Opinion
Index No. 517244/2019
06-23-2023
Elizabeth Ramos, Plaintiff, v. Mirza S. Jahar and Malysh Taxi Inc., Defendants.
Baker, McEvoy & Moskovits, P.C., Brooklyn (Bruce Zeason of counsel), for plaintiff.
Unpublished Opinion
Baker, McEvoy & Moskovits, P.C., Brooklyn (Bruce Zeason of counsel), for plaintiff.
AARON D. MASLOW JUSTICE OF THE SUPREME COURT
The following numbered papers were read on this motion:
NYSCEF Document Nos. 63-71 (notice of motion, affirmation in support, statement of material facts, and exhibits)
NYSCEF Document Nos. 73-78 (affirmation in opposition, exhibits, and word count certification)
NYSCEF Document No. 79 (reply affirmation)
Introduction
Plaintiff Elizabeth Ramos (Plaintiff") brought suit against Defendants Mirza S. Jahar ("Defendant") and Malysh Taxi Inc. ("Malysh") for personal injuries. Plaintiff claims Defendant was negligent, careless, and reckless in his operation of Malysh's vehicle. On July 2, 2018, Plaintiff, then 40 years old, was rear-ended by Defendant near the intersection of West 45th Street and Broadway in New York County. Plaintiff alleges the accident caused personal injuries, necessitating treatment. (See generally NYSCEF Doc No. 65, complaint; NYSCEF Doc No. 68, bill of particulars.) Per Plaintiff's bill of particulars, she sustained injuries to her right shoulder (including torn tendon), right knee (with the need for arthroscopic surgery on March 4, 2019 by Dr. Bradley Wasserman to repair a medial meniscus tear), and lumbar spine (including disc bulges) (see NYSCEF Doc No. 68, bill of particulars ¶ 10). As for categories of serious injury which Plaintiff claims entitles her to sue in accordance with Insurance Law § 5102 (d), she listed the following: fracture; 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 (see NYSCEF Doc No. 68, bill of particulars ¶ 20).
Defendants seek summary judgment under CPLR 3212, asserting that Plaintiff has not met the serious injury threshold required by Insurance Law § 5104 (a) in order to maintian an action for personal injuries arising out of negligence in the use of a motor vehicle. Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]; Andre v Pomeroy, 35 N.Y.2d 361 [1974]).
The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari v Elliott, 57 N.Y.2d 230 [1982]). The moving Defendants bear the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that Plaintiff has not suffered a serious injury proximately resulting from the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955 [1992]. A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 [2016]).
If Defendants have made such a showing that Plaintiff has not suffered a serious injury from the subject motor vehicle accident as a matter of law, i.e., that Plaintiff does not qualify under the relevant serious injury threshold categories as there are no material issues of fact, the burden shifts to Plaintiff to submit evidence in admissible form to establish that there are material issues of fact (see Franchini v Palmieri, 1 N.Y.3d 536 [2003]; Grasso v Angerami, 79 N.Y.2d 813 [1991]).
At oral argument, Plaintiff did not appear but Defendant did by counsel. All papers submitted by the parties on this motion have been considered.
Defendants' Prima Facie Case
Defendants rely on their medical experts to establish a prima facie case arguing Plaintiff's lack of serious injury. On March 4, 2021 (report dated March 18, 2021), Dr. Jeffrey Guttman performed an IME on Plaintiff, and opined that alleged right shoulder, right knee, and lumbar spine conditions were resolved and that, in any event, MRIs suggested that any such conditions bore no causal relationship to the motor vehicle accident-they were degenerative (see NYSCEF Doc No. 69, IME report of Dr. Jeffrey Guttman).
Similarly, Dr. Audrey Eisenstadt reviewed MRI films of the right shoulder, right knee, and lumbar spine. In a detailed report dated April 10, 2020, she concluded that there was degenerative joint disease in the right shoulder well over six months in development; the MRI imaging too place less than six months following the accident (NYSCEF Doc No. 70, MRI reviews of Dr. Audrey Eisenstadt at 1-2):
References to page numbers in NYSCEF documents are generally to the PDF page number, not the page numbers at the bottom of the documents; this is because several individually numbered documents may be aggregated into one NYSCEF document.
