Opinion
Index No. 708063/18 Seq. No. 1
06-22-2020
CALICA HEWITT, Plaintiff, v. NIRMAL SINGH and GURPINDER SINGH, Defendants.
Unpublished Opinion
Robert I. Caloras, J.
The following papers numbered E14-E25, E29 read on this motion by Defendants for an order pursuant to CPLR 3212 granting them summary judgment and dismissing Plaintiff s Complaint upon the grounds that there are no triable issues of fact, in that Plaintiff cannot meet the serious injury threshold requirement as mandated by Insurance Law Sections 5104(a) and 5102(d).
| PAPERS NUMBERED | |
| Notice of Motion-Affirmations-Exhibits................................... | E16-E28 |
| Affirmation in Opposition-Exhibits.................................... | E30-E37 |
| Reply Affirmation......................................................... | E38 |
| Stipulation.................................................................. | E39 |
Upon the foregoing papers, it is ordered that Defendant s motion is granted for the following reasons:
This is an action to recover damages for personal injuries Plaintiff allegedly sustained as a result of a motor vehicle accident, which occurred on February 19, 2018. In the Bill of Particulars, Plaintiff stated that she is not seeking damages for "lost wages and time", but does claim, that as a result of the accident she sustained, inter alia, the following injuries:
Left Shoulder: bursal surface tear of the posterior distal infraaspinatus tendon (MRI confirmed); rotator cuff tear tendinitis and bursitis (MRI confirmed); labral tear; synovitis; impingement syndrome; and an arthroscopic rotator cuff repair, subacromial decompression with acromioplasty, extensive debridement and synovectomy on her left shoulder on May 17, 2018, which has resulted in four (4) keloidal scars measuring 'A inch to % inch;
Cervical Spine: aggravation and exacerbation of a previously dormant injury with decreased range of motion; disc herniations at C2-C3 and C6-C7 with thecal sac impingement; disc herniations at C3-C4 and C4-C5 with near cord
impingement; disc bulge at C7-T1 and C5-C6; and a cervical epidural steroid injection at C4-C5 level, on May 4, 2018;
Lumbar Spine: aggravation and exacerbation of a previously dormant injury with decreased range of motion; disc herniation at L5-S; annular tear at L4-L5; disc bulge at L3-L4; and lumbar epidural steroid injection at L5-S1 level with IVS on June 15, 2018;
Thoracic Spine: disc herniation at T1-T2, T2-T4, T5-T6, and T9-T10.
Defendants now move for summary judgment, dismissing the Complaint, alleging that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law 5104(a) and 5102(d). Defendants have submitted, among other things, the following: an attorney affirmation; Summons and Verified Complaint; Verified Bill of Particulars; Verified Answer; Plaintiffs deposition transcript; affirmation from Roger Chirurgi, .D.; affirmation from Thomas P. Nipper, M.D., F.A.C.S.; affirmation from Eric L. Cantos, M.D.; police report; and New York - Presbyterian Emergency Room records.
At Defendant's request, Dr. Chirurgi, Board Certified in Emergency Medicine, reviewed the police report. EMS report, and the Emergency Department report. DR. Chirurgi noted that the Emergency Room records found "MSK/EXT: no gross deformities; full range of motion; no lower ext edema". Based upon his review of these records, Dr. Chirurgi opined that the plaintiff did not sustain any significant injury as a result of the motor vehicle accident.
At Defendant's request, Dr. Nipper, Diplomate American Board of Orthopedic Surgery, examined the plaintiff on July 18, 2019. Using a goniometer, Dr. Nipper found that Plaintiffs cervical spine, thoracic spine, lumbar spine, and left shoulder had normal range of motion. Dr. Nipper found that Plaintiffs injuries have fully resolved. Although the MRI report of Plaintiff s left shoulder from All County, LLC indicated moderate rotator cuff tendinitis and bursitis with associated bursal surface partial thickness posterior distal infraspinatus tendon tear, joint effusion, herniation, and a bulge, Dr. Nipper determined that these findings are consistent with degenerative changes.
