Opinion
51271/02.
Decided October 26, 2005.
Upon the foregoing papers, defendants Christian Sanandres (Sanandres) and Ricardo Solano (Solano) move, pursuant to CPLR 3212, for an order dismissing the complaint of plaintiffs Gouton Saha (Gouton), Popy Saha (Popy) and Peu Saha (Peu), an infant by her father and natural guardian, Gouton Saha, on the ground that plaintiffs have not sustained a "serious injury" as such term is defined by Insurance Law § 5102 (d).
Insurance Law § 5102 (d) defines a serious injury as a personal injury which results in: (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of the use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) 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 or customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
Plaintiff (on the counterclaim for indemnification) Gouton cross-moves for an order dismissing the complaint of plaintiffs Popy and Peu, pursuant to CPLR 3212, for their failure to meet the serious injury threshold.
Background
This is an action for property damage and personal injuries allegedly sustained by plaintiffs as a result of a motor vehicle accident which occurred on September 3, 2000 when the vehicle owned by Sanandres and operated by Solano collided with the vehicle owned and operated by Gouton and in which Popy and Peu were passengers. On August 9, 2005, following oral argument, this court issued an order: (1) granting the motion by defendants and the cross motion by Gouton to dismiss the plaintiffs' complaint on the issue of serious injury, but as to Peu Saha only and (2) reserving decision as to defendants' motion as against plaintiffs Gouton and Popy. Gouton's cross motion to dismiss the complaint as to Popy was not resolved. On November 23, 2004, plaintiffs filed their note of issue and certificate of readiness.
Gouton claims, in plaintiffs' verified bill of particulars, the following injuries due to the instant motor vehicle accident:
Herniated disc at L5-S1 indenting the nerve root;
Herniated discs at C3-C4 and C4-C5;
Bulging discs at C5-C6 and C6-C7;
Bulging discs at L3-L4 and L4-L5;
Straightening of the cervical lordosis;
Straightening of the lumbar lordosis;
Cervical radiculopathy;
Lumbosacral radiculopathy;
Cervical sprain/strain;
Lumbar sprain/strain;
Headache;
Depression;
Anxiety;
Fear; and
Emotional upset and shock.
Popy alleges the following injuries as a result of the subject accident:
Herniated disc at L5-S1;
Bulging discs at C3-C4, C4-C5, and C5-C6;
Bulging discs at L3-L4 and L4-L5;
Straightening of the cervical lordosis;
Straightening of the lumbar lordosis;
Cervical radiculopathy;
Lumbosacral radiculopathy;
Cervical sprain/strain;
Lumbar sprain/strain;
Headaches;
Depression;
Anxiety;
Fear;
Emotional upset and shock.
Plaintiffs further claim, in their bill of particulars, that they sustained a "serious injury" in that they suffered a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; and were unable to attend to their usual activities for a period in excess of 90 days during the first 180 days following the accident.
Defendants' Motion
In support of their motion, defendants append, inter alia, a copy of: the summons and verified complaint, verified answer, verified bill of particulars, Gouton's August 9, 2004 deposition testimony, Popy's August 9, 2004 deposition testimony, notices of medical exchange, and the affirmation of an orthopedic surgeon, Martin Wolpin, M.D. Defendants note plaintiffs' claim that they were totally disabled for a period of approximately 15 weeks and that they sustained a permanent injury, a disabling injury for a period in excess of 90 out of the first 180 days following the alleged accident, a significant limitation of use of a bodily function or system; a significant disfigurement; and a permanent consequential limitation of use of a bodily organ and/or member.
Regarding the "90/180" category of serious injury, defendants assert that Gouton testified that he missed two days from work and that he presently works full time as a traffic enforcement officer. They observe that Gouton did not request an ambulance at the scene of the accident, that he sought treatment at Woodhull Hospital on the morning following the accident and then sought treatment at Roosevelt Family Chiropractic one to two weeks thereafter. Defendants note that Gouton was treated there for approximately two months in November 2000, after which time he stopped treatment due to transportation problems. They refer to Gouton's deposition testimony that he sometimes experiences pain in his neck and lower back when he lifts, bends or plays ball. Defendants refer to Dr. Martin Wolpin's January 19, 2005 medical examination of Gouton to show that Gouton advised him that he was no longer under active treatment and that he occasionally has pain in the neck and lower back area, but that it does not really limit him in any activities. Defendants note that Dr. Wolpin's report reflects that Gouton has no problem standing or sitting, that he can walk without any limitation, and that he has no problems performing his routine activities. They point out that Dr. Wolpin concludes that Gouton has full active range of motion in the neck and lower back with no evidence of neurologic impingement or objective orthopedic pathology.
