Opinion
Index No. 152988/2020
11-15-2022
Jorge Rangel, Plaintiff, v. Jhimi Lama, Defendant.
For Movant Defendant: Colleen Shea, Esq., Carol S. DiBari, Esq., Baker McEvoy & Moskovits For Plaintiff: Brooke Lombardi, Esq., Subin Associates, LLP
Unpublished Opinion
For Movant Defendant: Colleen Shea, Esq., Carol S. DiBari, Esq., Baker McEvoy & Moskovits
For Plaintiff: Brooke Lombardi, Esq., Subin Associates, LLP
James G. Clynes, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 47 were read on this motion to/for JUDGMENT - SUMMARY.
In this action for personal injury, defendant, Jhimi Lama, moves for an order, pursuant to CPLR 3212, grating him summary judgment and dismissal of the complaint on the grounds that there are no triable issues of fact, in that plaintiff, Jorge Rangel, cannot meet the serious injury threshold requirement as required under Insurance Law §§ 5104 (a) and 5102 (d).
Plaintiff opposes the motion.
For the reasons set forth the motion is denied.
Background
Plaintiff commenced this action to recover damages for personal injuries he alleges were sustained in an automobile accident, which occurred on or about August 12, 2017, on First Avenue at or near its intersection with East 60th Street, in the County, City and State of New York (the accident). Plaintiff was a passenger in the car owned and operated by nonparty Amelia Murillo Rangel (verified complaint, ¶¶ 1-2, NYSCEF Doc. No. 1). Defendant is the title owner and operator of the other vehicle involved in the accident (id. at 3-7).
Specifically, according to the Verified Bill of Particulars (BP), plaintiff alleges that on August 12, 2017 at approximately 10:00 p.m., defendant's vehicle came into contact with the vehicle in which plaintiff was a passenger (BP, ¶ 5,6). At the time, plaintiff's wife, who was driving the vehicle, was in the left lane so that when they approached the corner, they could make a left turn to get on to the 59th Street bridge from 1st Avenue (plaintiff dep at 13-15, 23, NYSCEF Doc. No. 27). Plaintiff testified that traffic was intense, and his wife was driving no more than 25 miles per hour (id. at 16, 18). He testified that the other car impacted the front right passenger side of the car (id. at 16-17, 18-19) and that the two vehicles remained stopped in place. Plaintiff was at the scene of the accident for about an hour before he left (id. at 17). He did not to go the hospital as a result of the accident (BP at ¶11), but he was confined to bed for three days following the accident and was home for approximately three months after the accident (id. at 12).
Plaintiff testified that upon impact his "left knee impacted the lever used to shift the gear" (plaintiff dep at 17). He began to experience a lot of pain, and due to the seat belt restraint, he also "started experiencing pain in [his] neck and all over [his] body" (id.). The police came to the scene about 45 minutes to an hour later (id. at 18). Plaintiff was in the car the entire time, as he was in shock (id.). Plaintiff's wife got out of the car and argued with the driver (id.). Plaintiff refused an ambulance when asked (id. at 21). After the police took a report, plaintiff's wife left the scene of the accident, and they went back home (id. at 23-24).
The accident took place on a Saturday, that Monday, plaintiff went to work (id. at 24). He worked that first week but began experience pain in his neck, back and knees (id. at 25).
As a result of the accident, plaintiff alleges that he sustained an injury to his left knee, which required a cortisone injection, performed on May 10, 2018, with a recommendation for an arthroscopy and synovectomy; injury to the lumbar and cervical spine, including disc herniations, hypertrophy throughout the lumbar spine and chronic post-traumatic lumbago and cervicalgia secondary to the strain/sprain injury to the lumbar and cervical spine (BP at ¶10). In addition, plaintiff suffers post-traumatic dorsalgia secondary to the strain/sprain injury with concomitant radiculaglgia and myofasciitis, as well as chronic-post traumatic cephalgia (id.).
