Opinion
6371/99.
Decided June 30, 2005.
Defendant, Leonard T. Calandra, moves pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint and all cross-claims as against him on the ground that plaintiff has failed to establish a prima facie case of a "serious injury" as defined in section 5102 (d) of the Insurance Law. Co-defendants, Dynamic Painting Corp. and Eric Knoch, cross-move pursuant to CPLR 3212 for summary judgment dismissing the complaint on the same ground, adopting Mr. Calandra's arguments. In addition, should plaintiff ultimately recover from him, they seek judgment over as against him. Plaintiff opposes the motion and cross-motion, contending that material, triable factual issues exist as to whether she sustained a "serious injury" in contemplation of section 5102 (d) of the Insurance Law.
Subsequently, defendants Dynamic Painting and Knoch submitted a second motion, in which they seek to dismiss plaintiff's complaint predicated on the application of section 29 (6) of the Workers' Compensation Law. Both plaintiff and Calandra oppose this motion.
In this personal injury action, plaintiff seeks to recover damages on the ground that she suffered a "serious injury" as defined in section 5102 (d) of the Insurance Law.
On April 11, 1995, at approximately 1:30 P.M., plaintiff was a passenger in a van that was involved in an accident with a vehicle owned and operated by Mr. Calandra, which occurred on the Robert Moses Causeway, at or near its intersection with Route 27A, in Islip, New York, Suffolk County. Following the accident, plaintiff was taken by ambulance to Good Samaritan Hospital in West Islip. While there, she complained of pain in her head, neck and back, tingling of the arm, numbness in both legs and nausea. She was examined, was given an injection, was prescribed Naprosyn, and was released. When her pain persisted, she sought medical treatment at Greater Metropolitan Medical Services, P.C., located at 26 Court Street, Brooklyn, New York, where she saw various medical service providers, including a neurologist, Dr. Levy, and Irving Friedman, M.D. When she commenced treatment there, she complained of pain in her head, neck and lower back, radiating into her right leg, along with pain in her left thigh, knee and hip. In addition, she complained of dizziness and nausea. Thus, she was advised to begin an intensive program of physical therapy. For the next ensuing seven months, she went twice per week. The program consisted of electrical stimulation, hot and cold packs and massage. During its course, she purchased a heating pad, a neck brace and a special cushion pillow. She used the brace for approximately six months. The therapy sessions were conducted in Dr. Friedman's office.
According to plaintiff, having reached a plateau in the course of treatment of her neck and back, she subsequently stopped her physical therapy sessions, because Dr. Friedman felt that additional treatment would not improve her condition, but she was advised to continue a course of therapy at home, consisting of exercises for her neck and back. Because of persistent pain, and upon Dr. Friedman's recommendation, she did not return to work as an apprentice painter for more than one year; in fact, she never returned to that job.
The initial burden rests with defendants, who must establish a prima facie case that, as a matter of law, they are entitled to judgment because it has been sufficiently demonstrated that plaintiff did not suffer a "serious injury" ( Gaddy v. Eyler, 79 NY2d 955, 957; Licari v. Elliott, 57 NY2d 230, 235-37, 239). On January 23, 2003, via an independent medical examination (IME), plaintiff was examined by defendants' orthopedic surgeon, Stephen G. Zolan, M.D., a certified Diplomate of orthopedic surgery. Dr. Zolan reviewed plaintiff's records from Good Samaritan Hospital and Greater Metropolitan Medical Services, P.C., and also conducted his own physical examination and evaluation of plaintiff. Plaintiff complained that she was experiencing neck, back and bilateral knee pain. Yet she exhibited a normal gait, and got on and off the examining table unassisted.
An examination of the cervical spine by Dr. Zolan revealed a normal lordosis, there was no palpable or visible spasm present, and there was no restriction of movement noted, with no deficit of motor, sensory or reflex functions in the upper extremities. Her grip and pinch were normal.
In examining plaintiff's lumbar spine, Dr. Zolan found a normal lordosis, with no palpable or visible spasm of the thoracolumbar area, and upon palpation, no tenderness was noted. Moreover, no deficits in motor, sensory or reflex functions were found. This was with respect to plaintiff's lower extremities, and she was able to stand on her heels and toes.
