Opinion
INDEX NO. 511481/2017
05-15-2019
TOMASZ MAREK, Plaintiff, v. AMERICAN UNITED TRANSPORTATION, INC. and KADIJAH T. WILLIAMS-AKINBAMIJO, Defendants.
NYSCEF DOC. NO. 46
DECISION / ORDER
Motion Seq. No. 2
Date Submitted: 3/28/19 Recitation , as required by CPLR 2219(a) , of the papers considered in the review of defendants' motion for summary judgment.
| Papers | NYSCEF Doc. |
|---|---|
| Notice of Motion, Affirmation and Exhibits Annexed | 21-32 |
| Affirmation in Opposition and Exhibits Annexed | 34-42 |
| Reply Affirmation | 44 |
Upon the foregoing cited papers, the Decision/Order on this application is as follows:
This is a personal injury action arising out of a motor vehicle accident that occurred on July 28, 2016 at around 5:30 A.M. on Wyckoff Avenue hear the intersection with Linden Street, in Brooklyn, NY. Plaintiff claims the defendant driver went through a stop sign and hit the driver's side of his car, which caused plaintiff to then hit a parked car. His air bags deployed. Plaintiff was removed from the scene in an ambulance and taken to the Wyckoff Heights Medical Center emergency room. At the time of the accident, plaintiff was 37 years old.
In his bill of particulars, plaintiff alleges that as a result of the accident, he sustained injuries to his cervical and lumbar spine, including but not limited to disc herniations, and injuries to his left knee, left shoulder and left ear. He has had arthoroscopic surgery to his left shoulder. He was working for a construction company at the time of the accident.
The defendants contend that plaintiff did not sustain a "serious injury" as a result of this accident. However, defendants fail to make a prima facie case for dismissal, and thus the motion is denied.
Movants support their motion with an affirmation of counsel, the pleadings, plaintiff's bill of particulars, plaintiff's EBT transcript, some of plaintiff's medical records and affirmed IME reports from their examining orthopedist and neurologist as well as reports from a radiologist and a specialist in emergency medicine.
Plaintiff testified at an EBT taken on March 16, 2018. He said he has been employed at the same company since the day of the accident, except his duties have changed. He was putting up and taking down sidewalk sheds, but now he orders the materials and drives them to the job sites. In his bill of particulars, it states that he missed a week of work after the accident, and he does not have a claim for lost wages. Plaintiff testified that he had manipulations under anesthesia to an unspecified part of his body in September of 2016, and arthroscopic surgery to his left shoulder in October of 2017. He testified that he had physical therapy including chiropractic treatment for about a year after the accident, and then again after the shoulder surgery. He testified that he lives alone, and he did not have any difficulties with the activities of daily living in the six months after the accident [Pages 107-114]. Thus, the court must conclude that plaintiff was not prevented from performing substantially all of his daily activities for 90 out of the first 180 days after the accident (see Strenk v Rodas, 111 AD3d 920 [2d Dept 2013]; Hamilton v Rouse, 46 AD3d 514, 516 [2d Dept 2007]).
Dr. Barbara Freeman, an orthopedist, examined plaintiff on June 19, 2018, two years after the accident. Plaintiff told her that he was experiencing occasional stiffness in his neck and left knee. The surgery "helped the shoulder a lot" and he said it does not hurt unless he lifts heavy things. He reported that his back is "so-so." Dr. Freeman's range of motion testing of plaintiff's neck, back, shoulders and knees produced what she describes as normal results. However, her report does not provide any "normals" for comparison. Nor does she state which reference source she used for her "normals." She states that she used the "AMA 6th Edition" for plaintiff's knee, but that is not a complete cite, and she only referenced it for the knee. The doctor seems to have had some computer issues, as there is at least one sentence which is total gobbledygook, at the top of Page 4 in the description of her examination of plaintiff's shoulders, which she does not seem to have noticed when she signed the document. Dr. Freeman then states that "claimant had multiple abdominal scars and an anterior longitudinal scar going from the base of the neck to the pubis . . . It is noted that the claimant gives residual complaints to his cervical and lumbar spine. He has co-morbidities which could account for the current complaints of the neck and back areas." Dr. Freeman concludes that "the claimant requires no further orthopedic intervention or treatment."
Michael J. Carciente M.D., a neurologist, examined plaintiff on June 5, 2018. He states that "the claimant has a completely normal neurological exam. There were no objective neurological findings . . . There is no evidence of an ongoing neurological injury, disability or permanency." The court notes that the doctor does not provide any numerical findings with regard to any range of motion testing.
Dr. Eric L. Cantos, a radiologist, reviewed the plaintiff's cervical spine MRI taken on September 2, 2016. He states that there is "a mild bulging of the disc annulus at C5-6, and is otherwise an unremarkable study." Dr. Cantos also reviewed the plaintiff's lumbar spine MRI, taken on September 2, 2016. He states that there is "mild bulging of the disc annuli at L4-5 and L5-S1, with mild underlying disc degeneration." Dr. Cantos disputes the plaintiff's claim that he sustained cervical and lumbar disc herniations as a result of this accident.
Dr. Timothy G. Haydock, board certified in emergency medicine, reviewed the plaintiff's emergency room records. He states that after his review, "there is no indication that the plaintiff sustained any significant injury as a result of this motor vehicle accident other than left shoulder contusion consistent with a mild strain. After a review of the records, it is my conclusion that the injuries claimed in the bill of particulars are inconsistent with the initial presentation and documentation in the medical record . . . The records reviewed . . . show that the claimed injuries do not have an acute traumatic origin related to the accident on July 28, 2016. It is my opinion within a reasonable degree of medical certainty that there were no acute traumatic findings to causally relate the plaintiff's accident and the claimed injury other than minor, "minimal" left shoulder tenderness consistent with a contusion."
The court finds that defendant has made a prima facie case only with regard to the category in Insurance Law §5102(d) "a medically determined injury or impairment which prevented the party from performing substantially all of the material acts which constituted his or her customary daily activities for not less than 90 days during the 180 days immediately following the accident" However, defendants have not sustained their prima facie burden as to all of the plaintiff's claimed injuries and as to all of the applicable categories of injury in Insurance Law §5102(d), it is unnecessary to determine whether the papers submitted by the plaintiff in opposition to the motion are sufficient to raise a triable issue of fact. (See, Yampolskiy v Baron, 150 AD3d 795, 795 [2d Dept 2017]; Valerio v Terrific Yellow Taxi Corp., 149 AD3d 1140, 1140 [2d Dept 2017]; Koutsoumbis v Pacciocco, 149 AD3d 1055 [2d Dept 2017]; Aharonoff-Arakanchi v Maselli, 149 AD3d 890 [2d Dept 2017]; Lara v Nelson, 148 AD3d 1128 [2d Dept 2017]; Sanon v Johnson, 148 AD3d 949 [2d Dept 2017]; Weisberg v James, 146 AD3d 920 [2d Dept 2017]; Marie v Gregory, 146 AD3d 874 [2d Dept 2017]; Goeringer v Turrisi, 146 AD3d 754 [2d Dept 2017]; Che Hong Kim v Kossoff, 90 AD3d 969 [2d Dept 2011].
Accordingly it is ORDERED that the motion is denied.
This constitutes the decision and order of the court. Dated: May 15, 2019
ENTER:
/s/ _________
Hon. Debra Silber, J.S.C.