Plaintiff saw chiropractors in the same practice as a result of his injuries and he also sought medical treatment from Dr. Dassa, an orthopedist, who he saw three to five times (plaintiff dep at 35-36). Dr. Dassa sent plaintiff for a study on his knee, and after testing, determined that plaintiff needed injections (id. at 37). Plaintiff refused the injections given his hypothyroidism and heart conditions (id.). He testified that no doctor has given him any injection since the accident (id.). He testified that he has never had a cortisone injection to his left knee (id. at 42). Plaintiff could not recall the name of the second orthopedic surgeon he saw, but that he saw him about five times (id. at 38). He last saw him in December of 2017 or January 2018 (id. at 38-39).
Plaintiff had seen his current chiropractor for another car accident he had in 1993 (plaintiff dep at 26-27). In his prior accident he sustained injuries to his shoulders and legs (id.). In 1999, he was involved in another car accident where his wife was driving, and he sustained injuries to his shoulder (id. at 29). In both cases, he brought a lawsuit, and the cases were settled (id. at 28, 29). In 2012, plaintiff was involved in another car accident in which he was the driver (id. at 31). Plaintiff sustained injuries to his neck and back (id. at 31-32). Again, plaintiff filed a lawsuit which was ultimately settled (id. at 31).
Plaintiff applied for social security disability in January 2018 due to his heart condition and his car accident, which was approved in March 2018 (id. at 39). He receives $1,100 per month (id.). Plaintiff testified that as a result of the accident, and the pain he suffers, he was not able to return to work (id. at 40). He has to take Advil or ibuprofen daily for his neck and pack pain (id. at 40, 42).
Orthopedic Report of Dr. Pierce J. Ferriter, M.D.
On August 19, 2021, Dr. Pierce J. Ferriter, M.D., a board-certified orthopedic surgeon, performed an examination of plaintiff at his New York office (August 19, 2021 ortho report, NYSCEF Doc. No. 28). Plaintiff refused to provide his accident history, so Dr. Ferriter obtained said information from the verified bill of particulars (id.). Plaintiff did not disclose any details of his past medical history, prior or subsequent accidents or injuries, any surgeries, or current medications he may be taking (id.). Though plaintiff admitted he did not take any medications prior to the examination (id.).
Upon immediate observation, Dr. Ferriter observed that plaintiff "walk[ed] into the exam room with a normal gait and posture. No limp or foot drop was present. No brace or assistive device was used. The claimant ascends and descends examination table without difficulty" (id.). Dr. Ferriter examined his range of motion both subjectively, movements of plaintiff, and objectively, using a hand-held goniometer (id.). Dr. Ferriter performed an orthopedic examination of the plaintiff's cervical spine, lumbar spine and left knee which indicated"
"no findings which would result in orthopedic limitations in the use of the body parts examined. The examinee is capable of functional use of the examined body parts for normal activities of daily living as well as usual daily activities. The claimant was not employed at the time of the accident. There is no disability or permanency" (id.).
Radiologist Report of Dr. Audrey Eisenstadt, M.D.
Dr. Eisenstadt, a licensed radiologist, reviewed radiographs of the cervical spine which had been taken on September 12, 2017 (January 5, 2022 radiology report; NYSCEF Doc. No. 29). Based on the radiographs of the lateral, AP and an open-mouth view of plaintiff's cervical spine, Dr. Eisenstadt concluded that there was:
"a chronic loss of vertebral height at the C6 vertebral level associated with anterior osteophyte formation at the C6-7 level. No cortical disruption to indicate a compression fracture is noted. Anterior osteophyte formation is also seen at the C3-4 and C5-6 intervertebral disc levels. These bony productive changes are well over six months in development and have no traumatic etiology. No compression deformity or fracture of the posterior spinous process is seen, a clay shoveler's fracture. Loss of disc space height at the C6-7 level is noted. This loss of disc height indicates disc degeneration which involves a drying out and loss of disc substance. This loss of disc substance is over six months in development and has no association to the [accident]. No soft tissue injury is noted and no acute or recent posttraumatic changes are seen" (id.).