Straight-leg raising was negative to ninety degrees bilaterally. Range of movement of plaintiff's knees was from zero to 140 degrees, and they were free of effusion and were stable. Apley, McMurray and Lachman's tests were negative bilaterally, and there was no retro or parapatellar tenderness or crepitus, and no joint line tenderness.
Dr. Zolan concluded that the injuries complained of and the accident were causally related. He noted, however, that plaintiff's cervical and lumbar sprains had resolved, and that the same result was evident with contusions of the knees. Despite subjective complaints of pain from plaintiff, he opined that there was no clinically objective medical disability, and that plaintiff could perform all of her customary daily activities and those of her work and military career (at the time of Dr. Zolan's examination, plaintiff was serving in the U.S. Army).
Defendants also point out that as early as April 25, 1995, two weeks after the accident, Greater Metropolitan Medical Services, P.C. performed a radiographic examination of the lumbosacral spine, the pelvis and the left knee and the right one, with the results sent to Sue Ellen Levy, M.D., the neurologist treating plaintiff. As to the examination of the lumbar spine, all lumbar vertical bodies were maintained in height, and there was no evidence of fracture, lytic or blastic metastatic disease; the visualized facet joints were intact. The posterior elements were unremarkable. No "soft tissue" abnormalities were demonstrated. Consequently, it was concluded that the lumbosacral spine was normal.
On the same day, as indicated, plaintiff's pelvis and knees were examined radiographically. As to her pelvis, the osseuous structures of the ilium, ischium and pubis were intact. There was no evidence of a fracture of the acetabulum, and there was also no evidence of lytic or blastic disease, and no "soft tissue" abnormalities were identified. The sacroiliac joints, symphysis and symphysis pubis were unremarkable. It was therefore concluded that the results of this examination were also normal.
Finally, as to plaintiff's knees, in neither case was evidence found of bony "soft tissue" or articular disease. Thus, in consonance with the other examinations, it was determined that plaintiff's knees were normal.
Based on the preceding, defendants have established entitlement to judgment, as a matter of law, that plaintiff has not sustained a "serious injury" within the meaning of section 5102 (d) of the Insurance Law, and the burden now shifts to plaintiff to establish a prima facie case of a "serious injury" (Gaddy v. Eyler, 79 NY2d 955, 957, supra; Licari v. Elliott, 57 NY2d 230, 235-37, 239, supra). In determining whether plaintiff has met her burden, this Court concludes that it is necessary to focus on several statutory categories, for although plaintiff need only meet her burden as to one of the statutory categories, the parties have attempted to buttress their positions from the perspective of several categories, inviting this Court to do likewise.
Section 5102 (d) of the Insurance Law 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 90 days during the 180 days immediately following the occurrence of the injury or impairment." The accompanying case law has required plaintiffs to submit objective, competent medical evidence showing that objective tests were conducted, without merely relying on subjective complaints of pain ( Scheer v. Koubek, 70 NY2d 678, 679; Grossman v. Wright, 268 AD2d 79 [2nd Dept 2000]).
In her verified bill of particulars, dated July 24, 1998, plaintiff alleged the following injuries: cervical myofascitis; restrictive range of motion of the cervical spine; paracervical muscle spasm; cervical sprain and strain; lumbar myofascitis; restrictive range of motion of the lumbar spine; paralumbar muscle spasm; a positive Patrick's test; a positive straight-leg raising; lumbar sprain and strain; left hip arthropathy; bruising over the left thigh; bruising over both ankles; bilateral knee and ankle pain; posttraumatic adjustment reaction; an abnormal EEG; partial, permanent loss of use of the cervical and lumbar spine and the lower extremities, headaches and additional injuries, pain and symptometology.
In an affirmation dated November 15, 2004, Irving Friedman, M.D., who regularly treated plaintiff at Greater Metropolitan Medical Services, P.C, relates his findings during plaintiff's course of treatment and his physical examinations. Dr. Friedman first saw plaintiff on April 20, 1995, nine days after the accident. At that time, she complained of pain in her head, neck, lower back, thighs, hips and legs, as well as dizziness and nausea. On that day, he conducted tests on her muscles, ligaments, tendons and other body tissues for objective signs of injury. Plaintiff's gait and associated movements were antalgic, with guarding of the neck and lower back, and she favored her left leg. He palpated her cervical spine, finding muscle spasm with percussion tenderness over the paracervical region. Measuring her cervical range of motion with an inclinometer, Dr. Friedman found a significant restriction of flexion, extension and horizontal rotation of the cervical spine.
