Opinion
Index 16-617296
01-08-2020
ALICIA A. JAMES, Plaintiff, v. STEVEN TUCCIARONE and MARTIN P. TUCCIARONE, Defendants.
LEONICK LAW, PLLC Attorney for Plaintiff MARTYN & MARTYN Attorney for Defendants
Unpublished Opinion
MOTION DATE 6-4-19
ADJ. DATE 7-30-19
LEONICK LAW, PLLC Attorney for Plaintiff
MARTYN & MARTYN Attorney for Defendants
HON. SANFORD NEIL BERLAND, A.J.S.C.
Upon the following papers read on this motion for summary judgment: Notice of Motion and supporting papers by defendant, dated April 18, 2019; Answering Affidavits and supporting papers by plaintiff, dated July 18, 2019; and Replying Affidavits and supporting papers by defendant, dated July 24, 2019, it is
ORDERED that the motion by defendant Steven Tucciarone seeking summary judgment dismissing the complaint is granted to the extent indicated below and is otherwise denied.
Plaintiff Alicia James commenced this action to recover damages for injuries she allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Elwood Road and Clay Pitts Road in the Town of Huntington on November 7, 2015. It is alleged that the accident occurred when the vehicle operated by defendant Steven Tucciarone and owned by defendant Martin Tucciarone made a left turn directly into the path of the vehicle operated by plaintiff, striking the driver's side of plaintiff s vehicle. Plaintiffs vehicle was traveling northbound on Elwood Road, and defendants' vehicle was traveling southbound on Elwood Road. By her bill of particulars, plaintiff alleges that as a result of the collision, she sustained a series of physical injuries, including a tear in the lateral plantar plate of her right foot, internal scarring of her right foot and a concussion, as well as anxiety, depression and cognitive difficulties. Plaintiff further alleges that as a result of the injuries she sustained in the accident, she was incapacitated from her employment.
The action was discontinued as against defendant Martin Tucciarone pursuant to a stipulation of discontinuance dated April 16, 2018.
Defendant now moves for summary judgment on the basis that the injuries alleged to have been sustained by plaintiff as a result of the November 7, 2015 accident ("the accident") do not meet the "serious injury" threshold of Insurance Law § 5102 (d). In support of his motion, defendant submits copies of the pleadings, the transcript of plaintiffs deposition and the sworn medical reports of, respectively, Dr. Matthew Skolnick, Dr, Kishore Ranade and Dr. Sheldon Feit. At defendant's request, Dr. Skolnick conducted an orthopedic examination of plaintiff on October 8, 2018. Also at defendant's request, Dr. Ranade, performed a neurological review of plaintiff s medical records on December 3, 2018. In addition, Dr. Feit performed a radiological review of the magnetic resonance images ("MRI") films of plaintiffs right foot taken on March 8, 2016. Plaintiff opposes the motion on the basis that defendant has failed to make a prima facie showing of entitlement to judgment as a matter of law and that the evidence submitted in opposition to the motion demonstrates that as a result of the subject accident, she sustained injuries that fall within the "limitations of use" and the "90/180" categories of serious injury under the Insurance Law. In opposition to the motion, plaintiff submits the sworn medical reports of Dr, Mark Decker, Dr. Stacey Baptiste and Dr. Jason Feinberg.
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." The determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Porcano v. Lehman, 255 A.D.2d 430, 680 N.Y.S.2d 590 [2d Dept 1988]; Nolan v Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 [1984], affd N.Y.S.2d 681, 485 N.Y.S.2d 526 [2d Dept 1984]).
In order to recover under the "limitations of use" categories, a plaintiff must present objective medical evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration (see Magid v Lincoln Servs. Corp., 60 A.D.3d 1008, 877 N.Y.S.2d 127 [2d Dept 2009]; Laruffa v Yui Ming Lau, 32 A.D.3d 996, 821 N.Y.S.2d 642 [2d Dept 2006]; Cerisier v Thibiu, 29 A.D.3d 507, 815 N.Y.S.2d 140 [2d Dept 2006]; Meyers v Bobower Yeshiva Bnei Zion, 20 A.D.3d 456, 797 N.Y.S.2d 773 [2d Dept 2005]). 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 may also suffice (see Toure v Avis Rent A Car Systems, Inc., supra, Dufel v Green, supra). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]). Further, evidence of pain and discomfort alone, unsupported by credible medical evidence that diagnoses and identifies the injuries, is insufficient to sustain a finding of serious injury (see Scheer v Koubek, 70 N.Y.2d 678, 518 N.Y.S.2d 788 [1987]). Unsworn medical reports of a plaintiff s examining physician or chiropractor are insufficient to defeat a motion for summary judgment (see Grasso v Anegarmi, 79 N.Y.2d 813, 580 N.Y.S.2d 178 [1991]). However, a plaintiff may rely upon unsworn MR1 reports if they have been referred to by a defendant's examining expert (see Caulkins v Vicinanzo, 71 A.D.3d 1224, 895 N.Y.S.2d 600 [3dDept 2010]; Ayzen v Melendez, 299 A.D.2d 381, 749N.Y.S.2d 445 [2d Dept 2002]).
