Opinion
Index EF005495-2017
03-26-2019
FRANCISCO ROMAN, Plaintiff, v. CHRISTINA R. BATES and JANICE L. LOVELL, Defendants.
Unpublished Opinion
Present: HON. CATHERINE M. BARTLETT, A.J.S.C.
Catherine M. Bartlett Judge
The following papers numbered 1 to 6 were read on Defendants' motion for summary judgment based upon the absence of a "serious injury" per Insurance Law §5102(d):
Notice of Motion - Affirmation / Exhibits - Expert Affirmations (2) ...................1-4
Affirmation in Opposition / Exhibits ............................................. 5
Reply Affirmation.............................................................6
Upon the foregoing papers it is ORDERED that the motion is disposed of as follows:
This is an action for personal injuries arising out of a motor vehicle accident that occurred on July 30, 2014 when Defendants' vehicle sides wiped Plaintiffs vehicle, in consequence of which the Plaintiffs rearview mirror was dislodged and struck him on die face.
Plaintiff went to St. Luke's Cornwall Hospital after die accident complaining of photophobia. ACT scan of die brain revealed no evidence of acute trauma. ACT scan of the facial bones revealed no evidence of fracture. Visual acuity upon eye examination was 20/20 on the right eye and 20/25 on the left eye. An ocular irrigation was performed with saline and Plaintiff was discharged.
On December 17, 2014, Plaintiff visited his eye doctor, Dr. Kumar. Visual acuity was 20/20 in both eyes. The examination revealed a scar with mild erythema over the left medial canthus; otherwise, the ocular exam was normal. Dr. Kumar recommended ointment and artificial tears as needed for ocular irritation or blurred vision. At a follow-up on May 5, 2015, Plaintiff complained of headaches associated with photophobia and blurred vision. Visual acuity was 20/20 on the right and 20/25 on the left, and the ocular exam was normal. At a June 10, 2015 follow-up for the headaches, an optical coherence tomography (OCT) was within normal limits.
Plaintiffs original Bill of Particulars asserted that as a result of the accident he sustained traumatic brain injury, concussion, corneal abrasions (caused by glass from the mirror), eye contusions, and injuries to his cervical, thoracic and lumbar spine. In a Supplemental Bill of Particulars, Plaintiff withdrew all claims of injury relating to his cervical, thoracic and lumbar spine. At issue, then, are the claimed injuries to Plaintiffs eyes and brain.
Richard Gordon, M.D., the Defendants' expert opthalmologist, conducted an IME on August 30, 2018. Dr. Gordon concluded:
In my medical opinion and based upon my review of the available medical records and today's clinical examination findings, the motor vehicle accident did not cause any permanent injury or scarring that is affecting his vision. Numerous exams from his primary care ophthalmologist support this. He certainly has, by history, evidence of superficial corneal injuries, which appeared to have resolved and are not causing long lasting injuries and require no further treatment. I do not feel his superficial ophthalmic symptoms are related to the accident, most likely related to his underlying condition of
blepharitis, which is adequately treated with conservative measures and steroid ointments as necessary.Plaintiff in opposition has adduced no expert ophthalmologic evidence.
As noted above, the CT scan of Plaintiff s brain revealed no evidence of acute trauma. He never pursued any neuropsychological treatment. Nevertheless, Defendants' expert psychologist conducted a neuropsychological IME on September 11, 2018. His report states:
Dr. DeBenedetto's report was affirmed, not sworn. This was improper, as psychologists are not among the professionals who are authorized by law to affirm under penalty of perjury. See, CPLR §2106; Pascucci v. Wilke, 60 A.D.3d 486 (1st Dept 2009). However, inasmuch as Plaintiff did not obj ect to the admissibility of Dr. DeBenedetto's report, and that report was attested under penalty of perjury, the deficiency was waived and the Court may consider Dr. DeBenedetto's report. See, Scudera v. Mahbubur, 299 A.D.2d 535 (2d Dept. 2002); Pierre v. Young, 39 Misc.3d 1218(A) at *2-*3 (Sup. Ct. Kings Co. 2013).
Mr. Roman's level of intelligence functioning based on current performance on an abbreviated administration of the WAISIV and several tests within the current test battery places him within the average ranee of intelligence. These findings do not differ significantly from expectations of his premorbid level of intelligence based on a consideration of his level of academic and vocational attainment. There has been no decline in overall intelligence ability.
Mr. Roman's overall neurocognitive profile falls within expected or average ability limits with respect to auditory attentional processing, visual memory, expressive-receptive language functioning, visuospatial processing, and motor-functioning.
A mild degree of deficit was noted for executive functions encompassing cognitive flexibility and speed of information processing.
Executive functions encompassing planning/organizational ability and response inhibition reflected a mild degree of impairment Discrete and semantic verbal memory reflected a mild to moderate degree of impairment.
Mr. Roman's psychological profile on mental status examination and on self-support was within normal limits. There was no evidence of psychological symptomatology, emotional distress, or behavioral dysfunction.Concerning the observed cognitive deficits, the report continues:
Mr. Roman's failure on stand-alone measures of response-bias and effort (MVST, TOMM), his failure on all embedded measures of response bias (RSD; Rcg.<FR; Inconsistency in performance within may tests within the test battery; Inconsistent performance across tests in the test battery as well as his failure on an empirical measure of response-bias (degree of cognitive impairment on neuropsychological testing exceeds expectations based on known patterns of response to and recovery from mTBI) invalidates the current neurocognitive test findings as a valid or true estimate of his cognitive abilities and level of cognitive functioning.
The observed cognitive deficits on this evaluation reflect the impact of motivational and functional factors on cognitive performance and do not represent objective, acceptable clinical evidence to support a claim of TBI or the ongoing effects on cognition of TBI. Therefore, there is no objective evidence to support he has any impairment, residual or permanency from my medical standpoint.Plaintiff in opposition has adduced no expert neurological or neuropsychological evidence.
On the evidence before the Court, including the Plaintiffs deposition testimony and medical records, and the expert opthalmological and neuropsychological affirmations of Dr. Gordon and Dr. DeBenedetto, respectively, Defendants established prima facie that (1) other than superficial corneal abrasions, there is no objective medical evidence of injury, and (2) Plaintiff sustained no "serious injury" causally related to the July 30, 2014 motor vehicle accident.
Under the circumstances, it was incumbent on Plaintiff to come forward with expert medical evidence of causally-related "serious injury" within the meaning of Insurance Law §5102(d). His failure to do is perhaps unsurprising, as (1) his own eye doctor's findings were consistently negative and accord with Dr. Gordon's conclusions, and (2) the CT scan of his brain revealed no evidence of acute trauma, and he never sought any neuropsychological treatment." Regardless, the complete and utter absence of any expert medical evidence to counter the findings of Dr. Gordon and Dr. DeBenedetto, Plaintiff has failed to demonstrated the existence of any material issue of fact.
It is therefore
ORDERED, that Defendants' motion for summary judgment is granted, and it is further
ORDERED, that Plaintiffs Complaint is dismissed.
The foregoing constitutes the decision and order of this Court.