Plaintiff's lumbar spine was also palpated, and muscle spasm with percussion tenderness was found in the paralumbar region. Dr. Friedman noted obvious bruising over the thigh and at both ankles. Forward flexion of the lumbar spine was limited to fifty degrees, with a norm of ninety degrees, constituting a forty-four percent restriction; straight-leg raising was positive at thirty degrees on the left, constituting a sixty-six percent restriction. There was also a positive Patrick's test on the left.
In light of this physical examination and evaluation, plaintiff was advised to begin an intensive course of physical therapy, which she did two to three times per week for about seven months. As noted earlier, the program consisted of electrical stimulation, hot and cold packs and massage. Treatment was subsequently stopped, however, because in his view plaintiff had reached a plateau in her program, so that she would be unable to benefit from additional treatment. Nonetheless, she was also advised to continue exercises for her neck and back through a home therapy program. Dr. Friedman also advised plaintiff to avoid activities that would put stress on her neck and back.
Having learned that plaintiff was employed as an apprentice painter at the time of the accident, Dr. Friedman recommended that she suspend working while undergoing her course of care with him, since her present employment could place additional stress on her neck and back, thus potentially exacerbating her injuries. Plaintiff followed this recommendation, and did not return to work at all for at least one year; in fact, she never returned to her employment with Romano Enterprise, but instead found work after more than one year at McDonald's as a cashier. During that period, Dr. Friedman determined that she was completely disabled.
On January 22, 2003, the day before plaintiff was examined and evaluated by defendants' physician, Dr. Zolan, Dr. Friedman performed a re-evaluation and follow-up examination. He observed that plaintiff continued to complain of persistent pain of her head, neck and lower back, radiating to her lower extremities.
As before, Dr. Friedman tested her muscles, ligaments, tendons and other body tissues for objective signs of injury. With his hands, he palpated plaintiff's lumbosacral spine, and found tenderness of the paravertebral muscles. Plaintiff's gait showed antalgia.
Once again using an inclinometer, Dr. Friedman measured plaintiff's range of motion. His examination of the lumbosacral spine revealed forward flexion limited to forty-five degrees, with a norm of ninety degrees, constituting a fifty percent restriction. Straight-leg raising was positive at sixty degrees bilaterally, with a norm of ninety degrees, constituting a thirty-three percent restriction. She was able to squat fifty percent of the normal distance, and Patrick's maneuver was two plus positive on the right, with forty-five percent of internal and external rotation. Plaintiff was hyesthetic to pin prick and to touch over the dorsum and sole of the right foot, as compared to the left.
Dr. Friedman also palpated plaintiff's cervical spine with his hands and found muscle spasm in the paracervical region. Again using the inclinometer, his examination of the cervical spine found flexion and extension to be significantly restricted; rotation was limited to seventy degrees, with a norm of ninety degrees, constituting a twenty-two percent restriction.
Dr. Friedman opined, to a reasonable degree of medical certainty, that plaintiff had sustained the following injuries: severe lumbar sprain, with radiculopathy; severe cervical sprain, with radiculopathy; right knee and left hip arthropathy, and posttraumatic stress disorder. Based on his examinations and his review of plaintiff's medical records, he also concluded that plaintiff had a corresponding permanent twenty-five percent loss of use of her neck and lower back. He characterized her injuries as "permanent, consequential and significant," and were causally related to the April 11, 1995 accident, as a result of which she can no longer perform work duties involving sitting, standing, walking or driving for lengthy periods, any physical exertion including carrying, lifting, bending, holding or working long hours. Dr. Friedman commented that this inability to perform such activities was "a natural and expected medical consequence of her injuries."