At Defendant's request, Dr. Cantos, a Radiologist, examined the MRIs taken of Plaintiffs left shoulder, lumbar spine, and thoracic spine. Based upon his review of the MRI of Plaintiff s left shoulder, Dr. Cantos found subacromial narrowing and degenerative changes with rotator cuff impingement; associated changes of rotator cuff tendinosis/tendinopathy; bursitis; and a small partial tear distal rotator cuff. Dr. Cantos also noted that Plaintiff "is felt to have had an unrelated and pre-existent degenerative condition related to impingement, prior to the accident occurrence". Based upon his review of Plaintiffs MRI of her lumbar spine, Dr. Cantos found disc herniations and/or protrusions at L4-5 and L5-S1 with degenerative changes. Dr. Cantos further noted that these herniations "reflect a pre-existent and unrelated degenerative condition relative to the accident". Finally, based upon his review of Plaintiffs MRI of her thoracic spine, Dr. Cantos found disc bulges and mild degenerative changes, likely attributable to aging.
At Plaintiffs deposition, she testified that she is not making a lost earnings claim and she stopped receiving medical treatment five to six months after the accident. Plaintiff further testified that there are no activities that she cannot perform due to this accident.
Based upon the foregoing, Defendants argue that Plaintiffs alleged injuries were not sustained as a result of this accident, she did not sustain trauma, and her alleged injuries do not rise to the level of impairment sufficient to qualify under any of the categories of the statute.
In opposition, Plaintiff has submitted the following: New York Presbyterian Emergency Room records; Metro Pain Specialists Physical Therapy and Acupuncture records; All County, LLC Diagnostic Radiology's records; affirmation from Aron Rovner, M.D.; an affirmation from Patricia Kelly, M.D., and Plaintiffs affidavit. Plaintiff argues that Defendants have failed to establish their prima facie burden of demonstrating she has not sustained a serious injury as a result of this accident. In the alternative, Plaintiff argues she has submitted sufficient proof that raises issues of fact as to whether she sustained a serious injury under the statute as a result of the accident.
In his report, dated May 17, 2018, Dr. Rovner, Board Certified in Orthopedc Surgery and Fellowship Trained in Spine Surgery, stated that his range of motion testing on Plaintiffs left shoulder revealed the following: flexion: 130 degrees (normal 180 degrees); abduction: 110 degrees (normal 180 degrees); internal rotation: 30 degrees (normal 45 degrees); and external rotation: 40 degrees (normal 45 degrees). Dr. Rover opined that Plaintiffs severe left shoulder pain is causally related to the subject motor vehicle accident, and recommended Plaintiff undergo left shoulder arthroscopy. In his Operative Report, he stated that on May 17, 2018, he performed a left shoulder arthroscopy on Plaintiff. Dr. Rovner's post-operative diagnosis of Plaintiff was left shoulder labral tear, full-thickness rotator cuff tear, impingement syndrome, synovitis, and bursitis.
In her affirmation, Dr. Kelly stated she initially examined Plaintiff two days after the accident. Thereafter, Plaintiff went for physical therapy and acupuncture treatments for five months, three to four times per week. Dr. Kelly stated that Plaintiff stopped receiving treatment, because additional treatment would have been palliative in nature. Dr. Kelly next examined Plaintiff on February 3, 2020, at which time she conducted range of motion testing using a goniometer on Plaintiff, which showed decreased range of motion in Plaintiffs left shoulder, cervical spine, and lumbrosacral spine. Based upon this exam, Dr. Kelly opined that these injuries were caused by the subject accident, and are permanent in nature.
Plaintiff has also submitted an affidavit, notarized on February 11, 2020, wherein she stated, among other things, as a result of the subject accident she is unable to perform her daily activities including, but not limited to, taking care of her children as she used to, household chores, lifting her arm completely over her head, washing her hair, gong to the grocery store, walking long distances, and lifting heavy objects. Consequently, Plaintiff argues that as a result of the subject accident she has sustained a 90/180 injury.