IMPRESSION:
Degenerative joint disease acromioclavicular joint with hypertrophic bony spurring, subarticular degenerative signal change and capsular expansion seen. Periarticular cyst seen anterior and posterior to the glenohumeral joint. Small amount of fluid in the subacromial bursa. Red marrow replacement to the fatty marrow. Tendinopathy and a partial distal tear in the supraspinatus tendon, with no muscular atrophy or tendinous retraction seen.
CONCLUSION:
Review of the MRI scan of the right shoulder performed five months, nineteen days following the incident reveals degenerative joint disease at the acromioclavicular joint, arthritic in etiology, and well over six months in development. Hypertrophic bony spurring and subarticular degenerative signal change is seen with narrowing of the subacromial joint space, effacement of the subacromial fat pad and capsular expansion seen. These changes are all indicative of long-standing arthritic disease, which has no traumatic etiology and is well over five months in origin. No bone contusion, marrow edema, fracture or dislocation is seen. The narrowing of the subacromial space due to the degenerative changes at the acromioclavicular joint are indicative of an impingement syndrome or a pinching action on the structures passing below the subacromial region. These structures include the rotator cuff musculature, glenoid labrum and biceps tendon. Tendinopathy and a partial distal supraspinatus tendon tear is seen. This is proximal to the tendinous insertion into the greater tuberosity of the humerus associated with a minimal amount of fluid in the subacromial space. The minimal amount of fluid and absence of bone marrow edema at the tendinous insertion into the greater tuberosity of the humerus is indicative of the chronicity to this tendinous pathology. No muscular atrophy is seen, but periarticular cysts are noted both anterior and posterior to the glenohumeral joint indicating chronic intraarticular inflammation and an outpouching of a chronically overgrowth synovial lining. It is also the likely etiology of the glenohumeral joint effusion which is necessary for fluid/nutrients to the cartilaginous structures which receives no direct blood supply. Other structures affected by impingement are the biceps tendon and glenoid labrum. No labral tear is seen. No biceps tear is noted secondary to the narrowing of the subacromial space and degenerative changes seen at the acromioclavicular joint. The periarticular cysts identified could not have developed in less than six months' time and indicate the chronic nature to the long-standing inflammation in the acromioclavicular joint. Red marrow replacement of the fatty marrow is seen. This is an indication of replacement of the fatty marrow due to patient habitus or smoking history, which has no traumatic etiology or association to the 07/02/18 incident.
The detailed review by Dr. Eisenstadt of the right knee MRI imaging performed one month and two days after the accident revealed long-standing degenerative joint disease involving the osseous and meniscal structures, which could not have developed in less than six months' time (id. at 3-4):
IMPRESSION:
Degenerative joint disease femoropatellar joint space with lateral tilting of the patella and narrowing of the lateral femoropatellar joint space. Lateral femoral tibial osteophyte formation. Bilateral femoral tibial joint space narrowing. Grace II mucoid intrasubstance degenerative signal change seen posterior horns of the medial and lateral menisci. Multiseptated medial parameniscal cysts. Trace joint effusion. No ligamentous or tendinous disruption seen.