Plaintiff alleges that she has met her burden with respect to several threshold categories. First, she claims to have sustained a permanent consequential loss of use of a body member, organ, function or system. In order to satisfy this requirement, plaintiff must demonstrate that the loss is indeed permanent and causally related to the subject accident. In fact, the Court of Appeals has determined that where it is claimed that there exists a permanent consequential loss of use of a body organ or member, the loss of use must be total ( Oberly v. Bangs Ambulance, Inc., 96 NY2d 295). Defendants contend that plaintiff has failed to meet her burden for application of the requirement of permanent consequential loss of use of an organ or body member, and this Court agrees. Nevertheless, as mentioned above, since the parties have discussed in great detail additional threshold categories, and have therefore invited this Court to do so, these additional categories shall be addressed.
Plaintiff also alleges that she has suffered either a permanent limitation of use of a body organ or member or a significant limitation of use of a body function or system. Although neither category requires a permanent, total loss, they both require more than mild, minor or slight limitations (Gaddy v. Eyler, 79 NY2d 955, 957, supra; Licari v. Elliott, 57 NY2d 230, 235-37, 239, supra).
Provided that the assessment possesses an objective basis, a medical expert may present a qualitative assessment of the impact of plaintiff's injuries, comparing them to the normal function of the body system, as applied to the category of a significant limitation of use of a body function or system ( Toure v. Avis Rent a Car Systems, Inc., et al., 98 NY2d 345). The Court of Appeals observed that, when supported by competent, objective medical evidence, an expert's qualitative assessment of the seriousness of a plaintiff's injuries can be tested during cross-examination, can be challenged by another expert and weighed by the trier of fact. By contrast, an expert's opinion that is unsupported by an objective basis, may be wholly speculative, thereby frustrating the legislative purpose of the No Fault Law. Defendants aver that plaintiff has failed even to meet Toure's guidelines, thus requiring dismissal of her complaint. For example, they point out that Dr. Joseph Waltz, Mr. Toure's treating neurologist, who testified at trial, had treated plaintiff for approximately 1.5 years prior to defendants' summary judgment motion, which is not true in the present litigation, since plaintiff stopped seeing Dr. Friedman after seven months of treatment and physical therapy, and did not see him again for over seven years. Moreover, defendants note that Dr. Friedman states that in reaching his diagnosis, he reviewed plaintiff's medical records, but never indicated their sources, and that he also fails to mention plaintiff's activities between 1995 and January 22, 2003, when he re-examined her. According to defendants, he also fails to correlate the normal purpose, function and use of plaintiff's cervical and lumbar spine, hips and knees with limitations found through competent, objective tests, and that Dr. Friedman also failed to demonstrate the existence of competent medical evidence linking a functional impairment with constraints on plaintiff's customary daily activities, thus resulting in her failure to meet the 90/180-day category, as well.
While defendants' arguments are not without appeal, this Court nevertheless concludes that Dr. Friedman's affirmation is sufficient to defeat defendant Calandra's summary judgment motion and co-defendants' cross-motion. This is the case because Dr. Friedman's affirmation sufficiently combines objective, competent medical evidence predicated on objective tests with an acceptable, qualitative assessment of plaintiff's injuries, their impact on her daily customary activities and a sufficient comparison with the normal function and purpose of her body function or system. Thus, plaintiff has raised a genuine, material factual issue as to the presence of a "serious injury" premised on a permanent consequential limitation of use of a body organ or member, and/or a significant limitation of use of a body function or system ( Toure v. Avis Rent a Car Systems, Inc., et al., 98 NY2d 345, supra). Insofar as meeting the requirement of submission of competent, objective medical evidence based on the expert's performance of objective tests, Dr. Friedman conducted such tests. Evidence of limitation in range of motion is sufficient to defeat a summary judgment motion (Toure v. Avis Rent a Car Systems, Inc., et al., 98 NY2d 345, supra; Eng v. New Main Line Trading Corp., 249 AD2d 359 [2nd Dept. 1998]; Cassagnol v. Williamsburg Plaza Taxi, Inc., 234 AD2d 208 [1st Dept 1996]). Similarly, straight-leg raising tests also constitute objective, competent evidence of a "serious injury" (Aguilar v. New York City Waterworks, Inc., 298 AD2d 245 [1st Dept 2002]; Adetunji v. U-Haul Company of Wisconsin, Inc., 250 AD2d 483 [1st Dept 1998]; see also Brown v. Achy, et al., 9 AD3d 30 [1st Dept., 2004]). Moreover, while Dr. Friedman's omissions in failing to identify the medical records on which he relied and the nature of