Opinion
19507/06.
Decided April 19, 2010.
Plaintiffs Boris Knokhinov and Irina Tomachova were represented by Georgette Hamboussi, Esq. of the Law Offices of Vel Belushin, P.C.
Defendant Lashawn Murray was represented by Andrea E. Ferruci, Esq. of Picciano Scahill, P.C.
Where, on a "serious injury" threshold motion, the defendant submits the reports of examining doctors who specify different standards for what is "normal" on range-of-motion testing, and the findings of one of the doctors would not be "normal" upon application of the stated standard of the other doctor, has the defendant made a prima facie showing?
Defendant Lashawn Murray moves for an order, pursuant to CPLR 3212, dismissing the Verified Complaint of plaintiffs Boris Knokhinov and Irina Tomachova, on the grounds that neither Plaintiff sustained a "serious injury" within the meaning of Insurance Law § 5102 (d) as a result of the June 29, 2003 accident. Each Plaintiff alleges soft tissue injuries to the cervical spine and lumbar spine that fall within the "permanent consequential limitation of use" and "significant limitation of use" categories of "serious injury," among others.
Specifically, with respect to plaintiff Boris Knokhinov, the Verified Bill of Particulars alleges, among other things, that an MRI of his cervical spine revealed "[a]t C3-4, C4-5 and C5-C6, loss of nuclear signal and disc herniation with ventral impingement on thecal sac at each level;" and that an MRI of his lumbosacral spine revealed "[a]t L3-4, L4-5 and L5-S1, loss of nuclear signal and disc herniation with ventral impingement on thecal sac at each level." With respect to plaintiff Irina Tomachova, the Verified Bill of Particulars alleges, among other things, that an MRI of her cervical spine revealed "[a]t C3-4, disc herniation with ventral impingement on thecal sac," and "[a]t C5-C6, disc bulging with ventral impingement on thecal sac"; and that an MRI of her lumbosacral spine revealed "[a]t L4-5 and L5-S1, loss of nuclear signal and disc herniation with ventral impingement on thecal sac at each level."
In support of his motion, Defendant submits the affirmed reports of orthopedist Jay Nathan, M.D., who examined plaintiff Boris Knokhinov on August 25, 2008, and examined plaintiff Irina Tomachova on September 27, 2008; neurologist Richard Lechtenberg, M.D., who examined plaintiff Boris on August 31, 2008, and examined plaintiff Irina on October 13, 2008; and of radiologist Melissa Sapan Cohn, M.D., who reviewed MRI studies of plaintiff Boris's lumbosacral spine made on March 29, 2003, i.e., prior to the subject accident, and the report of another radiologist on review of MRI studies made on July 29, 2003. Since Dr. Cohn did not review the films of the July 2003 studies, and states, "Obviously, without having the films, it is impossible to confirm [the] findings" described in the other radiologist's report, the Court gives Dr. Cohn's report no determinative probative value.
What are of determinative probative value on this motion are the reports of Drs. Nathan and Lechtenberg with respect to range-of-motion testing of each Plaintiff's cervical and lumbar spines. Except for flexion of plaintiff Boris Knokhinov's lumbar spine, where each doctor finds a loss of range of motion — Dr. Nathan finds 80 degrees compared to "normal" of 90 degrees, and Dr. Lechtenberg finds 55 degrees compared to "normal" of 60 degrees — each doctor reports finding "normal" range of motion for both Plaintiffs in all tested planes of the cervical spine and lumbar spine. In certain significant respects, however, when the findings reported by one doctor are assessed by application of the standard of "normal" stated by the other, the reports present "contradictory proof" ( see Dettori v Molzon, 306 AD2d 308, 309 [2d Dept 2003].)
Specifically, as to plaintiff Boris, Dr. Nathan reports finding 45 degrees on flexion of his cervical spine, whereas Dr. Lechtenberg says 50 degrees is "normal"; and Dr. Nathan finds 45 degrees on extension of the cervical spine, whereas Dr. Lechtenberg says 60 degrees is "normal." On the other hand, Dr. Lechtenberg reports finding 55 degrees on flexion of Plaintiff's lumbar spine, whereas Dr. Nathan says 90 degrees is "normal"; and Dr. Lechtenberg finds 25 degrees on extension and lateral bending of the lumbar spine, whereas Dr. Nathan says 30 degrees is "normal."
As to plaintiff Irina, Dr. Nathan reports finding 45 degrees on flexion of her cervical spine, whereas Dr. Lechtenberg says 50 degrees is "normal;" and Dr. Nathan finds 45 degrees on extension of the cervical spine, whereas Dr. Lectenberg says 60 degrees is "normal." On the other hand, Dr. Lechtenberg reports finding 60 degrees on flexion of Plaintiff's lumbar spine, whereas Dr. Nathan says 90 degrees is "normal"; and Dr. Lechtenberg finds 25 degrees on extension and lateral bending of the lumbar spine, whereas Dr. Nathan says 30 degrees is "normal."
The Court must note that, with one exception, both Dr. Nathan and Dr. Lechtenberg report identical range-of-motion findings for both Plaintiffs, demonstrating a remarkable degree of compatibility between the Plaintiffs. The exception is flexion of the lumbar spine; Dr. Nathan reports 80 degrees for Boris and 90 degrees for Irina; Dr. Lechtenberg reports 55 degrees for Boris and 60 degrees for Irina. As noted previously, both doctors report a deficit on flexion of Boris's lumbar spine on application of the doctor's own standard of "normal," which might itself warrant denial of the motion as to Boris. ( See Ortiz v S A Taxi Corp., 68 AD3d 734, 735 [2d Dept 2009]; Buono v Sarnes , 66 AD3d 809 , 810 [2d Dept 2009].)
