Opinion
Index No. 56077/2020 Motion Seq. 2
01-10-2022
LINNETT MARBURY, Plaintiff, v. RUSSELL WEIS, Defendant.
Unpublished Opinion
PRESENT: HON. ALEXANDRA D. MURPHY, J.S.C.
DECISION & ORDER
HON. ALEXANDRA D. MLRPHY, J.S.C.
In an action to recover damages for personal injuries as a result of a motor vehicle accident, the defendant moves for summary judgment, pursuant to CPLR 3212, on the grounds that the plaintiff has not sustained a serious injury within the meaning of Insurance Law 5102(d).
Papers Considered NYSCEF Doc. No. 40-53; 56-58
1. Notice of Motion/Affirmation Robert J. Spence, Esq./Exhibits A-K;
2. Affirmation of Matthew D. Goodstein, Esq. in Opposition;
3. Reply Affirmation of Robert J. Spence, Esq.
Facts and Procedural Background
The plaintiff commenced this action against the defendant to recover damages for personal injuries sustained in a motor vehicle accident that occurred on December 13, 2019. In an order dated July 9, 2021, this Court granted the plaintiffs motion for partial summary judgment on the issue of liability.
The defendant now moves for summary judgment dismissing the complaint on the grounds that the plaintiff has not sustained a serious injury within the meaning of the Insurance Law. The plaintiff opposes the motion.
Discussion
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v N.Y. Univ. Med. Ctr, 64 N.Y.2d at 853). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; see Zuckerman v City of New York, 49 N.Y.2d at 562). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a prima facie showing of entitlement to summary judgment (see Zuckerman v New York, 49 N.Y.2d at 562).
Under the "no fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained (see Licari v Elliott, 57 N.Y.2d 230 [1982]). Insurance Law 5102(d) defines "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."
Under the "90/180" category, "a plaintiff must present objective evidence of a medically determined injury of a non-permanent nature" (Toure v Avis Rent A Car Systems, 98 N.Y.2d 345, 357 [2002]; Licari v Elliott, 57 N.Y.2d 230). The plaintiff must demonstrate that her usual daily activities were restricted during 90 of the 180 days following the accident and submit evidence based on objective medical findings of a medically determined injury or impairment which caused the alleged limitations in her daily activities (see Toure v Avis Rent A Car Systems, 98 N.Y.2d 345; Gaddy v Eyler, 79 N.Y.2d 955 [1992]).
The defendant failed to demonstrate, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law 5102(d) (see Bong An v Villas-Familia, 183 A.D.3d 582, 583 [2d Dept 2020]). The plaintiff testified at her deposition that prior to the accident, she worked full-time for an agency that provides care to the elderly. The plaintiff testified that she has not returned to work since the accident.
With respect to permanent consequential limitation and significant limitation of use, the defendant failed to demonstrate entitlement to summary judgment. The defendant submit an affirmed report of Michael I. Weintraub, M.D, who performed a neurological independent medical examination of the plaintiff on April 16, 2021. Dr, Weintraub opined that the plaintiff sustained a soft tissue injury to the lumbar spine with lumbar strain and sprain and some radicular complaints. The plaintiff was involved in two prior motor vehicle accidents in 2014 and 2016. Dr. Weintraub found that causality appeared to be related to the instant accident but may also be a reflection of pre-existing injuries from the prior accidents. In addition, the trauma appears to have exacerbated pre-existing problems.
The defendants also submitted an affirmed report of David A. Fisher, M.D., a board-certified radiologist. Dr. Fisher reviewed and compared MRIs of the lumbar spine taken on July 12, 2014 and January 10, 2020. Dr. Fisher found that both studies showed mild to moderate degenerative changes throughout the lumbar spine, which were most pronounced at the L2/3 level. There was mild levoconvex scoliosis. Dr. Fisher states that the films did not reveal any herniations or fractures. Based upon his review, Dr. Fisher found no radiographic evidence of traumatic or causally related injury to the plaintiff's lumbar spine.
The defendant's expert concluded that the soft tissue injuries to the plaintiffs lumbar spine were causally related to the accident, but the expert failed to perform a range of motion test on the plaintiffs lumbar spine. Thus, the defendant failed to establish entitlement to judgment as a matter of law (see Chang v Cardone, 113 A.D.3d 582 [2d Dept2014]).
Even if the defendant demonstrated entitlement to summary judgment, the plaintiff raised an issue of fact in opposition as to whether she sustained a serious injury pursuant to Insurance Law 5102(d) as a result of the accident (see Yu Feng Jiang v Francois, 177 A.D.3d 826 [2d Dept 2019]; Bonilla v Vargas-Nunez, 147 A.D.3d 461 [1st Dept 2017]; Smith v Green, 188 A.D.3d 473 [1st Dept 2020]). In opposition, the plaintiff submits an affirmation of Vadim Abramov, M.D., a board-certified doctor in physical medicine and rehabilitation, with attached reports and medical records. Dr. Abramov has treated the plaintiff since December 2019. Dr. Abramov avers that the plaintiffs lumbar spine condition is an exacerbation of a prior condition and that she is a candidate for further lower back treatment such as physical therapy, pain management injections and surgical intervention. Dr. Abramov avers that the plaintiff sustained serious and permanent injuries to her lumbar spine as a result of the motor vehicle accident in question and will continue to have permanent loss of motion, recurrent pain and limitation of her activities of daily living. She continues to suffer from a reduction in mobility in her lumbar spine and is rendered partially disabled.
Dr. Abramov's initial range of motion examination of the plaintiff's lumbar spine revealed flexion of 30 degrees (with 50 degrees being normal), extension to neutral (with 60 degrees being normal) and right and left rotation of 10 degrees (with 80 degrees being normal). During her most recent follow-up visit in August 2021, Dr. Abramov performed further lumbar spine range of motion tests that revealed flexion of 60 degrees (with 90 degrees being normal), extension of 10 degrees (with 30 degrees being normal) and right and left side bending of 15 degrees (with 25 degrees being normal).
Dr. Abramov concluded that as a result of the motor vehicle accident in question, the plaintiff sustained multiple disc herniations and lumbar disc bulges. While the plaintiff had prior lumbar disc bulges at all levels in 2014, the most recent accident caused significant exacerbation of her injuries. Moreover, the prior lumbar bulges at L1-2, L2-3, L3-4, L4-5 and L5-S1 are now herniated. Dr. Abramov opined that the range of motion testing revealed consistent and significant limitations in the cervical and lumbar range of motion. Dr. Abramov concluded that the plaintiff's disability is partial and permanent and has resulted in chronic pain with progressive remission and exacerbation during overuse of the low back.
Accordingly, it is
ORDERED that the defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury is DENIED (motion sequence 2).
Counsel for all parties are directed to appear for a settlement conference in Courtroom 104 on February 24, 2022 at 3:00 P.M.. Personal appearances are required unless otherwise indicated in a subsequent court notice.