plaintiff's activities between 1995 and his re-evaluation and examination on January 22, 2003 are not insignificant, whether taken alone or in combination, they do not invalidate the sufficiency or probative value of his affirmation, as it clearly mainly relies on the competent, objective medical tests he performed, such as range of motion tests, straight-leg raising tests and the use of the inclinometer. In addition, he provides an appropriate description of the affect of plaintiff's injuries with respect to the normal purpose of her body function and system, causally relates them to the subject accident, and properly indicates that they were a "natural consequence" of the accident, with resulting related limitations. Consequently, Dr. Friedman's affirmation meets the applicable guidelines and criteria set forth in Toure and Grossman v. Wright: objective, competent medical evidence derived from having conducted objective tests, thus ascribing quantitative percentages to limitations in plaintiff's range of motion, and/or a qualitative assessment of the nature of the normal function of plaintiff's body function or systems, and the resulting impact and significance of plaintiff's accompanying limitations. The fact that Dr. Friedman employs statutory language to describe plaintiff's injuries and condition and in order to support his diagnosis does not in and of itself mean that he was merely responding to defendants' motion and cross-motion, or that this language was tailored solely to meet statutory requirements (Gaddy v. Eyler, 79 NY2d 955, 957, supra), nor were his findings and conclusions predicated solely or nearly exclusively on plaintiff's subjective complaints of transitory pain (Gaddy v. Eyler, supra; Scheer v. Koubek, 70 NY2d 678, 679, supra).
Next, defendants assert that plaintiff's complaint should be dismissed because of the more than seven-year gap between Dr. Friedman's ongoing treatment and physical therapy of approximately seven months and his most recent evaluation and examination on January 22, 2003. This argument is compelling. It is indisputable that much of the recent case law has viewed significant gaps in ongoing treatment and examinations and the most recent ones with disfavor; see Montanaro v. Kandel ( 288 AD2d 275 [2nd Dept 2001]), where the appellate court observed that if a contiguous, unbroken chain of medical evidence could not be provided, there would be no way to prove the actual cause of the purported injuries; also see In the Matter of Kazhdan v. Zalkind (Index No. 154/2003 [Civ Ct, Kings County, July 15, 2004, Baily-Schiffman, J.]), where the court emphasized plaintiff's expert's failure to concretely, reasonably and satisfactorily explain a three-year gap between plaintiff's original medical treatment and his own most recent examination. If the courts have often dismissed plaintiffs' complaints where two- and three-year gaps exist, how much more so where almost an eight-year gap is evident?
The key point, however, as stated In the matter of Kazhdan by Judge Baily-Schiffman herself, is that the courts will not permit cases to proceed with such gaps where either no explanation is offered, or where it is considered to be unreasonable, unsatisfactory and to lack concreteness (Toure v. Avis Rent a Car Systems, Inc., et al., 98 NY2d 345, 355, supra; Brown v. Achy, et al., 9 AD3d 30 [1st Dept 2004]. Moreover, the issue of the existing gap goes to the weight, not the admissibility, and the court is to apply the standard of issue-finding, not issue determination ( Sillman v. Twentieth-Century Fox Film Corp., 3 NY2d 395, 404; Esteve v. Abad, 271 App Div 725, 727 [1st Dept 1947]). It is also noteworthy that the gap in treatment defense is not legislatively created, and is therefore not present in section 5102 (d) of the Insurance Law; rather, it was created by the judiciary as a means of sifting through the thousands of motor vehicle accident cases confronting the courts. Where treatment would be futile, such as where evidence shows that injuries are permanent, the gap would be excused (Taher v. Valerio-Mena, 195 Misc 2d 687 [Civ Ct, Queens County 2003], and this Court has not located any cases where this defense was used alone to dismiss a plaintiff's action ( Kauderer v. New York City Transit Authority, 306 AD2d 319 [2nd Dept 2003]; Crespo v. Kramer, 295 AD2d 467 [2nd Dept 2002]; Taylor v. Jerusalem Air Inc., 280 AD2d 466 [2nd Dept 2001], lv denied 96 NY2d 716; Pierre v. Nanton, 279 AD2d 621 [2nd Dept 2001]; Paulino v. Xiaoyu Dai, 279 AD2d 619 [2nd Dept 2001]; Betheil-Spitz v. Linares, 276 AD2d 732 [2nd Dept 2000]; Slasor v. Elfaiz, 275 AD2d 771 [2nd Dept 2000]; Reynolds v. Cleary, 274 AD2d 509 [2nd Dept 2000]; Barrow v. Budhu, 2 Misc 3d 133[A], 2004 NY Slip Op 50182[U] [App Term, 1st Dept 2004]). The courts have also been especially concerned about permitting the gap in treatment defense to be invoked when the explanation is predicated on plaintiff's impecuniousness (Rodriguez v. Yong Wan Oh, Index No. 2221QTS/2001 [Civ Ct, Queens County, July 1, 2002, Markey, J.), aff'd on other grounds 2 Misc 3d 134[A], 2004 NY Slip Op 50208[U] [App Term, 2nd 11th Jud. Dists., 2004]; see also Panchmia v. Tauber, et al., 3 Misc 3d 849 [Civ Ct, Queens County 2004]).
