disabled until today as a result of the injuries he sustained in the accident.
Defendant now moves for summary judgment on the basis that the injuries alleged to have been sustained by plaintiff as result of the subject accident failed to meet the serious injury threshold requirement of Insurance Law § 5102 (d). In support of the motion, defendant submits copies of the pleadings, plaintiffs deposition transcript, and the sworn medical reports of Dr. Edward Toriello and Dr. James Greenfield. At defendant's request, Dr. Toriello conducted an independent orthopedic examination of plaintiff on April 23, 2018. Also at defendant's request, Dr. Greenfield performed an independent radiological review of the magnetic resonance imaging ("MRI") films of plaintiffs knees, and spine taken on January 8, 2017, February 14, 2017, February 7, 2017, and February 24, 2017, respectively. Plaintiff opposes the motion on the grounds that defendant has failed to meet his prima facie burden, and that the evidence submitted in opposition demonstrates that he sustained injuries within the "limitations of use" and the "90/180" categories of the Insurance Law as a result of the subject accident. In opposition to the motion, plaintiff submits his own affidavit, and the sworn medical reports of Dr. Timothy Mosomillo, Dr. Chris Moros. Plaintiff also submits the sworn medical reports of Dr. Robert Diamond, Dr. Steven Winter, Dr. Cono Gallo, and Dr. Alan Greenfield.
Plaintiff also cross-moves for summary judgment in his favor on the complaint on the basis that the injuries he sustained as a result of the subject accident come within the meaning of the serious injury threshold requirement of Insurance Law § 5102 (d). Plaintiff relies on the same evidence as submitted in opposition to defendant's motion to establish his prima facie burden.
The purpose of New York State's No-Fault Insurance Law is to "assure prompt and full compensation for economic loss by curtailing costly and time-consuming court trial[s]" (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]), and requiring every case, even those with minor injuries, to be decided by a jury would defeat the statute's effectiveness (see Licari v Elliott, supra). Therefore, the No-Fault Insurance law precludes the right of recovery for any "non-economic loss, except in the case of serious injury, or for basic economic loss" (see Insurance Law § 5104 [a]; Martin v Schwartz, 308 A.D.2d 318, 766 N.Y.S.2d 13 [1st Dept 2003]). Any injury not falling within the definition of "serious injury" is classified as an insignificant injury, and a trial is not allowed under the No-Fault statute (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]; Gaddy v Eyter, 19 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Martin v Schwartz, supra).
Insurance Law § 5102 (d) defines a "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."
A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, 79N.Y.2d 955, 582 N.Y.S.2d 990 [1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, [such as], affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept 1992]). A defendant may also establish entitlement to summary judgment, using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians (see Fragale v Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001]; Grossman v Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 [2d Dept 2000]; Vignola v Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [2d Dept 1997]; Torres v Micheletti, 208 A.D.2d 519, 616 N.Y.S.2d 1006 [2d Dept 1994]). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, 84N.Y.2d795, 622N.Y.S.2d900 [1995]; Tornabene v Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [2dDept 2003]; Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept 1992]). However, if a defendant does not establish a prima facie case that the plaintiffs injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiffs opposition papers (see Burns v Stranger, 31 A.D.3d 360, 819 N.Y.S.2d 60 [ 2d Dept 2006]; Rich-Wing v Baboolal, 18 A.D.3d 726, 795 N.Y.S.2d 706 [2d Dept 2005]; see generally Winegrad v New York Univ. Med. Or., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]).
Here, defendant, by submitting competent medical evidence and plaintiffs deposition transcript, has established a prima facie case that plaintiff did not sustain a serious injury within the meaning of Section 5102 (d) of the Insurance Law as a result of the subject accident (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra;Kaplan v Margolis, 167 A.D.3d 727, 87N.Y.S.3d 502 [2d Dept 2018]; Lambropoulos v Gomez, 166 A.D.3d 952, 86 N.Y.S.3d 737 [2dDept 2018]). Defendant's examining orthopedist, Dr. Toriello, states in his report that an examination of plaintiff revealed he has full range of motion in his spine and knees, that there was no paraspinal muscle spasm or atrophy, that there was no motor or sensory deficits in the upper or lower extremities, and that there was no erythema, ecchymosis, swelling or tenderness of the left or right knee. Dr. Toriello states that the straight leg raising test was bilaterally full and pain free, that ambulation was independent and normal, and that there was normal heel and toe gait. Dr. Toriello opines that the strains plaintiff sustained to his throacolumbar spine and knees in the accident have resolved, that there is no objective evidence of an orthopedic disability or permanency, and that he is capable of performing his normal daily activities of living without restriction.