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, 79 N.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 plaintiff s 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 defendant has met this burden, 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, supra-, Tornabene v Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [4th Dept 2003]; Pagano v Kingsbury, supra). 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 plaintiff s 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. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]).
Here, defendant endeavors to establish, based upon plaintiff s deposition testimony and the affirmed reports of his medical witnesses, a prima face case that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) as a result of the accident (see Toure v Avis Rent A Car Sys., supra', Gaddy v Eyler, supra-, Davis-Hassan v Siad, 101 A.D.3d 932, 957 N.Y.S.2d 205 [2d Dept 2012]; Torres v Ozel, 92 A.D.3d 770, 938 N.Y.S.2d 469 [2d Dept 2012]). Thus, with respect to plaintiffs claims alleging physical injury meeting the statutory definition of serious injury, defendant offers, first, the report of his examining orthopedist, Dr. Skolnick, who states that as of the time of his examination of the plaintiff in October 2018, she exhibited full range of motion in her spine, no paraspinal spasms or tenderness upon palpation of the paraspinal muscles, no evidence of atrophy of the intrinsic muscles, normal sensation to light touch and a negative straight leg raising test. Dr. Skolnick further states in his report that his examination of plaintiffs ankles and feet revealed full range of motion in those areas and that there was no evidence of tenderness upon palpation or of soft tissue swelling and that sensation to light touch was normal. Based upon his review of plaintiff medical records and his physical examination of plaintiff, Dr. Skolnick opines that the strains to plaintiffs cervical and lumbar regions and the contusion to her right foot were correctly diagnosed and were causally related to the to the November 7, 2015 accident, that the treatment plaintiff received was appropriate and necessary, that there is evidence that plaintiff responded to the treatment she received with an objective functional gain, that the strains and contusion have resolved and that plaintiff requires no further physical therapy or orthopedic treatment for those conditions. Further, Dr. Skolnick states that based upon both the "available medical documentation" and his physical examination of plaintiff, he found "no orthopedic disability ... at this time" and that plaintiff "is capable of maintaining full employment without restrictions" and that "[t]here are no permanent residuals."
Consistent with the requirements of caselaw, Dr. Skolnick used a goniometer to test the ranges of motion in plaintiffs spine, ankles and feet, and compared his respective findings to the normal range of motion values for each region (see e.g. Cantave v Gelle, 60 A.D.3d 988, 877 N.Y.S.2d 129 [2d Dept 2009]; Staff v Yshua, 59 A.D.2d 614, 874 N.Y.S.2d 180 [2d Dept 2009]; Desulme v Stanya, 12 A.D.3d 557, 785 N.Y.S.2d 477 [2d Dept 2004]).
Defendant also offers the report Dr. Feit, his reviewing radiologist, who states that his review of the MR1 films taken of plaintiffs right foot reveals that there is no evidence of tendinopathy or ligamentous injury or fracture, and that there is a soft tissue mass within the second intermetatarsal interspace compatible with a neuroma. Dr. Feit further states in his report that plaintiff exhibits pre-existing degenerative changes in her right foot and that there are no abnormalities causally related to the accident.
Finally, defendant offers the report of his reviewing neurologist, Dr. Ranade, who opines that as plaintiff s medical records show that plaintiffs diagnoses of seizure disorder and anxiety disorder preceded the accident, those conditions are not causally related to the accident. Dr. Ranade further opines that notwithstanding plaintiff having been "given" a diagnosis of concussion, as plaintiff s neurologist's notes indicate that plaintiff experienced no tinnitus and no change in mental acuity following the accident and there is no record indicating that she lost consciousness, her medical records do not support a diagnosis of concussion as a result of the accident. However, although noting that plaintiff s "doctor has diagnosed her to have PTSD as a result of the injury of 11/07/15," Dr. Ranade offers no opinion with respect to causation, stating rather that he "will defer comment regarding causality of PTSD to the appropriate specialist.' Further, he states that he could not, "determine," based upon his review of plaintiff s medical records, whether plaintiff could "return to work with or without restrictions" and "whether [she] can return to full or modified duty."
Dr. Ranade also states in his report that he could not "determine," based upon his review of plaintiff s medical records, whether plaintiff could "return to work with or without restrictions" and "whether [she] can return to full or modified duty."
