Opinion
INDEX 17-600267
05-05-2020
THOMAS P. MACALUSO, Plaintiff, v. LEONEL A. ORTIZ, Defendant. CAL. No. 19-01304MV Mot. Seq. #001- MG; CASEDISP
LITE & RUSSELL, PLLC Attorney for Plaintiff LEWIS JOHS AVALLONE AVILES, LLP Attorney for Defendant One CA Plaza
Unpublished Opinion
MOTION DATE 8-15-19
ADJ. DATE 10-17-19
LITE & RUSSELL, PLLC Attorney for Plaintiff
LEWIS JOHS AVALLONE AVILES, LLP Attorney for Defendant One CA Plaza
GEORGE M. NOLAN JUDGE
Upon the following papers read on this e-filed motion for summary judgment: Notiee of Motion/Order to Show Cause and supporting papers by defendant, dated July 24, 2019; Notice of Cross Motion and supporting papers __; Answering Affidavits and supporting papers by plaintiff, dated October 3, 2019; Replying Affidavits and supporting papers by defendant, dated October 16, 2019; Other; (and after hearing counsel in support of and opposed to the motion) it is.
ORDERED that the motion by defendant for summary judgment dismissing the complaint on the ground that plaintiff did not sustain serious injuries as defined in Insurance Law § 5102 (d) is granted.
This is an action to recover personal damages for injuries allegedly sustained by plaintiff when his vehicle collided with a vehicle owned and operated by defendant. The accident allegedly occurred on October 7, 2016, on Veterans Memorial Highway, in Islandia, New York. By his bill of particulars, plaintiff alleges that, as a result of the subject accident, he sustained serious injuries and conditions, including a tear of the articular sides of the supraspinatus and infraspinatus tendons, an interstitial tearing along the posterior infraspinatus tendon, a tear of the superior subscapularis tendon, and a tear of the long head of the biceps tendon.
Defendant moves for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102 (d).
On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Akhtar v Santos, 57 A.D.3d 593, 869 N.Y.S.2d 220 [2d Dept 2008]). The defendant may satisfy this burden by submitting the plaintiffs deposition testimony and the affirmed medical report of the defendant's own examining physician (see Moore v Edison, 25 A.D.3d 672, 811 N.Y.S.2d 724 [2d Dept 2006]; Farozes v Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706 [2d Dept 2005]).
Here, defendant made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) through the affirmed report of defendant's examining physician (see Bailey v Islam, 99 A.D.3d 633, 953 N.Y.S.2d 39 [1st Dept 2012]; Sierra v Gonzalez First Limo, 71 A.D.3d 864, 895 N.Y.S.2d 863 [2d Dept 2010]). On April 15, 2019, approximately two years and six months after the subject accident, moving defendant's examining orthopedist, Dr. Lopez Steuart, examined plaintiff and performed certain orthopedic tests, including the apprehension test, the Clunk test, the Sulcus test, the AC Shear test, the empty can test, the drop arm test, and the liftoff test. Dr. Steuart found that all the test results were negative or normal, and that there was no spasm in plaintiffs left shoulder. Dr. Steuart also performed range of motion testing on plaintiffs left shoulder, using a goniometer to measure his joint movement. Dr. Steuart found that plaintiff exhibited normal joint function with only minor restriction in forward flexion of 170 degrees (175 degrees normal). Dr. Steuart opined that plaintiff had no orthopedic disability at the time of the examination (see Willis v New York City Tr. Auth., 14 A.D.3d 696, 789 N.Y.S.2d 223 [2d Dept 2005]).
Further, at his deposition, plaintiff testified that as a result of the subject accident, he suffered injury only to his left shoulder. He testified that following the accident, he was not confined to his home, he did not miss any time from work, and there was no change in working hours. He also testified that at work, he was able to complete all the tasks he was assigned only with a "little more difficulty." He testified that there is no activity that he is unable to perform because of the accident, although he had difficulty in "sleeping, waking up, showering, driving, [and] going to work." Plaintiffs deposition testimony established that his injuries did not prevent him from performing "substantially all" of the material acts constituting his customary daily activities during at least 90 out of the first 180 days following the accident (see Burns v McCabe, 17 A.D.3d 1111, 794 N.Y.S.2d 267 [4th Dept 2005]; Curry v Velez, 243 A.D.2d 442, 663 N.Y.S.2d 63 [2d Dept 1997]).