CONCLUSION:
Review of the right knee MRI examination performed one month, two days following the incident reveals long-standing degenerative joint disease involving the osseous and meniscal structures. Lateral tilting of the patella is noted, a congenital abnormality related to a shallow intertrochanteric groove in the distal femur. Cartilaginous thinning and hypertrophic bony spurring is seen involving the lateral femoropatellar and femorotibial joint spaces, indicative of long-standing degenerative joint disease predating the incident one month, two days prior to this examination. The cartilaginous loss and hypertrophic bony spurring is over six months in development. Joint space narrowing with meniscal loss is seen in both the medial and lateral femorotibial joint spaces. This is another indication of a wear and tear breakdown of meniscal and articular cartilage due to age and overuse, but with no traumatic etiology. No underlying osteochondral defect, bone contusion or fracture is seen. Intrasubstance mucoid II degenerative signal change is seen in the posterior horns of the medical and lateral menisci. This degenerative process could not have developed in less than six months' time and has no traumatic basis. It is a wear and tear breakdown of meniscal tissue, arthritic in etiology. The chronicity of this meniscal pathology is evident by the parameniscal multiseptated cyst in the posterior soft tissues. This is the result of an overgrowth of the synovial/joint space lining due to chronic intraarticular inflammations and meniscal pathology, which has not traumatic basis or association with the incident. It is also the likely etiology for the small joint effusion seen arising from the overgrown hypertrophied synovial/joint space lining. Any traumatic meniscal changes would be associated with bony contusions, ligamentous and tendinous disruption none of which are seen on the MRI scan performed on month following the incident.
In the lumbar spine, MRI imaging revealed no herniations, but there were two disc bulges Performed one month a two days after the accident, the MRI imaging revealed no evidence of post-traumatic disc changes, asserted Dr. Eisenstadt. Desiccation was a process with over three months in development and with no traumatic etiology. A bone hemangioma was a developmental abnormality. No condition was causally related to the July 2, 2018 accident. (Id. at 5-6.) Dr. Eisenstadt's review stated thereat:
IMPRESSION:
Bone hemangioma seen in the L4 vertebra. Desiccation and bulging of disc material at the L4-5 intervertebral disc level with bulging seen at the L3-4 level. No focal disc herniation or annular tear seen.
CONCLUSION:
Review of the lumbar MRI scan performed one month, two days following the incident reveals no evidence of any posttraumatic bony, ligamentous or intervertebral disc changes. Desiccation or drying out of the L4-5 intervertebral disc level is noted, a process over three months in development and with no traumatic etiology. A bone hemangioma is seen in the L4 vertebra. This is a developmental abnormality, involving accumulation of blood vessels in a vertebral body, which has no traumatic etiology or clinical significance. Mild bulging of the L3-4 and L4-5 intervertebral disc levels is noted. Disc bulging is not a traumatic process. It is degenerative in origin related to ligamentous laxity and weakening of the outer ligamentous fibers. No osseous contusion, disc herniation or annular tear is seen posttraumatic in etiology or causally related to the incident of 07/02/18.
Based on Plaintiff's deposition, Defendants also argued that Plaintiff's being confined to bed for about two weeks while still performing general household tasks did not meet a 90/180 claim, citing to Attanasio v Lashley (223 A.D.2d 614 [2d Dept 1996]) (see NYSCEF Doc No. 71, Plaintiff's deposition transcript at 86-91).
Defendants list various cases in support of their argument that summary judgment should be granted. Among these cases, Defendants utilize Grasso v Angerami (79 N.Y.2d 813), alluding to Plaintiff's unsworn medical reports being inadmissible as evidence. However, while some are unsworn, they are listed among the documents reviewed by Dr. Guttman and are therefore admissible as evidence (see Irizarry v Lindor, 110 A.D.3d 846 [2d Dept 2013]). Defendants also argue that summary judgment should be granted because of Plaintiff's unexplained gap in treatment, citing to Farozes v Kamran (22 A.D.3d 458 [2d Dept 2005]).
This Court finds that Defendants made out a prima facie case that any injuries claimed by Plaintiff do not fall within the ambit of the serious injury categories of a fracture or permanent loss of use of a body organ, member, function, or system. There is nothing in the record to show that as a result of the July 2, 2018 accident, Plaintiff sustained a fracture. Dr. Eisenstadt's MRI reviews explicitly opined that there were no fractures (see NYSCEF Doc No. 70, MRI reviews of Dr. Audrey Eisenstadt at 1, 2, 4, 5). Nothing in the record established that Plaintiff sustained the total loss of use of any body part, a total loss of use being required in order to meet the category of permanent loss of use of a body organ, member, function, or system (see Oberly v Bangs Ambulance, Inc., 96 N.Y.2d 295 [2001]).