In addition to seeking to refute plaintiffs claims of physical injury or impairment meeting the statutory definition of serious injury, defendant also argues that plaintiff did not sustain an injury within the so-called "90/180" category of serious injury under the Insurance Law (see Pryce v Nelson, 124 A.D.3d 859, 2N.Y.S.3d214 [2d Dept 2015]; Knox v Lennihan, 65 A.D.3d 615, 884 N.Y.S.2d 171 [2d Dept 2009]; Rico v Figueroa, 48 ADOk3d 778, 853 N.Y.S.2d 129 [2d Dept 2008]). Defendant cites to plaintiff s testimony that she attended a baptism the day after the accident and a day later went out to locate her vehicle, which had been towed away from the accident site; that she did not receive "physical therapy" for the injuries she sustained in the accident; and that she still drives, attends family gatherings on Long Island and in her free time helps her mother with household chores and watches television, as showing that "plaintiff was not confined to her home or bed in the time frame immediately after this accident" and "does not qualify under the 90/180 category" of the Insurance Law.
With respect to the specific physical injuries alleged by plaintiff a tear in the lateral plantar plate of her right foot, internal scarring of her right foot and a concussion - defendant has made a prima facie showing that the plaintiff did not sustain a serious permanent physical injury as defined in Section 5102[d] of the Insurance Law. The burden of coming forward with evidence demonstrating the existence of triable issues of fact with respect to those alleged injuries and as to whether they meet the statutory definition of serious injury thus shifted to the plaintiff (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]). Specifically, to the extent plaintiff is claiming that she has suffered a significant permanent limitation of use of a body function or system as a result of any of these claimed injuries, she must must substantiate her complaint 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.3d407, 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 vNew 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). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, supra). 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 plaintiff s 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 ]). However, evidence of contemporaneous range of motion limitations is not a prerequisite to recovery (see Perl v Meher, supra', Paulino v Rodriguez, 91 A.D.3d 559, 937 N.Y.S.2d 198 [1st Dept 2012]).
With respect to those specific physical injuries, plaintiff has failed to sustain her burden of showing the existence of a triable issue of fact in opposition to defendant's prima facie showing that she did not sustain a serious physical injury within the permanent consequential limitation and significant limitation of use categories of Insurance Law § 5102 (d) as a result of the accident (see Carpriglione v Rivera, 83 A.D.3d 639, 919 N.Y.S.2d 882 [2d Dept 2011]; Heumann v JACO Transp., Inc., 82 A.D.3d 1046, 919N.Y.S.2d 198 [2d Dept 2011]; Posa v Guerrero, 77 A.D.3d 898, 911 N.Y.S.2d 82 [2d Dept 2010]). A 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 causally 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]). Although the affirmed podiatric medical report of the two podiatrists from whom she received treatment, Drs. Stacey Baptiste and Jason Feinberg, show that she sustained a right foot plantar ligament plate tear as a result of the subject accident, a tear without any evidence of continuing limitation does not constitute a serious injury and is insufficient to raise a triable issue (see Corporan v Erichsen, 148 A.D.3d 549, 49 N.Y.S.3d 678 [1st Dept 2017]). Moreover, although plaintiff received treatment for her right foot condition for more than a year after the accident, her last such treatment was in December 2016, and she has failed to submit any objective admissible medical proof demonstrating that she continues to have range of motion deficits or qualitative limitations based upon a recent examination (See Sukalic v Ozone, 136 A.D.3d 1018, 26 N.Y.S.3d 188 [2d Dept 2016]; Estrella v GEICO Ins. Co., 102 A.D.3d 730. 959 N.Y.S.2d 210 [2d Dept 2013; Nesci v Romanelli, 74 A.D.3d 765, 902 N.Y.S.2d 172 [2d Dept 2010]; see generally Ramkumar v Grand Style Transp. Enters., Inc., 22 N.Y.3d 905, 976 N.Y.S.2d 1 [2013]; Pommells v Perez, supra, David v Caceres, 96 A.D.3d 990, 947 N.Y.S.2d 159 [2d Dept 2012]). Indeed, plaintiff testified at her deposition that she does not have any current limitations with her right foot. Thus, Drs. Baptiste and Feinberg, absent findings from a recent examination, cannot substantiate the extent or degree of the further duration of the limitations in plaintiffs right foot caused by the claimed injury (see Wong v Cruz, 140 A.D.3d 860, 32 N.Y.S.3d 641 [2d Dept 2016]; Schilling v Labrador, 136A.D.3d 884, 25 N.Y.S.3d331 [2d Dept 2016]; Bacon v Bostany, 104 A.D.3d 625, 960 NYS2D 190 [2d Dept]). Similarly, although the affirmed medical report of Dr. Mark Decker, plaintiffs examining radiologist, states that there is a retracted lateral tear of the second plantar plate and ill-defined scarring in plaintiff s right foot, as well as minor degenerative changes in the metatarsal joints of the right foot, his report is based upon an MR1 taken on March 8, 2016 and does not address the progression or permanency, vel non, of the conditions identified in his report (see Ranford v Tini's Tree &Lawn Serv., Inc., 71 A.D.3d 973, 897 N.Y.S.2d 245 [2d Dept 2010]; Depena v Sylla, 63 A.D.3d 504, 880 N.Y.S.2d 641 [1st Dept 2009]; Sorto v Morales, 55 A.D.3d 718, 868 N.Y.S.2d 67 [2d Dept 2008]).