In addition, defendant's examining radiologist, Dr. Greenfield, opines that a review of plaintiff s MRI studies for his knees shows no evidence of recent fractures or mensical or ligament tears, but there is evidence of Osgood-Schlatter disease, which is a residual finding of an old childhood disease and predates the subject accident's occurrence. Dr. Greenfield states that a review of the MRI films of plaintiff s cervical, thoracic and lumbar spine reveals evidence of longstanding multilevel degenerative disc disease, which existed prior to the happening of the instant accident. Dr. Greenfield further states that there are no findings on any of the MRI studies taken of plaintiff s knees and spine that can be attributed to the subject accident with any reasonable degree of medical certainty.
Furthermore, reference to plaintiff s own deposition testimony sufficiently refutes the allegations that he sustained injuries within the limitations of use categories (see Colon v Tavares, 60 A.D.3d 419, 873 N.Y.S.2d 637 [1st Dept 2009]; Sanchez v Williamsburg Volunteer of Hatzolah, Inc., 48 A.D.3d 664, 852 N.Y.S.2d 287 [2d Dept 2008]) and the 90/180 category under Insurance Law § 5102(d) (see Bleszcz v Hiscock, 69 A.D.3d 639, 894N.Y.S.2d481 [2dDept 2010]; Jack v Acapulco Car Serv., Inc., 63 A.D.3d 1526, 897 N.Y.S.2d 648 [4th Dept 2010]; Nguyen v Abdel-Hamed, 61 A.D.3d 429, 877N.Y.S.2d 26 [1st Dept 2009]; Kuchero v Tabachnikov, 54 A.D.3d 729, 864 N.Y.S.2d 459 [2d Dept 2008]). At an examination before trial, plaintiff testified that he did not return to his employment following the subject accident, although he was never advised by any doctor that he could not return to work. However, he did testify that his orthopedist informed him that restrictions, such as not performing flips or handstands at his employment as a gymnastics instructor for small children or lifting more than 40 pounds. Plaintiff further testified that the last time he received medical treatment for any injuries associated with the subject accident was in January 2017, and that, although he plans to schedule additional appointments with his care providers, he currently does not have any appointments scheduled.
Therefore, the defendant has shifted the burden to the plaintiff to come forward with evidence in admissible form to raise a material triable issue of fact as to whether he sustained an injury within the meaning of the Insurance Law (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]; see generally Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). A plaintiff claiming a significant limitation of use of a body function or system must substantiate his or her complaints with objective medical evidence showing the extent or degree of the limitation 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]; Kearse v New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281 [2d Dept 2005]). "Whether a limitation of use or function is 'significant' or 'consequential' (i.e. important...), relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel v Green, supra at 798). To prove the extent or degree of physical limitation with respect to the "limitations of use" categories, either objective evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration based on a recent examination of the plaintiff must be provided 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 ]; Toure v Avis Rent A Car Systems, Inc., supra at 350; see also Valera v Singh, 89 A.D.3d 929, 923 N.Y.S.2d 530 [2d Dept 2011]; 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 Licariv Elliott, supra). However, evidence of contemporaneous range of motion limitations is not a prerequisite to recovery (see Perl v Metier, supra; Paulino v Rodriguez, 91 A.D.3d 559, 937 N.Y.S.2d 198 [1st Dept 2012]).