Even Plaintiff's medical evidence demonstrates that there is no total loss of range of motion in any body part; Plaintiff's deposition testimony did not relate any permanent loss of use of a body part. This Court scoured Plaintiff's evidence to locate a mention of a fracture; none was found. The Court is perplexed as to why the fracture and permanent loss of use categories were asserted in Plaintiff's bill of particulars.
As for the category of 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, Defendants made out a prima facie case that it was not achieved (see Gaddy, 79 N.Y.2d 955; Licari v Elliott, 57 N.Y.2d 230 [1982]; Balshan v Bouck, 206 A.D.2d 747 [3d Dept 1994]). Per Plaintiff's deposition, she performed her routine household tasks of bathing, dressing, cooking, cleaning, shopping, taking public transportation, and driving (after repair of her vehicle) during the six months after the accident; she stayed home only a week or two after the accident (see NYSCEF Doc No. 71, Plaintiff's deposition transcript at 86-91).
Finally, with respect to the permanent consequential limitation and significant limitation categories, Defendants established a prima facie case of no material issues of fact-Plaintiff's alleged injuries did not constitute a serious injury under these two categories, based on Dr. Guttman's IME report (see Toure, 98 N.Y.2d 345; Gaddy, 79 N.Y.2d 955).
Dr. Eisenstadt's highly detailed reports of her reviews of the MRI imaging made out a prima facie case likewise of a lack of serious injury-that the conditions complained of by Plaintiff were not traumatic but rather were degenerative.
Plaintiff's Arguments
Plaintiff's counsel's affirmation argued that Defendants' prima facie burden was not met because they failed to disprove that Ms. Ramos' injuries were causally related to the accident. Plaintiff claims that Dr. Guttman's use of the word "suggestive" in describing the degenerative condition is too "equivocal" to establish causation. It cites to Glynn v Hopkins (55 A.D.3d 498 [1st Dept 2008]). Plaintiff's counsel emphasized that Dr. Eisenstadt focused on joints. However, this seems to overlook the fact that tendons are located at joints. While the court in Glynn held that the medical expert's phrasing of "disc herniation... may be chronic in nature" was too broad (id. at 498), and this phrasing is analogous to Dr. Guttman's statement that the injuries "are suggestive of degenerative changes," Dr. Eisenstadt definitively opined that there were degenerative conditions (compare NYSCEF Doc No. 69, IME Report of Dr. Jeffrey Guttman with NYSCEF Doc No. 70, MRI reviews of Dr. Audrey Eisenstadt).
Plaintiff's counsel further focused on his client's alleged permanent loss as a result of the accident. This is based on Dr. Stella Mansukhani's finding of a 17% deficit in Plaintiff's right shoulder range of motion and Dr. Wasserman finding of a 14% deficit in range of motion in her right knee, limitations that allegedly lasted four years (see NYSCEF Doc No. 74, Dr. Stella Mansukhani's final report; NYSCEF Doc No. 76, Dr. Bradley Wasserman's final report). Plaintiff fails to demonstrate that the "permanent loss of use" is total as Plaintiff is still able to perform general household chores requiring use of the injured areas without issue (see Oberly, 96 N.Y.2d 295 [2001]).
Discussion
Defendants' motion for summary judgment should be granted based on Dr. Eisenstadt's reports analyzing the MRI films. Due to her findings regarding causation of conditions in the right shoulder, right knee, and lumbar spine-that they were degenerative in nature-Plaintiff is unable to prove that the medical conditions complained of constituted permanent loss, permanent consequential limitations, or significant limitations proximately resulting from the July 2, 2018 motor vehicle accident.