Neither Dr. Nathan nor Dr. Lechtenberg states that either Plaintiff sustained a prior injury to the cervical spine or lumbar spine, or that either Plaintiff suffers from degeneration of the structures of the cervical spine or lumbar spine. Although Dr. Cohn, the radiologist who reviewed the MRI studies of Boris's lumbar spine made prior to the subject accident, reports a "pre-existing condition of the lumbar spine," neither Dr. Nathan nor Dr. Lechtenberg ascribes the deficit he found on flexion of Plaintiff's lumbar spine to any pre-existing condition.
At least in the Second Department, where a plaintiff alleges soft-tissue injury to the spine, range-of-motion testing has become the linchpin of "serious injury." Both the defendant who seeks to make a prima facie showing, and the plaintiff who attempts to raise a triable issue, must provide quantitative, i.e. numerical, range-of-motion findings, and compare those findings to "normal." ( See Chiara v Dernago, ___ AD3d ___, 2010 NY Slip Op 915 [2d Dept, Feb 9, 2010]; Knopf v Sinetar , 69 AD3d 809 , 810 [2d Dept 2010]; Wallace v Adam Rental Transp., Inc ., 68 AD3d 857 , 858 [2d Dept 2009]; Spanos v Harrison , 67 AD3d 893 , 893-94 [2d Dept 2009]; McKenzie v Redl , 47 AD3d 775 , 776-77 [2d Dept 2008].) "Absent such a comparative quantification of . . . findings, it cannot be concluded that the range of motion in the plaintiff's cervical and lumbar spine was normal, or that any limitations were mild, minor, or slight as to be considered insignificant within the meaning of the no-fault statute." ( Id. at 777.)
The issue raised by the reports submitted on this motion are hardly unique in this Court's experience, nor is it unique to Kings County. ( See Joseph v Hummel, 21 Misc 3d 1105[A], 2008 NY Slip Op 51975 [U] [Sup Ct, Queens County 2008].) The issue has not been addressed directly or clearly by the Second Department, but a recent split decision indicates that there is some disagreement about its resolution.
In Layne v Drouillard ( 65 AD3d 1197 [2d Dept 2009]), the panel split 3-2 on whether the defendants met their prima facie burden. With three sentences, the three-judge majority concluded that the burden was met:
"The defendants' examining doctors set forth, in their affirmed medical reports, that the plaintiff had a full range of motion in his cervical and lumbar spine based on objective range of motion tests, wherein the numerical findings were compared to what is normal. In addition, the defendants submitted deposition testimony of the plaintiff showing that the plaintiff resumed his duties as a New York City Police Officer, passed medical and physical examinations, and attended the police academy to become a police officer in another jurisdiction. During this time, the plaintiff engaged in rigorous activities which included running, sit-ups, and push-ups." ( Id. at 1197-98.)
The two-judge minority disagreed. The dissent noted that one of the defendants' doctors "found that the plaintiff had a lateral range of motion in his lumbar spine of 45 degrees and that 45 degrees was normal," whereas another of defendants' doctors "found that the plaintiff had a range of motion of 25 degrees in his lumbar spine and that 25 degrees was normal." ( See id. at 1198 [Spolzino, J. and Angiolillo, J., dissenting.) As the dissent saw it, "the defendant's [ sic] experts agreed only on the conclusion that the plaintiff's range of motion was normal, and "[a] conclusory statement that a plaintiff did not sustain a serious injury . . . is insufficient to sustain summary judgment dismissing the complaint for lack of serious injury." ( See id. at 1198-99.)
The majority does not address the dissent, perhaps because the only finding discussed by the dissent was on lateral bending of the lumbar spine, or because of the additional evidence that was submitted to show that the plaintiff did not sustain a serious injury, or both. In any event, those factors easily distinguish Layne v Drouillard from this case. Moreover, the concerns expressed by the dissent are consistent with other Second Department authority, including the authority requiring quantified range-of-motion findings compared to "normal." In Sirma v Binyamin ( 59 AD3d 611 [2d Dept 2009]), the court held that summary judgment was precluded where one set of defendants made a prima facie showing with the affirmation of an examining orthopedist, but another set of defendants submitted the affirmation of an orthopedist that disclosed limitations in the range of motion of the plaintiff's lumbar spine ( see id. at 613.)
When a defendant is seeking dismissal of an action on motion without a trial, it does not seem too burdensome that the defendant show agreement of its experts that the plaintiff's condition is "normal." There may be a range of what is deemed "normal," or it may vary with age or other circumstances, but here neither Dr. Nathan nor Dr. Lechtenberg suggests any such qualification on his opinion. Nor does either doctor indicate the source[s] for his opinion, including the standard of "normal" he applies, whether by reference to his own experience, accepted medical knowledge, published standards of acknowledged professional organizations, or otherwise.
Since the Court concludes that Defendant has not made a prima facie showing that either Plaintiff did not sustain a "serious injury," it is unnecessary to consider Plaintiffs' opposition. ( See Smith v Rodriguez , 69 AD3d 605 , 606 [2d Dept 2010].)
Defendant's motion is denied.