Concerning Popy, defendants refer to her deposition testimony to show that she denied feeling any pain at the accident scene, but that she went to Woodhull Hospital on the day of the accident where she complained of pain in her neck and back. They observe that Popy testified that approximately one week after the accident, she began receiving physical therapy at Roosevelt Family Chiropractic, where she treated two times per week for approximately two months. Regarding the 90/180 category of serious injury, defendants again refer to Popy's testimony to show that she returned to work two weeks after the accident, at which time she was able to perform her regular job. They also note that Popy testified that she was able to perform her usual activities following the accident and that there was never a time when she was unable to perform household duties, such as cooking and cleaning.
Defendants refer to Popy's January 19, 2005 examination by Dr. Wolpin to show that, at that time, she was no longer under active treatment and that she now works as a school crossing guard. They note Dr. Wolpin's report that Popy is able to wash and dress herself and has no problems standing or sitting and performing household activities and that she had full cervical and lumbar motion without restriction of movement of the upper or lower extremities and presented no evidence of root compression.
Defendants further claim that Popy's alleged cervical disc herniations and disc bulge do not constitute either a "permanent injury," a "permanent consequential limitation of use" of a body organ or member, a "permanent loss of use," or a "significant limitation of use of a body function or system."
Gouton's Cross Motion
In his cross motion, Gouton adopts the arguments advance by defendants in their motion.
Discussion of Defendants' Initial Burden and the Shifting Burden
A party moving for summary judgment has the initial burden of demonstrating a prima facie case in favor of summary judgment by coming forward with admissible evidence showing that the cause of action has no merit and eliminating any material issues of fact ( Washington v. Community Mutual Savings Bank, 308 AD2d 444; see GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965).
Here, Dr. Wolpin's affirmed reports indicate that he conducted various range of motion tests on plaintiffs Gouton and Popy and that they exhibited full ranges of motion in their cervical and lumbar spines. Thus, defendants have met their burden of setting forth a prima facie case in favor of summary judgment as to the permanent loss of use of any body organ, member, function or system, permanent consequential limitation of the use of a body organ or member, and significant limitation of use of a body function or system categories of serious injury.
In addition, as regards the 90/180 category of serious injury, defendants have met their burden of establishing a prima facie case by virtue of plaintiffs' deposition testimony. The court notes, in this regard, that Dr. Wolpin's report does not in any way indicate that he was provided with any information showing that plaintiffs were unable to perform their regular activities for not less than 90 days during the 180-day period immediately following the accident and, thus, he had no basis upon which to address this category of serious injury ( compare Nembhard v. Delatorre, 16 AD3d 390).
Once a proponent of a summary judgment motion has shown a prima facie entitlement to summary judgment as a matter of law, the burden of demonstrating the existence of a material issue of fact then shifts to the opposing party ( see Ginty v. MacNamara, 300 AD2d 624). Since summary judgment is the procedural equivalent of a trial, if there is any doubt as to the existence of any triable issues, summary judgment must be denied ( see Museums at Stony Brook v. Village of Patchogue Fire Dept., 146 AD2d 572. Furthermore, all competent evidence must be viewed in a light most favorable to the party opposing the motion ( see B-S Industrial Contractors, Inc. v. Town of Wells, 173 AD2d 1053). However, if plaintiffs are unable to meet this burden, summary judgment will be granted to defendants ( see e.g. Ginty, 300 AD2d 624, 625; Attansio v. Lashley, 223 AD2d 614-615; Sotirhos v. Pinello, 209 AD2d 687, 687-688).
Plaintiffs' Opposition to the Motion
In opposition to the motion, plaintiffs submit affidavits from Gouton and Popy, MRI reports of and affirmations by a radiologist, Dr. Mark Freilich, an affirmed report of a neurologist, Dr. Aric Hausknecht, dated January 14, 2005, Dr. Aric Hausknecht's affirmed addendum report regarding Gouton, Dr. Aric Hausknecht's January 14, 2005 affirmed report regarding Popy, and the medical records and reports from plaintiffs' hospital and treating physicians. Plaintiffs contend that the medical reports that defendants submitted in support of the motion and cross motion are "incompetent and insufficient." They claim that any one of the various injuries plaintiffs sustained as a result of the accident, including herniated and bulging discs and straightening and reversal of the cervical lordosis consistent with muscular spasm, constitute a serious injury pursuant to Insurance Law § 5102 (d).
Plaintiffs maintain that, while Gouton missed about two to three days from work, he returned to work despite being in pain as he would have been fired had he not done so. They assert that Gouton received approximately three months of therapy and treatment since the accident and still feels pain in his neck and lower back which interferes with his daily life. Plaintiffs assert that, once Gouton's no-fault benefits expired, he was forced to stop treatment by his doctors and therapists as he could not afford to pay his medical bills. They also claim that Gouton stopped treatment because the treatment, while helpful, did not cure him and it was difficult for him to travel to the medical facility.