In opposition to defendant's prima facie showing, plaintiff failed to raise a triable issue of fact. Plaintiff is required to present nonconclusory expert evidence sufficient to support a finding not only that the alleged injury is within the serious injury threshold of Insurance Law § 5102(d), but also that the injury was casually related to the subject accident in order to recover for noneconomic loss related to personal injury sustained in a motor vehicle accident (see Valentin v Pomilla, 59 A.D.3d 184, 873 N.Y.S.2d 537 [1st Dept 2009]). The medical evidence proffered by plaintiff was insufficient to establish a serious injury or to defeat defendant's prima facie showing. While plaintiff has submitted the sworn medical reports of Dr. Chris Moros, who documented his examination of plaintiff approximately one week after the subject accident and states that he continued to treat plaintiff until June 2017, each report failed to quantify the limitations in plaintiffs cervical, thoracic or lumbar regions, as well as his knees, bilaterally, based upon objective medical testing (see Ortiz v Ianina Taxi Servs., Inc., 73 A.D.3d 721, 900 N.Y.S.2d 391 [2d Dept' 2010]; Rodriguez v Cesar, 40 A.D.3d 731, 835 N.Y.S.2d 438 [2d Dept 2007]), or to provide a qualitative assessment of those regions of plaintiff s body in his medical report despite stating that the medical records, notes, and treatment assessments were attached to his report (see Robinson-Lewis v Grisafi, 74 A.D.3d 774, [2d Dept 2Q\0]; Acosta v Alexandre, 70 A.D.3d 735, 894 N.Y.S.2d 136 [2d Dept 2010]; Burnett v Smith, 64 A.D.3d 669, 883 N.Y.S.2d 573 [2d Dept 2009]). Instead, the reports perfunctorily state that plaintiff was completely disabled from performing his duties at work, and that the disc herniations and bulges and the bilateral knee injuries were causally related to the subject accident.
Furthermore, despite the fact that the medical report of Dr. Mosomillo states that plaintiff sustained significant range of motion limitations to his spine and to his left and right knees, and that such limitations are permanent and directly related to the subject accident, Dr. Mosomillo initially examined plaintiff in August 2018, almost three years after the subject accident. Thus, plaintiff has failed to submit any admissible report of any examination contemporaneous with the accident to substantiate his claim that he suffered significant limitations at the time of the accident's happening (see Leeber v Ward, 55 A.D.3d 563, 865 N.Y.S.2d 614 [2dDept 2008]; Budhram lv Ogunmoyin, 53 A.D.3d 640, 863 N.Y.S.2d224 [2d Dept 2008]; Manning v Tejeda, 38 A.D.3d 622, 831 N.Y.S.2d 553 [2d Dept 2007]). Without contemporaneous findings of motion limitations, plaintiff is unable to establish the duration of the injuries he alleges to have sustained as a result of the subject accident (see Heumann v JACO Transp., Inc., 82 A.D.3d 1046, 919 N.Y.S.2d 198 [2d Dept 2011]; Villante v Miterko, 73 A.D.3d 757, 901 N.Y.S.2d 311 [2d Dept 2010]; Nieves v Michael, 73 A.D.3d 716, 901 N.Y.S.2d 100 [2d Dept 2010]).
The medical reports of plaintiff s examining radiologists merely revealed that plaintiff sustained disc herniations and bulges in his spine, and joint effusion in his knees, bilaterally. Significantly, plaintiffs radiologists failed to offer any opinion on the cause of the herniations and bulges in plaintiffs spine, or the joint effusion in his knees (see Byam v Waltuch, 50 A.D.3d 939, 857 N.Y.S.2d 605 [2d Dept 2008]; Vishnevsky v Glassberg, 29 A.D.3d 680, 815 N.Y.S.2d 152 [2d Dept 2006]). In addition, plaintiffs self-serving affidavit is insufficient to raise a triable issue of fact as to whether he sustained a serious injury under the no-fault statute (see Strenk v Rodas, 111 A.D.3d 920, 976 N.Y.S.2d 151 [2d Dept 2013]; Fisher v Williams, 289 A.D.2d 288, 734 N.Y.S.2d 497 [2d Dept 2001]).
Finally, plaintiff failed to produce any objective medical evidence to substantiate the existence of an injury which limited his usual and customary daily activities for at least 90 of the first 180 days immediately following the subject accident (see Catalano v Kopmann, 73 A.D.3d 963, 900 N.Y.S.2d 759 [2d Dept 2010]; Haber v Ullah, 69 A.D.3d 796, 892 N.Y.S.2d 531 [2d Dept 2010]). Accordingly, defendant's motion seeking summary judgment dismissing the complaint is granted.
Having determined that defendant met his burden of establishing that plaintiff did not sustain a serious injury within the meaning of Section 5102 (d) of the Insurance Law, plaintiffs cross motion for judgment in his favor on the serious injury threshold issue is denied, as moot.