Plaintiff's Medical Reports
Report of Dr. Kevin H. Weiner
Plaintiff submits the report of Dr. Kevin H. Weiner, a board-certified physical medicine and rehabilitation pain management physician, dated February 25, 2022 (NYSCEF Doc. No. 38) in support of plaintiff's position. According to Weiner, plaintiff complained of neck pain, lower back pain and left knee pain, with a buckling sensation when he walks and neck pain radiating to the upper extremities (id.). Dr. Weiner reviewed plaintiff's medical records including:
• a 9/12/17 x-ray of the cervical spine, which shows an abnormal narrowing of the C6-C7 intervertebral disk space and reversal of the cervical lordosis, which may be secondary to the presence of pain or muscle spasm;
• 9/12/17 x ray of the thoracic spine, which reveals no evidence of fracture;
• 9/12/17 x-ray of the lumbar spine which reveals mild narrowing of the L5-S1 intervertebral disk space;
• An x-ray of the left knee which revealed no evidence of fracture dislocation;
• 1/17/2018 CT of the lumbar spine was performed revealing left narrow foraminal disk herniation at L3-L4 and L4-L5 with moderate narrowing of the left neuroforamen and mild facet hypertrophy throughout the lumbar spine.
• 1/17/18 CT of the cervical spine reveals left paracentral disk herniation with mild narrowing of the spinal canal, mild anterior wedging of C5 and C6 vertebral bodies most likely related to remote injury. No evidence of acute fracture. Reversal of the cervical lordosis. Mild degenerative changes throughout the cervical spine with multilevel mild narrowing of the spinal canal neuroforamen.
• Medical records from Lexington Chiropractic Care and from Dr. Dassa who stated that the patient has a clinical diagnosis of meniscal tear, but due to the fact that he has a defibrillator only submitted to MRIs of the left knee, to which he received a steroid injection and was recommended for arthroscopy.
Dr. Weiner then objectively performed his own evaluation of plaintiff using a handheld goniometer. The range of motion was limited in the cervical spine with the following findings: flexion, extension, lateral flexion and rotation were all below normal range with triggers in the upper trapezius, serratus posterior and rhomboid, as well as increased pain with scapular elevation and retraction (id.). In the upper extremities there was full range of motion, and he had a negative Tinel's and Phalen's. Motor strength was 5:5 with sensation intact (id). There was pain along the iliocostalis thoracis but no objective measurements were taken (id.). As for the lumbar spine, plaintiff had limited range of motion with the flexion, extension and lateral bend on the right and left all below normal range. There were triggers in the gluteus minimus and maximus and pain along the quadratus lumborum. As to the lower extremities, plaintiff's left knee was limited to 0 to 95 degrees, normal is 150 degrees, as well as pain.
Dr. Weiner's impression based on his review of medical records and examination of plaintiff is that there is a post traumatic left medial meniscus tear with limited range of motion to the left knee, post-traumatic disc herniation at L3-L4 and L4-L5 with limited range of lumbar spine motion, and post-traumatic disc herniation at C5-C6 with limited range of cervical motion. Dr. Weiner opines that it is his"
"opinion with the reasonable degree of medical certainty that based on the above, the injuries to his cervical spine, lumbar spine and left knee are causally related to his accident on 08/12/2017. It is [his] opinion with the reasonable degree of medical certainty [plaintiff] has sustained a permanent disability to his cervical spine, lumbar spine, and left knee for which likely future surgery will be medically necessary to treat his pain" (id.).
April 13, 2018 report by Dr. Dassa
Plaintiff submits the letter of board-certified orthopedic surgeon, Gabriel L. Dassa, D.O. dated April 13, 2018, at which time noticeable swelling of the left knee as compared to the right was observed upon inspection (NYSCEF Doc. No. 41). And the range of motion of the left knee was 0 to 115 degrees as it had been at the May 10, 2018 appointment (id.; NYSCEF Doc. No. 40). There was noticeable tenderness over the medial joint of medial meniscus, lateral joint of lateral meniscus and patellofemoral joint (id.). Dr. Dasso's prognosis was "guarded" (id.).