Thus, defendant met his initial burden of establishing that plaintiff did not sustain a permanent consequential limitation of use of a body organ or member or significant limitation of use of a body function or system, and that he was not prevented from performing substantially all of his usual and customary daily activities for 90 of the first 180 days following the accident within the meaning of Insurance Law § 5102 (d) (see Gonzalez v Green, 24 A.D.3d 939, 805 N.Y.S.2d 450 [3d Dept 2005]).
The burden, therefore, shifted to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, supra). A plaintiff claiming injury within the "limitation of use" categories must substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitation of movement 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.3d 407, 825 N.Y.S.2d 772 [2d Dept 20061; Laruffa v YuiMing 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]). To prove significant physical limitation, a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based on a recent examination or 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 (see Perl v Meher, supra; TourevAvis Rent A Car Systems, Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, supra; Cebron v Tuncoglu, supra). Furthermore, a plaintiff claiming serious injury who ceases treatment after the accident must offer a reasonable explanation for having done so (Pommells v Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380 [2005]; see Vasquez v John Doe #1, 73 A.D.3d 1033, 905 N.Y.S.2d 188 [2d Dept 2010]; Rivera v Bushwick Ridgewood Props., Inc., 63 A.D.3d 712, 880 N.Y.S.2d 149 [2d Dept 2009]).
Plaintiff opposes the motion, arguing defendant's expert report is insufficient to meet his burden on the motion. Plaintiff also argues that the medical reports prepared by his treating physicians raise a triable issue as to whether he suffered injury within the "'significant limitation of use" category of Insurance Law § 5102 (d). Plaintiff submits, inter alia, the unsworn medical report of Dr. Michael Lastihenoes and the unsworn MRI report of Dr. Michael Setton. The unsworn or uncertified medical reports submitted by plaintiff are insufficient to raise a triable issue of fact, as they are not in admissible form (see Grasso v Anger ami, 79 N.Y.2d 813, 580 N.Y.S.2d 178 [1991]; Ramirez v Elias-Tejada, 168 A.D.3d 401, 405, 92 N.Y.S.3d 188 ).
In any event, even assuming that the medical reports of Dr. Lastihenoes and Dr. Setton were admissible, Dr. Lastihenoes failed to provide any admissible medical proof that was contemporaneous with the subject accident that showed range of motion limitations in plaintiffs left shoulder (see Espinosa v Melendez, 40 A.D.3d 912, 837 N.Y.S.2d 208 [2d Dept 2007]; Felix v New York City Tr. Autlu. 32 A.D.3d 527, 528, 819 N.Y.S.2d 835 [2d Dept 2006]). Dr. Lastihenoes stated that he first examined plaintiff on October 21, 2016, two weeks after the subject accident. During the consultation, he administered range of motion testing on plaintiffs left shoulder and found that "[n]o limitation was noted with range of motion" without providing any specific range of motion testing results, although there are positive results on the impingement sign and the Speed test. When Dr. Lastihenoes subsequently examined plaintiff on November 1, 2016, November 8, 2016, November 14, 2016, December 2, 2016, December 28, 2016, and January 26, 2017, he administered range of motion testing on plaintiffs left shoulder without providing specific testing results. Based on his review of MRI films of plaintiff s left shoulder, Dr. Setton found that there were an articular surface tearing of the conjoined tendons, an interstitial tearing along the posterior infraspinatus tendon, a surface tearing of the superior subscapularis tendon, and a partial tearing of the long head of the biceps tendon. The mere existence of a tear is not a serious injury without objective evidence of the extent and duration of the alleged physical limitations resulting from the injury (see Bamundo v Fiero, 88 A.D.3d 831, 931 N.Y.S.2d 239 [2d Dept 2011]; McLoud v Reyes, 82 A.D.3d 848, 849, 919 N.Y.S.2d 32 [2d Dept 2011]).
Finally, plaintiff failed to offer competent evidence that he sustained nonpermanent injuries that left him unable to perform his normal daily activities for at least 90 of the 180 days immediately following the accident (see John v Linden, 124 A.D.3d 598, 1 N.Y.S.3d 274 [2d Dept 2015]; Strenk v. Rodas, 111 A.D.3d 920, 921, 976 N.Y.S.2d 151 [2d Dept 2013]). Thus, defendant's motion for summary judgment based on plaintiffs failure to meet the serious injury threshold is granted.