Plaintiff's medical experts failed to properly rebut this, stating only that there were injuries which were causally related to the accident, but not addressing the alleged degenerative nature of the conditions detailed by Dr. Eisenstadt in her meticulous analyses of the MRI scans (see, e.g., Lemieux v Horn, 39 N.Y.3d 1108 [2023], affg, 209 A.D.3d 1100 [3d Dept 2022] [where there is pre-existing degenerative condition, Plaintiff must rebut with objective medical evidence distinguishing pre-existing condition from injuries claimed to have been caused by the subject accident]. This is especially true where the reports of the radiologists who reviewed the MRI scans taken at the behest of Plaintiff's doctors did not note traumatic injuries (see NYSCEF Doc No. 75, records of New York Heights Medical PC at 83-88; Alvarez v NYLL Mgt. Ltd., 24 N.Y.3d 1191 [2015], affg 120 A.D.3d 1043 [1st Dept 2014]).
Dr. Narayan B. Paruchuri, the radiologist who issued the December 21, 2018 MRI report regarding Plaintiff's right shoulder and sent it to Dr. Mansukhani, did not attribute any finding to trauma (see NYSCEF Doc No. 75, records of New York Heights Medical PC at 83-84). The same is true of Dr. David Milbauer's August 8, 2018 MRI reports regarding the right knee (see id. at 87-88) and the lumbar spine (see id. at 85-86).
Dr. Bradley Wasserman, who performed the right knee surgery on Plaintiff, stated in reports (October 4, 2018; February 19, 2019; March 8, 2019) that "If her history is true, with a reasonable degree of medical certainty, the accident on July 2, 2018 is causally related to her right knee injury" (NYSCEF Doc No. 77, records of Bradley Wasserman MD PLLC at 5, 6, 8), yet in those reports he did not compare right knee range of motion to the established norms (see id. at 4, 6, 8; Toure, 98 N.Y.2d 345; Dinc v Shalesi, 208 A.D.3d 558 [2d Dept. 2022]). In his final report of January 13, 2013, Dr. Wasserman wrote, "After taking a history, reviewing the provided medical records and performing a physical examination, it is my opinion with a reasonable degree of medical certainty, that her right knee injuries are causally related to the accident on 07/02/18" (NYSCEF Doc No. 76, Dr. Bradley Wasserman final evaluation at numbered p 3). He did not describe the records reviewed. As for his examination, he noted right knee range of motion at 0-120 degrees, compared to the normal 140 degrees. This would constitute a 14.3% reduction, which is insignificant (see Waldman v Dong Kook Chang, 175 A.D.2d 204 [2d Dept. 1991] [15% reduction]. There were no ranges of motion for the right shoulder and the lumbar spine. Clearly, Dr. Wasserman's reports do not adequately rebut Dr. Eisenstadt's with respect to proximate causation.
Under the standard set in Jilani v Palmer (83 A.D.3d 786 [2d Dept 2011]), Dr. Mansukhani comes closer to rebutting Dr. Eisenstadt in concluding that injuries were causally related to the July 2, 2018 accident. Her final report was dated December 27, 2022, but she amended it on March 7, 2023 to add something about causality. (See NYSCEF Doc No. 74, Dr. Stella Mansukhani's final report at numbered p 1.) The amendment suggests that someone informed her that after writing her report she omitted a reference to causality, resulting in her opinion being tailored on March 7, 2023 to conform to the legal requirements for there to be a serious injury (see Lopez v Senatore, 65 N.Y.2d 1017 [1985]; Mickelson v Padang, 237 A.D.2d 495 [2d Dept. 1997]). The March 7, 2023 amendment by Dr. Mansukhani stated: "Based upon the medical history of the patient, including lack of pain or other symptoms to the patient's right shoulder and lower back prior to July 2, 2018 and based upon my physical examination of the patient, the injuries are causally related to the July 2, 2018 motor vehicle accident" (NYSCEF Doc No. 74, Dr. Stella Mansukhani's final report at numbered p 2). However, in Jilani, the accepted opinion was based upon additional factors which are not present here-Dr. Mansukhani did not review MRI films, electrodiagnostic studies, or medical records. She did not list prior examinations. She did not use a goniometer (see Gersbeck v Cheema, 176 A.D.3d 684 [2d Dept. 2019]). Her opinion is conclusory (see Alvarez v NYLL Mgmt. Ltd., 24 N.Y.3d 1191; Lopez, 65 N.Y.2d 1017; Gaddy, 79 N.Y.2d 955; Irizarry v Lindor, 110 A.D.3d 846 [2d Dept. 2013].) Dr. Mansukhani did not even opine on causality with respect to the right knee, which appears to be the body part complained about the most by Plaintiff and which underwent surgery.