Dr. Gabriel L. Dassa Letter of Medical Necessity dated May 2, 2018
Plaintiff also submits the letter of Dr. Dassa dated May 2, 2018 (NYSCEF Doc. No. 39) which states that plaintiff came to him for evaluation of pain in his left knee post motor vehicle accident which occurred on August 12, 2017, nearly nine months after the accident (id.). Plaintiff complained that his pain was getting progressively worse in the cervical and lumbar spine, and had been receiving care from Dr. Dunlap, a chiropractor (id.). Plaintiff stated that since his accident he has been experiencing pain in the left knee with stiffness and burning, rose getting up from a seated position and going up and down stairs. Plaintiff "states that he never had an MRI performed on his left knee because [he] has contraindication of cardiac defibrillator and states that he has been experiencing worsening pain with clicking in the left knee" (id.). Dr. Dassa stated that plaintiff "requires left knee arthroscopic surgery, synovectomy to eradicate the... effusion and inflamed synovial tissue as well as left knee meniscectomy as well as surgical assistant, post operative CPM and cryotherapy" "to improve [plaintiff's] quality of life" (id.).
Dr. Gabriel L. Dassa report dated May 10, 2018
Dr. Dassa reports that plaintiff came to see him due to persistent pain in the left knee and sought advice about a cortisone injection for his knee, which was ultimately injected that day (NYSCEF Doc. No. 40). Plaintiff advised that he would like to proceed with arthroscopic surgery if there was no improvement after he cortisone injection (id.). He was to return for follow-up in six weeks (id.).
IME Performed on May 15, 2018
On May 15, 2018, plaintiff presented from an independent medical evaluation (IME) before Jeffrey F. Lakin, M.D., PA, a licensed orthopedist, for examination (NYSCEF Doc. No. 42). The independent medical examiner reviewed the following: Notes of Lexington Chiropractic from September 1, 2017 to March 2, 2018. Notes of Dr. Robert Hall dated October 30, 2017. Notes of Dr. Scilaris dated October 19, 2017. Report New York State Division of Motor Vehicles for motor vehicle accident dated August 12, 2017. Police report dated August 12, 2017. Notes of Dr. Dassa dated April 13, 2018 and May 2, 2018. X-ray report from NJIN of Clifton for the left knee dated November 3, 2017. X-ray report of the left knee from Cliffside Park Imaging dated September 12, 2017. X-ray report of the lumbar spine from Cliffside Park Imaging dated September 12, 2017. X-ray report of the thoracic spine from Cliffside Park Imaging dated September 12, 2017. X-ray report of the cervical spine from Cliffside Park imaging dated September 12, 2017. CAT scan report of the lumbar spine from American Diagnostic Imaging of New Jersey dated January 17, 2018. CAT scan report of the cervical spine from American Diagnostic Imaging of New Jersey dated January 17, 2018. Dr. Lakin performed a physical evaluation of plaintiff, took his medical history as explained by plaintiff and reviewed the medical records sent to his office, as noted above. Based on this review and examination, Dr. Larkin found:
"(t)he... examination of the cervical and lumbosacral spine is unremarkable, as he is neurologically intact and has no evidence of any cervical or lumbar radiculopathy and has an essentially unremarkable examination of the cervical and lumbosacral spine. The only further treatment needed is physical therapy to the left knee at a frequency of three times a week for four weeks with an orthopaedic [sic] re-evaluation. Again, he did sustain a sprain to the left knee and the only treatment he has had is an injection to the left knee and has had no formal physical therapy to the left knee, and in this setting, the claimant needs further treatment to the left knee including physical therapy three times a week for four weeks with an orthopaedic [sic] re-evaluation as he has some residual symptomatology to the left knee including tenderness and pain as well as decreased motion and decreased strength.