However, with respect to plaintiffs claims of post-traumatic stress disorder and under the 90/180-day category of serious injury, defendant has failed to make a prima facie showing of entitlement to judgment in his favor as a matter of law. It is well settled that '""a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury'" within the meaning of Insurance Law § 5102 (d)" (Kranis v Biederbeck, 83 A.D.3d 903 [2d Dept 2011], quoting Villeda v Cassas, 56 A.D.3d 762. 762 [2d Dept 2008], quoting Taranto v McCaffrey, 40 A.D.3d 626, 627 [2d Dept 2007]), provided such injury is "serious and verifiable, and ... established by objective medical evidence" (Kranis v Biederbeck, supra, 83 A.D.3d at 903. See generally Chapman v Capoccia, 283 A.D.2d 798, 799 [3d Dept 2001], citing Sellitto v. Casey, 268 A.D.2d 753 [3d Dept 2000 ]; Spinrad v. Gasser, 235 A.D.2d 687 [3d Dept 1997]; Wyman by Wyman v, Giarnella & Son, 170 A.D.2d 229 [1st Dept 1991]; Quaglio v. Tomaselli, 99 A.D.2d 487 [2d Dept 1984]; and Arno v. Kennedy, 88 A.D.2d 754 [4th Dept 1982] (every judicial department "recognizes that an emotional injury, causally related to an automobile accident, can constitute a serious injury sufficient to maintain a cause of action to recover damages tor noneconomic loss)).
Although defendant cites to plaintiffs testimony that she attended a baptism and retrieved her damaged car shortly after the accident, drives and at some unspecified subsequent time assisted her mother with housework and attended family events (plaintiff was deposed in July 2018, more than two-and-a-half years after the accident), plaintiff also testified that following the accident, she ceased her employment as a bakery clerk at King Kullen and did not begin working again until the spring of 2018. Although defendant chose not to inquire further into plaintiff s cessation of employment in the aftermath of the accident, plaintiff did testify that within one week of the accident, she was diagnosed by her primary care physician as suffering from post-traumatic stress disorder as a result of the accident, that she was referred to a therapist for PTSD treatment, that she began attending therapy for her PTSD "a few months after the accident, that those therapy sessions continued for eight months, and that although she did not have any treatment sessions scheduled at the time of her deposition, she continued to be a patient of the same neurologist who had long been treating her for her seizure disorder and, at times, for depression and whose records document plaintiffs post-accident PTSD diagnosis. Moreover, as recounted above. Dr. Ranade, defendant's own reviewing neurologist, acknowledges that plaintiff has been diagnosed as suffering from PTSD as a result of the accident, and he not only declined to offer any contrary opinion, he also declined to opine on whether plaintiff could "return to work with or without restrictions." Further, plaintiff also testified, and the medical records of Drs. Baptiste and Feinberg and the report of Dr. Decker show, that following the accident, she sought podiatric treatment for the painful condition her right foot, was found to have sustained, among other things, a right foot plantar ligament plate tear as a result of the subject accident, was given insoles for her shoes and a cortisone shot in her right foot and continued receiving podiatric treatment for the condition of her right foot for approximately one year after that. Thus, even if it were somehow possible to find that the defendant, even if only by his attorney's ipse dixit, had made out a prima facie case in his favor with respect to plaintiffs claims based upon post-traumatic stress syndrome and under the 90/180-day category of serious injury of Insurance Law § 5102[d], the parties' submissions amply demonstrate that there are triable issues of fact with respect to those claims, necessitating the denial of defendant's motion for summary judgment to that extent (see generally Manganella v Card Trans Corp., 305 A.D.2d 378 [2d Dept 2003]).
Accordingly, and for the reasons stated above, defendant's motion for summary judgment is granted in part and is otherwise denied.
The foregoing constitutes the decision and order of the court.