Moreover, in prior examination reports from Dr. Mansukhani's medical facility of July 31, 2018; September 20, 2018; December 13, 2018; February 1, 2019; March 15, 2019; May 10, 2019; and July 1, 2019, there are no opinions on causality (see NYSCEF Doc No. 75, records of New York Heights Medical PC at 7-12, 14-27). Dr. Mansukhani's July 12, 2018 examination report contains a conclusory statement regarding causality but she did not indicate that a goniometer was used that day (see id. at 3-6; Gersbeck, 176 A.D.3d 684). Dr. Mansukhani's September 6, 2019 examination report conclusorily stated that there was a causal relationship but she only examined the lumbar spine and the only reduction in range of motion was insignificant (flexion 85/90 degrees) (see id. at 29-31); no other body parts referenced in the bill of particulars were examined. As with Dr. Wasserman, Dr. Mansukhani's reports do not rebut Dr. Eisenstadt's.
All of these examinations were conducted by Dr. Mansukhani except that of February 1, 2019, which was conducted by Dr. Vadim Abramov.
In recent years, the Court of Appeals has issued a series of summary opinions in cases where mandatory review occurred due to three-to-two decisions at the Appellate Division concerning the issue of rebutting a defendant's lack-of-causation evidence on a summary judgment motion involving the serious injury threshold. These decisions have confirmed the need for a plaintiff to submit expert medical evidence addressing or contesting the defendant's expert's detailed findings of preexisting conditions (see Lemieux v Horn, 39 N.Y.3d 1108; Franklin v Gareyua, 29 N.Y.3d 925 [2017], affg 136 A.D.3d 464 [1st Dept 2016]; Rivera v Fernandez & Ulloa Auto Group, 25 N.Y.3d 1222 [2015], affg 123 A.D.3d 509 [1st Dept. 2014]; Alvarez v NYLL Mgt. Ltd., 24 N.Y.3d 1191); see also Rosa v Delacruz, 32 N.Y.3d 1060 [2018] ["Plaintiff's responding medical submissions were inadequate to raise a triable issue of fact because they failed to acknowledge, much less explain or contradict, the radiologist's finding. Instead, plaintiff relied on the purely conclusory assertion of his orthopedist that there was a causal relationship between the accident and anterior labrum/rotator cuff tears that he observed (and repaired) during surgery nearly two years after the accident."]). Bound by this case law, this Court is constrained to find that Plaintiff's doctors, Drs. Wasserman and Mansukhani, failed to adequately rebut the extensively analyzed opinions offered by Dr. Eisenstadt.
Review of submissions took place pursuant to 22 NYCRR 500.11.