No further treatment including diagnostic testing, household help, injections, massage therapy, acupuncture, transportation, medical supplies or equipment is needed with respect to injuries sustained in the motor vehicle accident. Presently, there is no need for any orthopaedic [sic] surgery to the left knee as causally related to the date of loss. Again, he has not had full conservative treatment to the left knee which would include formal physical therapy as he has some residual weakness and decreased strength and, in this setting, formal physical therapy is indicated three times a week for four weeks.
The claimant is not disabled from work. There is no reason why the claimant cannot continue to work and perform his activities of daily living without restrictions"(id.).
Discussion
"It is well settled that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (Pullman v Silverman, 28 N.Y.3d 1060, 1062 [2016], quoting Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; see also CPLR 3212 [b]). The burden is a heavy one; the facts must be viewed in favor of the nonmoving party and every favorable inference must be drawn in the nonmoving party's favor (Sherman v New York State Thruway Auth., 27 N.Y.3d 1019, 1021 [2016]). Once such a prima facie showing has been made, the burden shifts to the non-moving party to "to establish the existence of material issues of fact which require a trial of the action" (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012] [internal quotation marks and citation omitted]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise an issue of fact (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]).
Pursuant to the Comprehensive Motor Vehicle Insurance Reparation Act of 1974 (now Insurance Law § 5101, et seq. - the "No Fault" statute), a party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the categories of "serious injury" as set forth in Insurance Law § 5102 (d) (Marquez v New York City Tr. Auth., 259 A.D.2d 261 [1st Dept 1999]).
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 function or system; or a medically determined injury or impairment of a on-permanent nature which prevents the injury or 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."
It is indisputable that five of the nine categories of serious physical injuries discussed by Insurance Law § 5102 (d) are not applicable herein as there in no allegation of death, dismemberment, significant disfigurement, fracture or a loss of a fetus. Therefore, the court must determine if the plaintiff's injuries constitute either: (1) permanent loss of use of a body organ, member, function or system; (2) a permanent consequential limitation of use of a body function or system; (3) a significant limitation of use of a body function or system; and (4) a medically determined injury or impairment of a nonpermanent 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.
Serious injury is a threshold issue, and thus, a necessary element of a plaintiff's prima facie case (Reid v Brown, 308 A.D.2d 331,332 [1st Dept 2003]; Insurance Law § 5104 [a]). In order to satisfy the statutory threshold, the plaintiff must submit competent objective medical evidence of his or her injuries, based on the performance of objective tests (Shinn v Catanzaro, 1 A.D.3d 195, 197-198 [1st Dept 2003]). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (Gaddy v Eyler, 79 N.Y.2d 955, 957 [1992]).
Specifically, a plaintiff must show proof of: (1) contemporaneous treatment-quantitative or qualitative-establishing that the plaintiff's injuries were causally related to the accident; and (2) a recent examination establishing the permanency of the injuries (see Perl v Meher, 18 N.Y.3d 208, 217-218 [2011] [no requirement for contemporaneous quantitative measurements, treating doctor may observe and record plaintiff's symptoms in qualitative terms, and later do more specific quantitative measurements in anticipation of litigation]). A defendant can meet the initial burden of establishing a prima facie case of the nonexistence of a serious injury by submitting the affidavits or affirmations of medical experts who examined the plaintiff and opined that plaintiff was not suffering from any disability or consequential injury resulting from the accident (see Gaddy, 79 N.Y.2d at 956-957; Brown v Achy, 9 A.D.3d 30, 31 [1st Dept 2004]; s ee also Junco v Ranz i, 288 A.D.2d 440, 440 [2d Dept 2001] [defendant's medical expert must set forth the objective tests performed during the examination]). A defendant can also demonstrate that plaintiff's own medical evidence does not indicate that plaintiff suffered a serious injury and that the injuries were not, in any event, causally related to the accident (see Franchini v Palmieri, 1 N.Y.3d 536, 537 [2003]). A defendant can additionally point to plaintiff's own sworn testimony to establish that, by plaintiff's own account, the injuries were not serious (see Arjona v Calcano, 7 A.D.3d 279, 280 [1st Dept 2004]; Nelson v Distant, 308 A.D.2d 338, 339 [1st Dept 2003]).