In reply, Defendants argue that they have established their prima facie burden through the submission of affirmed medical reports showing that Plaintiff did not suffer disabilities or impairments from the subject accident. Defendants further argue, among other things, through the submission of Plaintiff s deposition transcript they established that she did not sustain a 90-180 injury, and her affidavit merely raises feigned issues of fact. Defendants further argue the records/reports Plaintiff submitted Metro Pain Specialists Physical Therapy and Acupuncture, All County LLC, and ENS Medical PC are not admissible pursuant to CPLR 4518(a) because they are nether sworn to nor affirmed.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]). Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
A Defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred by 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., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955 [1992]; Beltran v Powow Limo, Inc., 98 A.D.3d 1070 [2d Dept. 2012]). When such a Defendant's motion relies upon 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 (see Brite v Miller, 82 A.D.3d 811 [2d Dept. 2011]; Damas v Valdes, 84 A.D.3d 87 [2d Dept. 2011], citing Pagano v Kingsbury, 182 A.D.2d 268 [2d Dept. 1992]). A defendant also may establish entitlement to summary judgment using the Plaintiffs deposition testimony (see Beltran v Powow Limo, Inc., supra; Bamundo v Fiero, 88 A.D.3d 831 [2d Dept. 2011]; McIntosh v O'Brien, 69 A.D.3d 585 [2d Dept. 2010]). Once a Defendant meets this burden, the Plaintiff must present proof, in admissible form, which creates a material issue of fact (see Gaddy v Eyler, supra; Zuckerman v City of New York, supra; Beltran v Powow Limo, Inc., supra).
Here, the Court finds that the Defendants demonstrated their prima facie showing Plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra). Consequently, the burden shifts to the Plaintiff to come forward with evidence to overcome the Defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law (see, Gaddy v Eyler, supra; Sin v Singh, 74 A.D.3d 1320 [2d Dept. 2010]).
In this regard, the Court finds Plaintiff has failed to raise a triable issue of fact. The records and reports Plaintiff submitted from Metro Pain Specialists Physical Therapy and Acupuncture records, and All County, LLC Diagnostic Radiology were neither sworn to nor affirmed pursuant to CPLR 2106. Consequently, these records are not evidentiary proof in admissible form (see Grasso v Angerami, 79 N.Y.2d 813 [1991]; Lozusko v Miller, 72 A.D.3d 908 [2d Dept. 2010]; Singh v Mohamed, 54 A.D.3d 933 [2d Dept. 2008]). As such, Plaintiff failed to submit the requisite contemporaneous quantitative assessment of range-of-motion limitations based on objective testing (see Lopez v Simpson, 39 A.D.3d 420 [1st Dept. 2017]). Although Dr. Kelly stated in her affirmation, dated February 3, 2020, that she began treating Plaintiff two days after the accident, she did not include any contemporaneous quantitative findings related to the accident in said report. In addition, Dr. Rovner's report was issued in May 2018, and is also not contemporaneous to the accident. The Court also finds that Plaintiffs affidavit alleged feigned issues of fact designed to avoid the consequences of her earlier deposition testimony with respect to her claims of a 90/180 injury and is insufficient to meet her prima facie burden (Byrd v Brooklyn 46 Realty, LLC, 129 A.D.3d 882[2d Dept. 2015]). Moreover, contrary to Plaintiff s claims, the First Department provided in Elias v Mahlah, 58 A.D.3d 434 (1st Dept. 2009) that a Defendant may establish his or her entitlement to summary judgment under the 90/180 category" . . . without medical evidence by citing other evidence, such as the plaintiffs own deposition testimony or records demonstrating that he or she was not prevented from performing all of the substantial activities constituting customary daily activities for the prescribed period" (id.). As such, Plaintiffs testimony and her allegations in the Bill of Particulars fail to allege she sustained a 90/180 injury as a result of the subject accident. Accordingly, the motion is granted, and the Complaint is dismissed.