Opinion
Index No. 525999/2019 Mot. Cal. No. 25 Mot. Seq. No. 4
03-05-2024
SOHAG HOSEN, Plaintiff, v. EGLISE BAPTISTE CALVAIRE INTERNATIONAL, INC. and GESNER BIENNE, Defendants.
Unpublished Opinion
Mot Date: 1/24/2024
PRESENT: HON. RICHARD J. MONTELIONE, J.S.C.
ORDER
Richard J. Montelione J.
The following papers were read on this motion pursuant to CPLR 2219(a):
Papers
Numbered
Defendants' Motioi1 for Summary Judgment, dated December 6, 2022; Attorney Affirmation of Matthew Kelly, Esq. affirmed on December 6,. 2022; Statement of Material Facts;. Exhibits A-R ...........................
63-83
Plaintiff's Attorney Affirmation of Anthony Mangona, Esq., in Opposition, affirmed on November I, 2023: Statement of Material Facts; Memorandum of Law; Exhibits A-Q........................
88-107
Defendants' Attorney Affirmation of Matthew Kelly, Esq., in Reply, affim1ed on January 22,.2024 ............
108
Plaintiff commenced this action on November 27, 2019, alleging that he sustained serious injuries to his right knee, right shoulder, lumbar spine, and cervical spine, as a result of a motor vehicle accident that occurred on September 5, 2019. Issue was joined by defendants interposing an answer on January 14, 2020. Defendants move for summary judgment pursuant to CPLR § 3212 on the grounds that plaintiff fails to meet the serious injury threshold requirement mandated by Insurance Law § 5102(d).
Pursuant to Insurance Law 5104(a), "in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious; injury." "In seeking summary judgment on the issue of whether the serious injury threshold has been satisfied the burden is initially on a defendant to establish as a matter of law that the plaintiff did not suffera 'serious injury."' Mines v. Capital Dis. Transp. Authority, 280 A.D.2d 768, 769 (3d Dep't 2001) quoting Anderson v. Persll, 272 A.D. 733 (3d Dep't 2000). 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 tor not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
Defendants seek summary judgment on the basis that plaintiff did not sustain a serious injury as defined by Insurance Law§ 5102(d) as a result of the subject motor vehicle accident which occurred on September 5, 2019. Plaintiff was in a previous motor vehicle accident which occurred on July 6, 2016, and defendants argue that any injuries are preexisting and were caused by the 2016 motor vehicle accident.
Defendants submitted a radiology report from Dr. Craig H. Sherman, dated June 21, 2022 and affirmed under penalty of perjury (NYSCEF #81). Dr. Sherman compared pre-accident MRIs. taken after the July 6. 2016 motor Vehicle accident, with post-accident MRIS. taken after the subject September 5, 2019 accident, Dr. Sherman opined that the MRIs taken before the subject motor vehicle accident showed chronic degeneration of the right shoulder, right knee, cervical spine, and lumbar spine and that any injuries to these body parts predate the September 5, 2019 motor vehicle accident and were not casually related to the subject motor vehicle accident. Dr. Sherman reviewed MRIs of plaintiff:s right shoulder taken on July 18,2016 and on January 22, 2020Yand found chronic degeneration and tearing of the anterior glenoid labrum in both MRIs.
Defendants also submitted medical reports from Dr. William Kulak and Dr. Lourdes P. Esteban, both affirmed under penalties of perjury. While both doctors performed range of motion tests, Dr. Kulak performed the examination visually, and Dr. Esteban's report is unclear as to whether me range of motion tests were performed with a goniometer or visually. Accordingly, these reports "failed to identify the objective tests that were utilized to measure the plaintiffs ranges of motion, and thus did not support the conclusion that the plaintiff suffered no limitations as a result of the accident.' Cho v. Demelo, 175 A.D.3d 1235, 1237,108 N.Y.S.3d 159, 160 (2d Dep't 2019).
However, defendants still met their prima facie burden of showing that plaintiff did not sustain a "serious injury" as defined by Insurance Law § 5102(d) based on Dr. Sherman's report comparing pre-accident MRIs With post-accident MRIs and finding that plaintiffs injuries are degenerative in nature and existed prior to the 2019 accident. Union v. Nawaz, 62 A.D.3d 434, 439, 879 N.Y.S.2d 82 (2009), qff'd 14 N.Y.3d 821, 926 N.E.2d 593 (1st Dep't 2010) ("Defendants, did shift the burden, however, on the question of whether the injuries to plaintiffs cervical spine and left knee were caused by the accident. This they accomplished by submitting the affirmation of Dr. Eisenstadt, to the extent that it asserted that the abnormalities appearing on the MRIs of the cervical spine and left knee were degenerative in nature and preexisted the accident').
Plaintiff submitted medical records from Dr. Igor Stiler, admissible as a certified business records (NSYGEF #96.). Dr. Stiler examined plaintiff on September 12, 2019, September 30, 2019, October 28, 2019, January 27, 2020, March 9, 2020, and June 16, 2020. Each time, Dr. Stiler measured plaintiff s range of motion with a goniometer and found limited range of motion. However, Dr. Stiler's conclusion with respect to causation is based on speculation as the report states, "Mr. Sohag Hosen has informed me that he attributes his symptoms to a work injury. His date of onset was 9/5/2019. Overall, Mr. Hosen is of the opinion that his complaint has stayed about the same since the onset" This, coupled With the fact that that Dr. Stiler did not review plaintiffs medical records from the previous motor vehicle accident, renders all comments regarding causation speculative. Vidor v. Ddvila, 37 A.D.3d 826, 826-27, 830 N;Y.S.2d 772, 773 (2'd Dept't 2007). Similarly, the reports submitted by Dr. Charles Kaplan (NYSCEDF #106) and Dr. Daniel Wild (NYSCEF #107) have no probative value as to causation as they did not review or discuss plaintiff s medical records from the 2016 accident. Id., Moreover, the report submitted by Dr. Wild states, "[t]he claimant denied being involved in any prior motor vehicle or workers; compensation accidents or sustaining any prior injuries," rendering his determination as to causation speculative.