In order to rebut the defendant's prima facie case, the plaintiff must submit objective medical evidence establishing that the claimed injuries were caused by the accident, and "provide objective evidence of the extent or degree of the alleged physical limitations resulting from the injuries and their duration" (Noble v Ackerman, 252 A.D.2d 392, 394 [1st Dept 1998]; see also Toure v Avis Rent a Car Sys., 98 N.Y.2d 345, 350 [2002]). Plaintiff's subjective complaints "must be sustained by verified objective medical findings" (Grossman v Wright, 268 A.D.2d 79, 84 [2d Dept 2000]). Such medical proof should be contemporaneous with the accident, showing what quantitative restrictions, if any, plaintiff was afflicted with (see Nemchyonok v Ying, 2 A.D.3d 421, 421 [2d Dept 2003]). The medical proof must also be based on a recent examination of plaintiff, unless an explanation otherwise is provided (see Bent v Jackson, 15 A.D.3d 46, 48 [1st Dept 2005]; Nunez v Zhagui, 60 A.D.3d 559, 560 [1st Dept 2009]).
To the extent that plaintiff alleges a "serious injury" based on cervical and lumbar sprain/strain or chest wall contusion, such injuries do not, as a matter of law, constitute a serious injury (see Lebron v Camacho, 251 A.D.2d 295, 295 [2d Dept 1998] [mild sprains to the lumbar or cervical spine are insignificant within the meaning of Insurance Law § 5102[d] and do not constitute a serious injury]; Maenza v Letkajornsook, 172 A.D.2d 500, 500 [2d Dept 1991] ["allegations of sprains and contusions are insufficient to establish that the plaintiff sustained a 'serious injury' as defined in the statute"]).
Further, a plaintiff's medical evidence in opposition to summary judgment must be presented by way of sworn affirmations or affidavits (s ee Pagano v Kingsbury, 182 A.D.2d 268, 270 [2d Dept 1992]; Bonsu v Metropolitan Suburban Bus Auth., 202 A.D.2d 538, 539 [2d Dept 1994]). Submissions from a chiropractor must be by affidavit because a chiropractor is not a medical doctor who can affirm pursuant to CPLR 2106 (see Shinn v Catanzaro, 1 A.D.3d 195, 197 [1st Dept 2003]). Moreover, an expert's medical report may not rely upon inadmissible medical evidence, unless the expert establishes serious injury independent of said report (see Friedman v U-Haul Truck Rental, 216 A.D.2d 266, 267 [2d Dept 1995]; Rice v Moses, 300 A.D.2d 213, 213 [1st Dept 2002]).
A plaintiff who claims a serious injury based on a "permanent loss" must establish that the injury caused a "total loss of use" of the affected body part (see Oberly v Bangs Ambulance, Inc., 96 N.Y.2d 295, 297 [2001]).
The "permanent consequential limitation" category requires a plaintiff to establish that the injury is "permanent," and that the limitation is "significant" rather than slight (see Altman v Gassman, 202 A.D.2d 265, 265 [1st Dept 1994]). Permanency must be determined by a medical profession, requiring an objective basis for the medical determination (s ee Dufel v Green, 84 N.Y.2d 795, 798 [1995]). Mere repetition of the word "permanent" in the physician's affirmation or affidavit is insufficient (see Lopez v Sentore, 65 N.Y.2d 1017, 1019 [1985]).
Likewise, the "significant limitation" category requires a plaintiff to demonstrate that the injury has limited the use of the afflicted area in a "significant" way rather than a "minor, mild or slight limitation of use" (Licari v Elliott, 57 N.Y.2d 230, 236 [1982]). In evaluating both "permanent consequential limitation" and "significant limitation," "[w]hether a limitation of use or function is 'significant' or 'consequential'... relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel, 84 N.Y.2d at 798). A "'permanent consequential limitation' requires a greater degree of proof than a 'significant limitation,' as only the former requires proof of permanency" (Altman, 202 A.D.2d at 265).