Plaintiffs note that on November 1 and November 6, 2000, Gouton underwent MRI tests of his cervical and lumbar spines, respectively. They point out that, according to the affirmed report of Dr. Mark Freilich, the MRI of Gouton's cervical spine shows herniated discs at C3-C4 and C4-C5 towards the right, centrally bulging discs at C5-6 and C6-7 and straightening and reversal of the cervical lordosis consistent with muscular spasm. The MRI of Gouton's lumbosacral spine revealed a herniated disc at L5-S1 towards the left and centrally indenting the left S1 nerve root, bulging discs at L3-4 and L4-5 and rod-like straightening of the lumbar lordosis suggesting muscular spasm.
Dr. Freilich's report with respect to each plaintiff consists of an affirmation followed by a report. In the last sentence of the affirmation, he affirms that the statements that follow, i.e., those in the report, are true under the penalties of perjury.
On January 14, 2005, Dr. Hausknecht examined Gouton and, in an affirmed report, confirmed Dr. Freilich's findings as to the MRIs. In addition, Dr. Hausknecht found that Gouton has a 20% loss of lateral flexion and rotation on both sides in the cervical spine and a 20% loss of forward flexion in the lumbar spine. He concluded that Gouton's injuries are related to the instant accident, that Gouton's prognosis is poor for any further recovery and, with a reasonable degree of medical certainty, that his condition is permanent. Plaintiffs refer to Dr. Hausknecht's June 22, 2005 addendum report concerning that same January 14, 2005 examination, wherein Dr. Hausknecht specifies the range of motion tests he conducted on the cervical spine and lumbar spine and Gouton's results on said tests. Dr. Hausknecht compares those results to normal results and identifies Gouton's total loss of motion in percentages.
Popy asserts in her affidavit that she missed about two weeks as a salesperson since she could not lift heavy boxes and that she returned to work because she was not paid for the time she missed and needed the income to help support herself and her family. Popy states that about three to four months after she returned to work, she left that job altogether because she could not lift heavy things due to her back pain and that she did not work again for six months. She claims that she still has difficulty and pain when doing household chores and lifting things. Popy further explains in her affidavit that any gap in treatment occurred after her no-fault benefits ended and she could not afford to pay for medical treatment on her own.
Plaintiffs note that Popy underwent MRIs of the cervical and lumbar spine on November 17, 2000. They point out that the MRI of her cervical spine shows bulging discs at C3-4, C4-5, and C5-6, narrowing or stenosis neural foramina levels at C4-T1, and straightening and reversal of the cervical lordosis consistent with muscular spasm. The MRI of her lumbosacral spine reveals a herniated disc at L5-S1 towards the left, centrally, bulging discs at L3-L4 and L4-L5, and exaggerated lumbar lordosis suggesting muscular and/or ligamentous laxity. They observe that Dr. Hausknecht reviewed Popy's MRI films and agreed with Dr. Freilich's findings. Dr. Hausknecht further found that Popy still has a 20% loss of lateral flexion in the cervical spine on both sides. He concluded that her injuries are related to the instant accident and that she sustained significant limitation of function of her cervical and lumbar spines and permanent consequential limitation of function of her cervical and lumbar spines. Plaintiffs note that Dr. Hausknecht clarified his range of motion findings in his June 22, 2005 addendum report, identified the range of motion tests he performed, compared Popy's cervical range of motion with the normal range and identified her total loss in percentages.
In reply, defendants claim that plaintiffs' affidavits are self-serving and contain subjective complaints of pain and limitations which are not corroborated by sufficient medical evidence, the narrative reports and records of treating physicians are unsworn, the various medical records do not explain the significant gap in plaintiffs' treatment and the inadmissible affirmations of Mark Freilich, M.D. must be disregarded as they are not in compliance with CPLR 4532 (a). They maintain that plaintiffs' affidavits must not be given any weight because they contradict each plaintiffs' prior deposition testimony and were, therefore, crafted for the sole purpose of opposing the summary judgment motion and cross motion.