Furthermore, Plaintiff's medical experts fail to reconcile deficiencies and inconsistencies in their own reports. In all but his final medical exam of Plaintiff, Dr. Wasserman did not compare the range of motion in the right knee to what is normal (see Toure, 98 N.Y.2d 345 [2002]). Similarly, Dr. Mansukhani failed to compare range of motion in Plaintiff's right shoulder to normal degrees in two separate exams (July 31, 2018 and December 13, 2018) (see NYSCEF Doc No. 75, records of New York Heights Medical PC at 8, 15). Additionally, Dr. Mansukhani not only omitted mention of use of a goniometer on her first and final examination of Plaintiff but she also failed to mention causality in numerous examinations mentioned above (see Gersbeck, 176 A.D.3d 684). Plaintiff's medical reports also directly contradict one another without explanation. Dr. Mansukhani recorded Plaintiff's right knee range of motion as complete on the first visit on July 12, 2018, but later claims limitations there on the following examination on July 31, 2018, without explanation (see NYSCEF Doc No. 75, records of New York Heights Medical PC at 4, 8). Dr. Wasserman, however, consistently found limitations to Plaintiff's right knee (but without describing the norms) . Furthermore, Dr, Mansukhani found no limitation to the lumbar spine starting Feb. 1, 2019, despite Dr. Wasserman's consistent finding of limitations to the bilateral lower extremity neurovascular from Oct. 4, 2018 to Jan. 1, 2023. (See McLoud v Reyes, 82 A.D.3d 848 [2d Dept. 2011] [Plaintiff's doctor failed to explain or reconcile inconsistencies in findings of his and Plaintiff's other doctors]).
In light of the foregoing, Plaintiff has failed to adequately rebut Defendant's prima facie case with respect to the permanent consequential limitation and significant limitation categories of serious injury. As noted above, it certainly did not establish injuries falling within the fracture and permanent loss of use categories. Plaintiff did not even submit an affidavit to rebut her deposition testimony which established that she did not sustain a medically determined injury preventing her from performing substantially all of the material acts which constituted her usual and customary daily activities within 90 out of 180 days following the accident.
Conclusion
On this motion for summary judgment, Defendants made out their prima facie case that Plaintiffs' alleged injuries were not serious as defined in Insurance Law § 5102 (d), as required by Insurance Law § 5104 (a) as Defendants established a lack of proximate causation. Plaintiff's evidence submitted in opposition to the motion failed to adequately rebut Defendants' prima facie case. There are no material issues of fact regarding the issue of proximate causation.
Defendants' argument regarding a gap in treatment is academic in light of its establishing a prima facie case of lack of serious injury and Plaintiff's failure to adequately rebut it. In any event, Defendants are correct that there is an unexplained gap in Plaintiff's medical evidence between September 6, 2019 (an examination report of Dr. Mansukhani) (see NYSCEF Doc No. 75, records of New York Heights Medical PC at 29-31) and December 27, 2022 (final examination report of Dr. Mansukhani) (see NYSCEF Doc No. 74, Dr. Stella Mansukhani's final report at numbered pp 1-2). In terms of permanence of any conditions, Plaintiff has thereby failed to demonstrate an issue of fact (see Pommels v Perez, 4 N.Y.3d 566 [2005]; Kearse v New York City Tr. Auth., 16 A.D.3d 45 [2d Dept. 2005]; Villalta v Schechter, 273 A.D.2d 299 [2d Dept. 2000]; cf. Martinez v New York City Transit Authority, 212 A.D.3d 724 [2d Dept. 2023]; Novembre v Punnoose, 211 A.D.3d 961 [2d Dept. 2022]).
Likewise, Plaintiff failed to demonstrate an issue of fact as to her complained of conditions meeting any of the asserted categories of serious injury in her bill of particulars inasmuch as Dr. Wasserman's post-accident treatment examination reports lacked a description of range of motion norms, his final report described a reduced reduction in right knee range of motion of 14% only, his causality statements were inadequately supported, for the most part Dr. Mansukhani's reports (and that of another doctor at her medical facility) lacked a causality finding, and other reports of hers which did include causality statements documented examinations without a goniometer, recorded insignificant range of motion reductions, or contained an insufficient basis for the causality opinions.
Defendants are entitled to judgment dismissing Plaintiffs' complaint as a matter of law on the basis of a failure to maintain an action for serious injuries arising out of negligence in the use of a motor vehicle.
Accordingly, IT IS HEREBY ORDERED that Defendants' motion for summary judgment is GRANTED. The Clerk is directed to enter judgment dismissing the complaint.