Under the 90/180-day category, a plaintiff must show that he or she has been unable to perform substantially all of his or her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury (see Licari, 57 N.Y.2d at 236). The words "substantially all" mean that the person has been "curtailed from performing his usual activities to a great extent rather than some slight curtailment" (id.). A physician's statement that is too general and nonspecific does not support a 90/180-day claim (see e.g. Morris v Ilya Cab Corp., 61 A.D.3d 434, 435 [1st Dept 2009]; Gorden v Tibulcio, 50 A.D.3d 460, 463 [1st Dept 2008]).
"[E]ven where there is objective medical proof, when additional contributing factors interrupt the chain of causation between the accident and claimed injury-such as a gap in treatment, an intervening medical problem or a preexisting condition-summary dismissal of the complaint may be appropriate" (Pommels v Perez, 4 N.Y.3d 566, 572 [2005]). Accordingly, a plaintiff is required to offer a reasonable explanation for a gap in treatment (id. at 574; Delorbe v Perez, 59 A.D.3d 491, 492 [2d Dept 2009]; DeLeon v Ross, 44 A.D.3d 545, 546 [1st Dept 2007]; Wadford v Gruz, 35 A.D.3d 258, 258-59 [1st Dept 2006]; Colon v Kempner, 20 A.D.3d 372, 374 [1st Dept 2005]).
Defendant met his prima facie burden of demonstrating that plaintiff did not sustain a serious injury to his cervical and lumbar spine through the affirmations of Dr. Ferriter and Dr. Eisenstadt who found the injuries to plaintiff's cervical and lumbar spine were degenerative and that there was no causality between the injuries to the back and the August 12, 2017 accident (Rabb v Mohammad, 132 A.D.3d 527 [1st Dept 2015]) [holding defendants met their prima facie burden by submitting a radiologist's affirmation who opined that the MRI of the plaintiff's spine showed disc bulge of degenerative origin]; Amaro v Am. Med. Response of NY, Inc., 99 A.D.3d 563 [1st Dept 2012] [holding, in part, defendants met their prima facie burden by submitting radiologist report who opined MRI's of Montalvo's lumbar spine were degenerative]). Additionally, Defendant met his prima facie burden of showing that plaintiff did not sustain a serious injury to his left knee through the affirmations of Dr. Eisenstadt who stated that plaintiff's left knee was unremarkable and found no causal relation between plaintiff's alleged injuries with the accident (Abreu v Mille r, 60 Misc.3d 1216 [A], 2018 NY Slip Op 51151[U] [Sup Ct, Bronx County 2018]) and Dr. Ferriter who with a number of objective tests found full range of motion without evidence of swelling, effusion, erthema or crepitus (s ee e.g. Brownie v Redman, 145 A.D.3d 636, 637 [1st Dept 2016] ["Defendants made a prima facie showing that plaintiff did not sustain a serious injury to her left knee by submitting the report of an orthopedist, who found no objective evidence of disability and full range of motion"]). Moreover, the reviews conducted by these doctors of plaintiff's Bill of Particulars, MRIs, and the treating physicians' reports were insufficient to establish that plaintiff had sustained a serious injury under the 90/180 category of Insurance Law § 5102 (d), thus shifting the burden to plaintiff to establish triable issues of fact with respect to these claims (see Nelson v Distant, 308 A.D.2d at 339).
In opposition, plaintiff raises triable issues of fact as to whether he suffered permanent or significant injuries causally related to the underlying automobile accident, by submitting the medical report of the orthopedic physician who examined and treated him in the aftermath of the accident, quantifying persistent and significant limitations of movement, to his back and left knee, as well as relevant portions of his deposition (see Reyes v Se Park, 127 A.D.3d 459, 460 [1st Dept 2015]).
