Opinion
Index No. 618220/2016 Mot. Seq. No. 001-MG
01-23-2019
ELYSE A. RAY, Plaintiff, v. ALEX I. GALLEGO and NATALIE ROSE GALLEGO, Defendants.
PLAINTIFF'S ATTORNEY DELL & DEAN, PLLC DEFENDANTS' ATTORNEY MELISSA A. MARANO, ESQ. RUSSO & TAMBASCO
Unpublished Opinion
Orig. Return Date: 11 /28/2017
Mot. Submit Date: 08/21/2018
PLAINTIFF'S ATTORNEY DELL & DEAN, PLLC
DEFENDANTS' ATTORNEY MELISSA A. MARANO, ESQ. RUSSO & TAMBASCO
PRESENT: HON. MARTHA L. LUFT ACTING JUSTICE SUPREME COURT
DECISION AND ORDER
Martha L. Luft, Judge
Upon the e-filed documents numbered 13 through 31, it is
ORDERED that the motion by the defendants Alex I. Gallego and Natalie Rose Gallego for an order granting summary judgment dismissing the complaint is granted.
This is an action to recover damages for injuries allegedly sustained by the plaintiff Elyse A. Ray as a result of a motor vehicle accident which occurred on May 4, 2015, on Post Avenue, near the intersection with Union Avenue, in Westbury, New York. The accident allegedly happened when a vehicle owned by the defendant Alex I. Gallego and operated by the defendant Natalie Gallego collided with the plaintiffs vehicle as she was attempting to make a left turn. By her complaint, as amplified by her bill of particulars, the plaintiff alleges that, as a result of the accident, she suffered serious injuries, namely a right shoulder tear, and bulging and herniated discs of the cervical and lumbar spine. By order dated January 9, 2019, this Court denied the instant motion as moot, finding that same had been withdrawn by the defendants. However, by order dated January 25, 2019, this Court vacated the January 9 order upon its own motion, finding that such order was issued in error.
The defendants now resubmit their motion for summary judgment dismissing the complaint, alleging that Insurance Law' § 5104 precludes the plaintiff from pursuing a personal injury claim because she did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d). In support, the defendants submit, among other things, transcripts of the plaintiffs deposition testimony, and the affirmed reports of orthopedic surgeon Gary Kelman, M.D., and radiologist Steven M. Peyser, M.D. At the defendants' request, Dr. Kelman conducted an examination of the plaintiff and reviewed medical records related to the injuries alleged in this action, and Dr. Peyser conducted an independent review of the images from magnetic resonance imaging (MRI) examinations of the plaintiffs right shoulder. The plaintiff opposes the motion, arguing that, as a result of the accident, she sustained a "serious injury" as defined by the statute because she suffers from, among other things, restrictions of range of motion in her cervical and lumbar spine. The plaintiff further alleges that these restrictions significantly limit the use of these areas. In opposition, the plaintiff submits several documents, including an affirmation of her attorney, the affirmed report of Fred M. Carter II, M.D., her treating orthopedist, and various records related to her medical treatment following the accident.
Insurance Law § 5102 (d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
A defendant seeking summary judgment on the ground that a plaintiff's negligence claim is barred by the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Beltran v Powow Limo, Inc., 98 A.D.3d 1070, 951 N.Y.S.2d 231 [2d Dept 2012]). When such a defendant's motion relies upon the findings of the defendant's own witnesses, those findings must be in admissible form, such as affidavits and affirmations, and not unsworn reports, to demonstrate entitlement to judgment as a matter of law (see Brite v Miller, 82 A.D.3d 811,918 N.Y.S.2d 349 [2d Dept 2011]; Damas v Valdes, 84 A.D.3d 87, 921 N.Y.S.2d 114 [2d Dept 2011], citing Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692, 694 [2d Dept 1992]). Once a defendant meets this burden, the plaintiff must present proof, in admissible form, which creates a material issue of fact (see Gaddy v Eyler, supra', Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]; Beltran v Powow Limo, Inc., supra).
A plaintiff claiming injury within the "permanent consequential limitation" or "significant limitation" of use categories of the statute must substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitation of movement caused by the injury and its duration (see Schilling v Labrador, 136 A.D.3d 884, 25 N.Y.S.3d 331 [2d Dept 2016]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]; McLoud v Reyes, 82 A.D.3d 848, 919 N.Y.S.2d 32 [2d Dept 2011]). To prove significant physical limitation, a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based on a recent examination or a sufficient description of the "qualitative nature" of the plaintiff's limitations, with an objective basis, correlating the plaintiff s limitations to the normal function, purpose, and use of the body part (see Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]; Toure v Avis Rent A Car Systems, Inc., supra', McEachin v City of New York, 137 A.D.3d 753, 756, 25 N.Y.S.3d 672, 675 [2d Dept 2016]). Proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not sufficient to establish a "serious injury" within the meaning of the statute (see Pommells v Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 384 [2005]; Hayes v Vasilios, 96 A.D.3d 1010, 947 N.Y.S.2d 550 [2d Dept 2012]; Scheker v Brown, 91 A.D.3d 751, 936 N.Y.S.2d 283 [2d Dept 2012]). Further, a plaintiff seeking to recover damages under the "90/180" category must prove the injury is "medically determined," meaning that the condition must be substantiated by a physician, and causally related to the accident (see Pryce v Nelson, 124 A.D.3d 859, 2N.Y.S.3d 214 [2d Dept 2015]; Strenk v Rodas, 111 A.D.3d 920, 976 N.Y.S.2d 151 [2d Dept 2013]; Beltran v Powow Limo, Inc., supra).