Plaintiff also submitted a medical report from Dr. Dov J. Berkowitz, dated January 11, 2024 and affirmed under penalty of perjury (NSYCEF #91), and records from Dr. Berkowtiz's office, admissible as a certified business records (NYSCEF #97, 9 &, 100). Dr. Berkowitz examined plaintiff on September 16, 2019, October 30, 2019, December 23, 2019, February- 10, 2020 and March 10, 2021. With the use of a goniometer, Dr. Berkowitz found a limited range of motion of plaintiff right knee on September 16,2019 and a limited range of motion to plaintiff s right shoulder on December 23, 2019. Dr. Berkowitz also found tears to plaintiffs right shoulder and performed surgery on plaintiffs right shoulder on March 10, 2201. With respect to causation, Dr. Berkowitz states:
It is my opinion within a reasonable degree of medical Certainty that Mr. Hosen's injuries to his right shoulder and right knee were traumatically induced and not the result of any preexisting degenerative condition. The complaints of pain made by Mr. Hosen following his September 5, 2019 motor vehicle accident are
consistent with traumatically induced injuries. More specifically, given the lack of subjective pain complaints by Mr. Hosen prior to his Septembers, 2019 motor vehicle accident, the fact he had returned to work full time, the clinical findings of Dr. Stiler and myself, the MRI reports, it is my opinion within a reasonable degree of medical certainty that the injuries to Mr. Hosen's right shoulder and right knee were traumatically induced by the September 5, 2019 motor vehicle accident.
I disagree with the conclusory statements made by Dr. Sherman and Dr. Kulak that all of Mr. Hosen's injuries in his right shoulder and right knee were: degenerative conditions, pre-existing, and not caused by trauma. Even if degenerative conditions were present in Mr. Hosen's right shoulder and fight knee prior to the subject accident, any such condition would have been asymptomatic based Upon my treatment of Mr. Hosen and review of Mr. Hosen's medical history. It is my opinion within a reasonable degree of medical certainty that any asymptomatic condition in Mr. Hosen's right shoulder and right knee was triggered by the trauma he suffered as a result of the September 5, 2019 motor vehicle accident.
These statements with respect to causation are conclusory and speculative. Dr. Berkowitz failed to set forth any objective evidence to establish that plaintiffs injuries and tears, which were present in the pre-accident medical records and MRIs from 2016, were caused by or exacerbated: by the subject motor vehicle accident. McNeil v. Dixon, 9 A.D.3d 481, 483, 780 N.Y.S,2d 635, 637 (2d Dep't 2004) (holding that plaintiff must submit objective evidence "by which the claimed aggravation of injuries sustained in the previous accident or new injuries could be measured"); Falkner v. Hand, 61 A.D.3d 1153, 1155, 876 N.Y.S.2d 747 (3d Dep't 2009) (holding that plaintiff failed to raise a question of fact where plaintiff s experts failed to fully consider and distinguish plaintiff s condition prior to each accident from her condition after that accident, as well as plaintiff s failure to, submit objective medical evidence of an exacerbation caused by any of the accidents); Seck v. Minigreen Hacking Corp., 53 A.D M 608, 609, 863 N.Y.S.2d 218 (2d Dep't 2008). Nor does Dr. Berkowitz provide objective medical evidence that the injuries are not degenerative. See Reyes v. Esquilin, 54 A.D3d 615, 866 N.Y.S.2d 4 (1st Dep't 2008).
Additionally, while Dr. Berkowtiz specifically states that on February 10, 2020 he reviewed the results of plaintiff s right shoulder MRI performed on January 22, 2020, taken after the subject accident, he is silent as to whether he reviewed the medical records and MRIs taken after the 2016 accident. See Vidor v. Davila, 37 A.D.3d 826, 826-27. 830 N.Y.S.2d 772, 773 (2d Dep't 2007). Thus, Dr. Berkowitz findings that plaintiffs injuries were caused by the subject accident are speculative and conclusory. See Id.; see also Seek, 53 A.D.3d 608 at 609, 863 N.Y.S.2d 218.
Defendants also move for summary judgment under the 90/180-day category', arguing, inter alia, that because plaintiff cannot establish causation, defendants are entitled to summary judgment under the 90/180-day category. Plaintiffs "deficiency of evidence as to causation also precludes recovery under the 90/180-day category for injuries allegedly sustained in the second accident[.]" Falkner, 61 A.D.3d 1153 at 1155, 876 N.Y.S.2d 747; see also Reyes v. Esquilin, 54 A.D.3d 615, 866 N.Y.S.2d 4 (1st Dep't 2008).
Based on the foregoing, it is
ORDERED that defendants' motion for summary judgment is GRANTED in its entirety, and the case is dismissed.
This constitutes the decision and order of the court.