Opinion
Index No. 162187/2019 Motion Seq. No. 002
01-04-2024
RAQUEL GONZALEZ Plaintiff, v. DIANA ROMAN, Defendant.
Unpublished Opinion
MOTION DATE 09/29/2022
PRESENT: HON. JAMES G. CLYNES, Justice
DECISION + ORDER ON MOTION
JAMES G. CLYNES, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37,38, 39.40, 41,42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, the motion by Defendant for summary judgment and to dismiss the Complaint on the grounds Plaintiffs claimed injuries do not satisfy the serious injury threshold under Insurance Law 5102 (d) is decided as follows:
Plaintiff seeks recovery for injuries allegedly sustained as a result of an October 22. 2019 motor vehicle accident between Plaintiff and Defendant. Plaintiffs Bill of Particulars alleges injuries to her right shoulder, for which she underwent an arthroscopy on July 29, 2020, cervical spine, thoracic spine, lumbar spine, and left ankle/foot and that these injuries fall within the categories set forth under Insurance Law 5102 (d).
The burden rests upon the movant to establish that the plaintiff has not sustained a serious injury (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]).
In support of their motion, Defendants rely on the affirmed independent orthopedic examination report of Dr. Jeffrey Dermksian, orthopedic surgeon, and the medical records of Plaintiff, consisting of unaffirmed MRI reports of Dr. John Himelfarb of Lenox Hill Radiology, Dr. David H. Stemerman. of Stand-Up MRI of Deer Park, P.C., and the unsigned and unaffirmed report of Dr. Muhammed Mirza of NYC Madison Avenue Medical PC.
Dr. Dermksian examined Plaintiff on February 23, 2021 and concluded that there is no objective evidence of disability or limitations related to the subject accident. Dr. Dermksian measured Plaintiff s range of motion with a goniometer and found normal range of motion as to the cervical spine, right shoulder, and thoracic/lumbar spine. As to Plaintiffs left ankle/foot. Dr. Dermksian measured normal range of motion with the exception of a 5-degree limitation on eversion, which he noted was subjective and controlled by the individual. According to Dr. Dermksian, the MRI report of the left foot and ankle was consistent with a lateral ankle sprain that would have healed on its own within 6 to 8 weeks, and as the physical examination of the left ankle showed no evidence of ligament instability, the lateral ligament injury had healed based upon the objective findings on the physical examination. Dr. Dermksian also reviewed the MRI reports of Plaintiff s right shoulder and concluded that the findings were pre-existing to the subject accident. Dr. Dermksian also reviewed the color intraoperative photos for the right shoulder arthroscopy dated 7/29/2020 which showed no acute abnormalities or tears. Dr. Dermksian opined that Plaintiff is capable of working and performing her usual and customary activities without limitations or restrictions.
The MRI report of the right shoulder taken on September 30, 2019 revealed a partial tear of the supraspinatus tendon and a mild amount of fluid of the subacromial subdeltoid bursa. A partial tear of a tendon is not in itself a serious injury, particularly if, as here, it is unaccompanied by objective evidence of serious injury (Simanovskiy v Barbaro, 72 A.D.3d 930 [2d Dept 2010] [the existence of bulging discs and torn ligaments is not evidence of a serious injury in the absence of objective evidence of the extent and duration of the alleged physical limitations resulting from these injuries]).
The MRI report of the lumbar spine taken on August 27, 2019 revealed no significant disc bulge or herniation and some impingement on the posterior thecal sac related to prominent epidural fat. The MRI report of the cervical spine taken on August 27, 2019 revealed no significant disc bulge or herniation except for a posterior subligamentous disc bulge at C6/7 and prominent soft tissue in the pharyngeal region.
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 on the narrative report, operative report, and medical records of Dr. Aleksandr Khaimov, orthopedic surgeon, and the affirmation and MRI reports of Dr. Amy Liebeskind, radiologist. Plaintiff also submits physical therapy records beginning on November 19, 2019.
Dr. Khaimov first examined Plaintiff on June 8, 2020 and measured Plaintiffs range of motion with a goniometer. Dr. Khaimov reported decreased range of motion and positive objective tests as to Plaintiff s right shoulder and left ankle. Dr. Khaimov performed a right shoulder arthroscopy, rotator cuff and labral debridement, ablation chondroplasty, rotator cuff tenotomy, lysis of adhesion and synovectomy on July 29, 2020 and reported a partial rotator cuff tear, partial labral tear, chondromalacia glenoid, adhesion and synovitis. Plaintiff was examined most recently by Dr. Khaimov on November 3, 2022, who measured Plaintiffs range of motion and reported limitation as to Plaintiffs right shoulder and left ankle, Dr. Khaimov concluded that Plaintiffs injuries were caused by the subject accident, are permanent, and that she has functional limitations of her right shoulder and left ankle.
Dr. Liebeskind interpreted the MRI of Plaintiff s left ankle and right shoulder both taken on June 27, 2020. As to the left ankle, Dr. Liebeskind reported a low-grade partial ATFL tear, mild calcaneofibular ligament sprain, and small effusion at tibiotalar joint. As to the right shoulder, Dr. Liebeskind compared the MRI to an MRI taken on October 2, 2019, prior to the accident, and noted a new low-grade intrasubstance tear within the rotator cuff.
With respect to the 90/180 days serious injury claim, Plaintiff relied on her examination before trial (EBT), in which she testified that after the accident, she was confined to her bed for about one week and to her home for about one week, after the surgery to her right shoulder she was confined to her bed for about three days and to her home for about three and a half months. She also testified that she has difficulty playing with her children, running, writing for long periods of time, and that these activities were affected by the October 22, 2019 accident, not a prior accident.
Plaintiff has raised a sufficient question of fact as to the injuries to her left ankle and right shoulder to preclude summary judgment in Defendant's favor. It is not necessary to determine the adequacy of the evidence as to her remaining alleged injuries. She may be entitled to recover for all injuries causally related to the subject accident (see Linton v Nawaz, 14 N.Y.3d 821 [2010]; Rubin v SMS Taxi Corp., 71 A.D.3d 548 [1st Dept 2010]). The motion is denied.
Accordingly, it is
ORDERED that the motion by Defendant for summary judgment and to dismiss the Complaint on the grounds Plaintiffs claimed injuries do not satisfy the serious injury threshold under Insurance Law 5102 (d) is denied; 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 the Defendants with Notice of Entry.
This constitutes the Decision and Order of the Court.