Here, the defendants' submissions establish a prima facie case that the alleged injuries to the plaintiffs right shoulder, cervical, and lumbar spine do not constitute "serious injuries" within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra; Beltran v Powow Limo, Inc., supra). The defendants have presented competent medical evidence that none of the plaintiffs alleged injuries fall under the "permanent consequential limitation" or "significant limitation" of use categories of the statute (see Perl v Meher, supra; Schilling v Labrador, supra; Rovelo v Volcy, supra). The affirmed medical report of Dr. Kelman states, in relevant part, that during his examination, no tenderness or spasm was detected upon palpation of the spine and right shoulder, that the plaintiff exhibited normal joint function during range of motion testing of her spine and right shoulder, and that there were no neurological deficits in her lower extremities (see Brite v Miller, supra; Damas v Valdes, supra; Pagano v Kingsbury, supra). Dr. Kelman diagnoses the plaintiff as having suffered sprains of the right shoulder, the cervical, and the lumbar spine, and he concludes that these conditions have resolved. In addition, by his affirmed report. Dr. Peyser finds that the MRI images of the plaintiffs right shoulder, which were obtained about eleven months after the subject accident, do not show evidence of acute traumatic injury. Dr. Peyser concludes that the hypertrophic change of the acromioclavicular joint and focal bursal surface tear are evidence of pre-existing degenerative joint disease, which are not causally related to the subject accident, and that these films show no evidence of post-traumatic injury (see Perl v Meher, supra, at 218-219; Schilling v Labrador, supra; Gouvea v Lesende, 127 A.D.3d 811,6 N.Y.S.3d 607 [2d Dept 2015]). Moreover, through the plaintiffs own deposition testimony that she missed only four to five days from work following the accident, the defendants established, prima facie, that the plaintiff did not suffer injury within the "90/180-days" category of the statute (see Pryce v Nelson, supra; Strenk v Rodas, supra; Beltran v Powow Limo, Inc., supra).
The defendants having met their initial burden on the motion, the burden shifted to the plaintiff to raise a triable issue of fact (see Gaddy v Eyler, supra; Zuckerman v City of New York, supra; Beltran v Powow Limo, Inc., supra). In opposition, the plaintiff submits various medical records and the affirmed report of Dr. Carter. Initially, the Court notes that the majority of the various medical records submitted by the plaintiff were not considered in the determination of this motion because, although certified as "true and accurate copies of the plaintiffs medical records by her treating physicians (see CPLR 4518 [c]), they are unsworn and unaffirmed, and therefore, not in admissible form (see Grasso v Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178 [1991]; Irizarry v Lindor, 110 A.D.3d 846, 973 N.Y.S.2d 296 [2d Dept 2013]; McLoud v Reyes, supra', Washington v Mendoza, 57 A.D.3d 972, 871 N.Y.S.2d 336 [2d Dept 2008]). By his affirmed report. Dr. Carter concludes, among other things, that the plaintiff sustained a serious injury to her cervical and lumbar regions of her spine as a result of the subject accident, resulting in significant limitation of its use. Dr. Carter further affirms that he performed range of motion testing of these areas during a recent examination of the plaintiff, and that such examination showed limitations of movement in these regions. However, as Dr. Carter did not begin to treat the plaintiff until May 2016, about one year after the accident, his report fails to provide results of a contemporaneous examination. As Dr. Carter's report fails to demonstrate the duration of the claimed range of motion limitations in the plainti ff s cervical and lumbar spine, it is speculative as to causation of same, and thus it is insufficient to raise a triable issue of fact (see Perl v Meher, supra, at 217-218; Sukalic v Ozone, 136 A.D.3d 1018, 26 N.Y.S.3d 188 [2d Dept 2016]; Griffiths v Munoz, 98 A.D.3d 997, 950 N.Y.S.2d 787 [2d Dept 2012]). As the plaintiffs submissions fail to present admissible evidence of her alleged limitations in her range of motion in the cervical and lumbar spine, and they are insufficient to demonstrate that these alleged limitations are causally related to the subject accident, she fails to rebut the defendant's prima facie showing that she did not suffer a "serious injury" within the meaning of the statute (see Insurance Law § 5102 [d]; Perl v Meher, supra', Pommells v Perez, supra', McLoud v Reyes, supra).
In light of the foregoing, the defendants' motion for summary judgment dismissing the complaint is granted.