Discussion
In order to establish that they have suffered a permanent consequential limitation of use of a body organ or member, and/or a significant limitation of use of a body function or system, plaintiffs must show more than "a mild, minor or slight limitation of use" and are required to provide objective evidence, in addition to opinions of the extent or degree of the limitation and its duration ( see Oberly v. Bangs Ambulance, Inc., 96 NY2d 295; Grossman v. Wright, 268 AD2d 79, 83). Resolution of the issue of whether a serious injury was sustained involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of a body part ( see Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345, 353). In addition, plaintiffs are required to submit proof that was contemporaneous with the accident showing either any initial range of motion restrictions or an expert's qualitative assessment of plaintiffs' condition, which compares plaintiffs' limitations to the normal function, purpose and use of the affected body organ, member, function or system ( see Jason v. Danar, 1 AD3d 398, 399 [plaintiff, in response to defendants' prima facie showing, failed "to submit any medical proof in admissible form that was contemporaneous with the subject accident showing any initial range of motion restrictions in his spine"], citing Ifrach v. Neiman, 306 AD2d 380, 381, Pajda v. Pedone, 303 AD2d 729 and Lanza v. Carlick, 279 AD2d 613; see also Toure, 98 NY2d at 350). Plaintiffs attach various medical reports and records, none of which is affirmed or sworn to, including the October 2000 reports of Isaac Kohansieh, D.C. following his examination of both plaintiffs, the report of Demetrios M. Mikelis, M.D. (physical medicine and rehabilitation) following his September 25, 2000 examination of Popy, and Jose Acevedo M.D.'s reports after his September 18, 2000 examination of Popy. Hence, none of these records and reports is admissible.
The only admissible medical evidence submitted by plaintiffs that is relatively contemporaneous with the accident are the MRI reports of their cervical and lumbar spines. Although these reports indicate, inter alia, bulging and herniated discs approximately two months after the accident, such diagnoses do not constitute a serious injury in the absence of objective evidence of a related disability or restriction ( see Rudas v. Petschauer, 10 AD3d at 357; Pierre v. Nanton, 279 AD2d at 621-622; see also Toure, 98 NY2d at 353; Chinnici v. Brown, 295 AD2d 465, 465-466). Plaintiffs' failure to provide admissible, contemporaneous medical evidence of the extent or degree of the alleged physical limitations resulting from the disc injuries and their duration and to causally relate same to the accident is fatal to their defense of the summary judgment motion and cross motion ( see Jason, 1 AD3d at 399; Espinal v. Galicia, 290 AD2d at 528-529, citing Monette v. Keller, 281 AD2d 523, 523-524; Chinnici, 295 AD2d at 465-466).
As relevant herein, mere straightening of the lordotic curve and headaches do not qualify as signigicant limitations of use of a body function or system ( Williams v. Ritchie, 139 F Supp2d 330, 341 [2001], citing Thrall v. City of Syracuse, 60 NY2d 950 [1983]). Moreover, sprains and strains do not constitute a "serious injury" ( Castaldo v. Migliore, 291 AD2d 526 [2002]).
Plaintiffs testified that they received ongoing treatment at Roosevelt Family Chiropractic for approximately two months, their last treatment having been in 2000. This four-year gap in treatment is not adequately explained in the admissible record ( see Paulino v. Dai, 279 AD2d 619). Unexplained gaps in treatment generally militate against a finding of serious injury ( see e.g. Ginty, 300 AD2d at 625; Medina v. Reis and Assocs., Inc., 239 AD2d 394, 395; Marshall v. Albano, 182 AD2d 614). Plaintiffs' personal allegations that they ceased medical treatment because their no-fault benefits were discontinued are unsubstantiated by any of their attending medical practitioners and are, therefore, insufficient to preclude defendants' reliance on this defense ( see Pommells v. Perez, 4 AD3d 101; Pinales v. CSC Holdings, Inc., 2002 WL 31355602, citing Coyoc v. New York City Housing Authority, 2002 WL 1396031; Conteh v. Salem Truck Leasing, Inc., 2 Misc 3d 137[A] [2004]).
Regarding the "90/180" category of serious injury, Gouton admitted to missing two days of work and Popy admitted to missing two weeks of work. Plaintiffs do not assert that they were advised by a medical practitioner to curtail their work or other activities ( see Barbarulo v. Allery, 271 AD2d 897, 901) and present no contemporaneous evidence of medically-determined injuries that would have prevented them from working or performing all of their usual daily activities ( see Ersop v. Variano, 307 AD2d 951; Dabiere v. Yager, 297 AD2d 831, 832-833; Cassese v. Leister, 291 AD2d 350). Given the lack of any medical corroboration for a claim that they were incapacitated for the requisite statutory period, plaintiffs fail to raise a triable issue of fact ( see e.g. Rudas, 10 AD3d at 357; Gjelaj v. Ludde, 281 AD2d 211, 212).
Conclusion
For the foregoing reasons, defendants' motion is granted and plaintiffs' complaint is dismissed in its entirety. Plaintiff (on the counterclaim) Gouton's cross motion to dismiss plaintiffs' complaint as to Popy is also granted.
The foregoing constitutes the decision and order of the court.