Opinion
No. 3155/07.
2009-01-13
Efrain RODRIGUEZ, Plaintiff, v. April L. GRANT and U–Haul Co. of Arizona, Defendants.
Cannon & Acosta, Huntington Station, Attorneys for Plaintiff. McAndrew, Conboy & Prisco by Alissa H. Dien, Esq., Woodbury, Attorneys for Defendants.
Cannon & Acosta, Huntington Station, Attorneys for Plaintiff. McAndrew, Conboy & Prisco by Alissa H. Dien, Esq., Woodbury, Attorneys for Defendants.
DANIEL PALMIERI, J.
This motion by the defendant April L Grant
pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that the plaintiff did not suffer a “serious injury” as that term is defined by Insurance Law § 5102(d) is granted and the complaint is dismissed.
By stipulation of the parties, the action as against U–Haul Co. of Arizona has been discontinued.
The underlying action results from an automobile-pedestrian “knock down” accident on December 31, 2005. The plaintiff contends that the defendant April Grant's U–Haul vehicle ran over his left foot. He was involved in another accident on March 12, 2006, as a driver of an automobile.
Plaintiff alleges that as a consequence of the instant accident he has sustained a “serious injury” within the ambit of Insurance Law § 5102(d).
Serious injury” is defined by § 5102(d) of the New York Insurance Law as follows:
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 sue 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 persons' usual and customary daily activities for not less than ninety days during one hundred and eighty days immediately following the occurrence of the injury or impairment. (Ins. Law § 5102(d)).
In his bill of particulars the plaintiff alleges that he sustained 1) a fracture, 2) a “permanent loss of use” of a body, organ, member function or system, 3) a “permanent consequential limitation of use of a body function or system”, 4) a “significant limitation of use of a body organ or member,” and 5) a non-permanent injury that satisfied the “90/180” category.
The foregoing is based on his claim that he suffered a fracture of the lateral tibial plateau of the left knee; an extensive tear of the medial meniscus of the left knee requiring surgery; a tear of the anterior cruciate ligament of the left knee requiring surgery; a tear of the lateral meniscus of the left knee requiring surgery; sprain of the medial collateral ligament of the left knee requiring surgery; and a left ankle sprain. He also alleged that he was confined to his bed and home for approximately eight months, and to “Day–OP Center located at 110 Willis Avenue, Mineola, New York 11510.” (No time given as to the latter.)
Initially, the defendant has submitted the transcript of the plaintiff's examination before trial, taken on January 11, 2008, in which the plaintiff acknowledged that he was confined to his home for approximately one month, not eight, did not lose any time from work and had no lost earnings as a result of the December 31, 2005 accident. This is sufficient as a prima facie showing that there was no injury satisfying the “90/180” category.
In support of her motion, the defendant also refers to the plaintiff's testimony as proof that the last treatment he had was on July 25, 2006, and that the only restrictions he had has remaining as of the time of his deposition was in the inability to ride a bicycle and to work on his knees.
Also submitted are the following: reports of plaintiff's treating physician, Dr. Joseph Gregorace, D.O.; the operative report of Dov Berkowitz, M.D., who performed arthroscopic surgery with a partial meniscectomy on the plaintiff's left knee on March 22, 2006; and the affirmed reports of three physicians, two of whom examined the plaintiff on behalf of the defendant and a third who reviewed MRI films taken of the plaintiff.
Craig B. Ordway, M.D., an orthopedic surgeon, examined the plaintiff on February 13, 2008. The only complaint made to him by the plaintiff was pain in the left knee while standing as he was working. Dr. Ordway noted full range of motion to 120 degrees of flexion, which he describes as normal for a patient of plaintiff's age and body habitus, and confirmed by a goniometer. He concluded that the surgery on the knee was not unusual for degenerative changes, and there was no permanent impairment causally related to the accident of December 31, 2005.
Howard B. Reiser, M.D., a neurologist, examined the plaintiff on March 12, 2008. Plaintiff again reported no symptoms other than those associated with the left knee, and left leg. He stated the knee and leg sometimes feel cold and numb, will swell and appeared black and blue. Dr. Reiser performed observation and testing of the plaintiff and found no objective neurological deficits, and no evidence of neurological injury.