Plaintiff's submissions are sufficient to raise triable issues of fact as to whether he sustained significant and consequential limitations of use as a result of the accident (see Gordon v Hernandez, 181 A.D.3d 424, 425 [1st Dept 2020]; De Los Santos v Basilio, 176 A.D.3d 544, 545 [1st Dept 2019]; Hamilton v Marom, 178 A.D.3d 424, 425 [1st Dept 2019]).
Although defendant argues that the medical evidence he presented, consisting of Dr. Ferriter's report shows that "plaintiff's allegations of injury were not caused by this accident, that no trauma was sustained," and that any injuries did not qualify under the statute, Dr. Ferriter admits that he did not review any medical records of plaintiff as plaintiff refused to provide his medical history, but Dr. Ferriter did review plaintiff's Bill of Particulars (see NYSCEF Doc. No. 19, defendant's affirmation in support, ¶ 17; see also NYSCEF Doc. Nos. 34, 36). Importantly, plaintiff's physician, Dr. Weiner, makes a causal connection between the accident and plaintiff's injuries. This is sufficient to raise an issue of fact, requiring denial of defendant's motion (see Massillon v Regalado, 176 A.D.3d 600, 601 [1st Dept 2019] [although defendant's radiologist opined that the conditions were degenerative, plaintiff refuted with MRI and plaintiff's treating doctors' opinions that conditions were causally related to the accident]; Montoya, 176 A.D.3d at 582 [where no reported prior injury and onset of symptoms shortly after accident, plaintiff's treating doctor's opinion that conditions were causally related to the accident sufficiently raised an equally plausible cause of the injuries]).
With respect to the 90/180 days category of serious injury, to make a prima facie case, the defendant must either point to medical evidence that the plaintiff did not sustain a medically determined injury that prevented him or her from performing substantially all of his or her customary daily activities within the relevant period (see Fernandez v Hernandez, 151 A.D.3d 581, 582 [1st Dept 2017]; Frias v Gonzalez-Vargas, 147 A.D.3d 500, 502 [1st Dept 2017]), or to evidence that plaintiff actually performed his usual and customary activities (see Bianchi v Mason, 179 A.D.3d 567, 568 [1st Dept 2020]; Olivare v Tomlin, 187 A.D.3d 642, 643 [1st Dept 2020]).
Although defendant argues that his "proof ruled out the 90/180-day category of the statute" because "this category requires proof that plaintiff was medically prevented from performing 'substantially all' of [his] usual and customary activities for the requisite period" (see NYSCEF Doc. No. 19, defendant's affirmation in support, ¶ 24), Dr. Weiner indicates that "[d]espite a brief attempt to return to work for no more than a few weeks, since the accident, [plaintiff] has been unable to resume his employment... [and] is totally disabled even from sedentary work as he is on Social Security Disability" (NYSCEF Doc. No. 38). As a result, the motion with respect to this prong also is denied (see Robinson v Joseph, 99 A.D.3d 568, 569 [1st Dept 2012] [finding that defendants "failed to meet their initial burden as to plaintiff's 90/180-day claim, since they relied only on the reports of their medical experts who did not examine plaintiff during the relevant statutory period and did not address plaintiff's condition during the relevant period"]).
Finally, defendant's argument that there was a gap in plaintiff's treatment will not be addressed as, again it was inappropriately raised for the first time on reply, and plaintiff has not had the opportunity to respond (Tadesse v Degnich, 81 A.D.3d 570, 570 [1st Dept 2011] [finding lower court improperly relied on the gap-in-treatment argument, which was raised for the first time in the reply papers]).
Accordingly, it is
ORDERED that the motion by defendant, Jhimi Lama, for summary judgment and dismissal of the complaint based on plaintiff's alleged failure to satisfy the serious injury threshold is denied.
ORDERED that within 30 days of entry, movant shall serve a copy of this Decision and Order upon Plaintiff with notice of entry.
This constitutes the Decision and Order of the Court.