While it is undeniable that the gap between Dr. Friedman's last regular course of treatment and plaintiff's physical therapy and his most recent examination is extremely long, his explanation that plaintiff had reached a plateau in her treatment and therapy programs and thus had reached her maximal level of improvement is reasonable and adequate. Particularly combined with the fact that he conducted competent, objective medical tests and that he was again able to support his diagnosis upon re-examination, this Court is loath to invoke this defense as a basis for dismissing plaintiff's complaint. Clearly, a case-by-case approach must be exercised, and this Court exercised its discretion premised on the facts and circumstances of this case.
It should also be mentioned that after she left her job at Romano Enterprise, plaintiff went to live in Reading, Pa., and while in the Army, she was stationed in Alabama and Kentucky, and this clearly affected her ability and availability to see Dr. Friedman, as well.
This Court also disagrees with defendants that Dr. Friedman failed to adequately describe the affect of plaintiff's injuries and the comparison to the normal function of her body systems. He personally observed that, in light of her condition, she experienced difficulty in sitting, standing, walking and driving for lengthy periods, and that she also experienced the same with holding and lifting objects, as well as working long hours. This adequately meets the standard set forth in Toure. Moreover, the fact that plaintiff was in the military should not, in and of itself, result in denying the possibility of the existence of a "serious injury," and plaintiff notes in her affidavit opposing defendants' motion and cross-motion that she was mostly performing paperwork for the U.S. Army.
Plaintiff also maintains that she has sufficiently met her burden with respect to the 90/180-day category, by which she must demonstrate the existence of a non-permanent medically determined injury that precludes her from performing substantially all of the acts that constitute her daily customary activities for no less than ninety of the 180 days immediately following the occurrence of the injury or impairment ( Gant v. Sparacino, 203 AD2d 515 [2nd Dept 1994]). Thus, competent proof must be submitted showing that plaintiff's customary daily activities were greatly curtailed (Gaddy v. Eyler, 79 NY2d 955, 957, supra). Plaintiff is also required to submit competent, objective medical evidence that an injury or impairment was sustained ( McKnight v. LaValle, 147 AD2d 902 [4th Dept 1993]), and that the subject accident caused these injuries for the requisite period (Lough v. City of Syracuse, 191 AD2d 1018 [4th Dept 1993]).
This Court disagrees with defendants that plaintiff has failed to submit sufficient proof that her customary daily activities were substantially curtailed for the requisite period. In her affidavit, plaintiff indicates that she was, except for required medical visits, confined to bed for two months following the accident and to her home for an additional four months. She has continued to experience constant pain in her neck and lower back. She had, and continues to have, great difficulty in bending, sitting and standing for lengthy periods, also experiences difficulty in walking for long periods, and cannot do heavy or moderate lifting. She has trouble grocery shopping, obtaining a comfortable sleeping position, cannot perform house cleaning as she did prior to the accident, play with her children as she used to previously, and cannot engage in recreational activities that she enjoyed and participated in, such as basketball, golf, running and tennis. Finally, she avers that, in light of her continuous pain and the nature of her employment, Dr. Friedman advised her not to work while she continued to be under his care, and she therefore left her job at Romano Enterprise for one year, and ultimately never returned there. This is confirmed and corroborated by Dr. Friedman in his November 15, 2004 affirmation. Consequently, this Court concludes that plaintiff has also met her burden as to this category.