A. Robert Tantleff, M.D., a radiologist, reviewed six MRI films taken of the plaintiff on February 11, 2006, before the second accident and before the surgery. He provides a detailed description and findings. He notes that the MRIs were taken only one and one half months after the accident, yet he found no evidence of acute or recent injury/trauma. He supports this finding by describing the absence of any bony contusion, soft tissue swelling, edema or hematosis. He further found no evidence of a cortical bony fracture or dislocation, nor of an acute or traumatic meniscal tear. He concludes that the MRIs revealed left knee advanced degenerative changes unrelated to the December 31, 2005 accident, including degenerative tearing of the medial meniscus, degenerative fraying and possible degenerative tearing of the anterior cruciate ligament. He concludes that these findings “represent longstanding wear-and-tear degenerative changes requiring years and decades to devolop as presented and are unrelated to the date of incident of 12/31/05”.
Given the allegations made in the bill of particulars, the foregoing is sufficient to establish defendant's prima facie showing that the plaintiff did not suffer a “serious injury”. She has presented proof that he suffered no fracture, and that the condition of his knee and the resultant surgery were caused by long-standing degenerative changes and not by the accident. Finally, and as noted above, there is evidence that the plaintiff was not disabled from performing his usual and customary activities for 90 of the first 180 days after the accident. The Court notes that in his deposition the plaintiff testified that he had no problem with the left knee prior to the accident of December 31, 2005. However, this is no more than a subjective statement without any medical support in the record, and thus is not a bar to the establishment of the defendant's prima facie case for summary judgment.
While it is true that a torn knee meniscus can constitute evidence of a serious injury (Pollas v. Jackson, 2 AD3d 700 (2d Dept.2003); Rangel–Vargas v. Vurchio, 289 A.D.2d 92 (1st Dept.2001); D'Amato v. Stomboli, 264 A.D.2d 800 (2d Dept.1999)), the defendant can demonstrate lack of serious injury to the knee by proving that it was not causally related to the subject accident. See, Migliaccio v. Miraku, 56 AD3d 393 (1st Dept.2008); Chan v. Casiano, 36 AD3d 580 (2d Dept.2007); Cf., Urbanski v. Mulieri, 287 A.D.2d 710 (2d Dept.2001). In this case, the proof presented indicates that it was not related.
In opposition, plaintiff has not responded to defendant's proof with regard to the “90/180” category, by affidavit or otherwise. His attorney acknowledges the absence of any evidence of a fracture from the records of his emergency room visit after the accident. He presents the affirmed radiological report of Allan Keil, M.D., noting that an x-ray taken on February 21, 2006 indicated “probable healed fracture with deformity at lateral tibial plateau.” He also submits the affirmed report of Richard Rizzuti, M.D., also a radiologist, who took MRIs of the left knee and reported findings consistent with a tear of the anterior cruciate ligament. However, in neither case did these radiologists make any findings regarding causation, and thus are insufficient to overcome the defendant's proof. Chan v. Casiano, supra. It should be noted that both of these reports were submitted by the defendant, but as indicated did not prevent defendant from making out her prima facie case for the reasons stated.
The plaintiff also submits reports by Dr. Berkowitz and Dr. Gregorace not provided by the defendant. Notwithstanding defendant's contention to the contrary, the reports are affirmed and thus admissible. The former states that the plaintiff had no prior history of problems with the left knee prior to the accident, the latter that there is a causal relationship between the left knee diagnosis and arthroscopy.
However, neither is based on any examination or other competent medical proof that dates before the accident. Thus, as is the case with plaintiff's own testimony at his EBT, these statements are insufficient as proof that the plaintiff was asymptomatic and that the accident caused the tear, or worsened an existing condition. Cf., Jaramillo v. Lobo, 32 AD3d 417 (2d Dept.2006). In addition, there is no explanation as to why surgery would not have been necessary absent the accident, and no proof that the plaintiff now suffers from any permanent disability. Relatedly, there is no explanation as to why the plaintiff has had no treatment since July, 2006, which the record reveals was the last time he was treated by Dr. Gregorace. This also forms a basis for a finding that there was no serious injury. Pommels v. Perez, 4 NY3d 566 (2005); Cadena v. Espinal, 49 AD3d 582 (2d Dept.2008).
Accordingly, the Court finds that the plaintiff has been unable to rebut the defendant's prima facie showing that the plaintiff did not suffer a “serious injury” causally related to the accident of December 31, 2005.
This shall constitute the Decision and Order of this Court.