Finally, defendants Dynamic Painting and Knoch seek dismissal of plaintiff's complaint based on the application of section 29 (6) of the Workers' Compensation Law. Defendants maintain that since plaintiff's co-employee and supervisor, Mr. Mike Magasic, was operating the van at the time of the accident, and that he was negligent in operating the van, Mr. Knoch cannot be held liable as a non-negligent passenger and co-employee, and Dynamic, as owner of the van, cannot be held vicariously liable. Mr. Calandra opposes his co-defendants' motion to dismiss the complaint on this ground.
In Rauch v. Jones, et al. ( 4 NY2d 592), plaintiff, a passenger in a tractor trailer and a co-employee of its driver, was ruled to be precluded from recovering from the owner of the trailer. Where the operator was shown to be negligent in operating the vehicle, plaintiff's exclusive remedy was workers' compensation, and the Court of Appeals held that a motion to strike that complete defense from defendants' answer had been properly denied. The co-employee could not be sued in a direct action, even were he or she the owner of the vehicle (Liston v. Hicks, 243 App Div 159 [3rd Dept 1935], aff'd 269 NY 535), but the inquiry before the Court of Appeals was whether section 29 (6) of the Workers' Compensation Law barred a direct action against an owner who was not the injured plaintiff's employer.
The Court of Appeals read and interpreted section 29 (6) to provide that a negligent co-employee, as driver of the vehicle, could not be sued for personal injuries, and that a non-employer owner was likewise protected ( see also Constantine v. Sperry Corp., 149 AD2d 394, 395 [2nd Dept 1989]; Houston v. Avis Rent a Car Systems, Inc., 209 AD2d 583 [2nd Dept. 1994]; Ulysse, et al. v. Nelsk Taxi, Inc., 135 AD2d 528 [2nd Dept 1987]).
As early as October 9, 1998, defendants Knoch and Dynamic sought summary judgment on the issue of liability, based on application of section 29 (6) of the Workers' Compensation Law. On June 2, 1999, State Supreme Court Justice James H. Shaw, Jr. denied Dynamic's initial motion, with leave to renew upon completion of discovery. Mr. Knoch's motion for summary judgment was granted on consent, however. On November 20, 2003, this relief was sought again, and on June 4, 2003, the motion was made yet again, but it was marked off the calendar based on failure to appear.
Although it is past one and a half years later, this Court has determined to restore the motion as to Dynamic, and to deny it, since questions of fact exist as to Mr. Magasic's status; it is unclear whether he was plaintiff's co-employee. Although plaintiff stated in her pretrial deposition that he was her supervisor and co-employee at Romano, at another point she indicated that she thought he had worked for Dynamic. Moreover, Dynamic's president, Mr. Arnold Jacinto, indicated in his pre-trial deposition that on and off since 1956, mostly steadily, Mr. Magasic worked for Dynamic; and while he also stated that he believed that he had been working for Romano on the day of the accident, he declared that someone informed him that Mr. Magasic had been employed by Romano at that time. Thus, Dynamic at this juncture shall remain a party to this litigation, but especially in light of Justice Shaw's order, Mr. Knoch should not be part of this lawsuit, and in any event, there is no showing that he was comparatively or contributorily negligent in any way; he was also a passenger, and a co-employee, of plaintiff. Thus, the complaint is dismissed as against him.
Accordingly, for the foregoing reasons, summary judgment in favor of defendants Calandra and Dynamic Painting Corp. based on plaintiff's failure to establish a prima facie case as to "serious injury" is denied. Correspondingly, plaintiff has met her burden to defeat summary judgment on the question of "serious injury" as to Calandra and Dynamic; factual issues exist as to the presence of a permanent consequential limitation of use of a body organ or member, a significant limitation of use of a body function or system, and/or application of the 90/180-day category. Defendants Dynamic and Knoch's motion for summary judgment based on section 29 (6) of the Workers' Compensation Law is denied as to defendant Dynamic and denied as moot as to defendant Knoch. The action is dismissed as against defendant Knoch and severed and continued as against defendants Dynamic and Calandra.
This constitutes the decision and order of the Court.