Opinion
29947/2007.
Decided April 8, 2010.
The defendants move for an Order pursuant to CPLR 3212 for summary judgment upon the grounds that the plaintiffs Jason Schwartz and Joan Schwartz did not suffer a "serious injury" as defined in Insurance Law § 5102(d), and, therefore, the plaintiffs' cause of action must be dismissed (Insurance Law § 5104(a)).
This accident involves three vehicles which were on 80th Road near the intersection of Austin Street, in Forest Hills, New York. Defendant Jaglall came to a stop behind the plaintiff's vehicle at a red stop light. The defendant Viktor Gjeta (hereafter "Gjeta") slowed down but could not stop in time and struck Jaglall's vehicle causing it to hit the plaintiff's vehicle.
Defendants concedes that initially it is their burden to demonstrate that the plaintiff has not suffered a "serious injury" as that term is used in the Insurance Law § 5102(d).
Serious injury means a personal injury which result in . . . 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 constitutes 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.
Under the "No Fault Law" in order to sustain an action for personal injury, a plaintiff must establish "serious injury" as that is defined in the New York State Insurance Law § 5102(d) which should mean "significant" ( Licari v Elliot, supra). In order to raise the issue the movant must show an absence of any material issue of fact which would demonstrate "serious injury" and the right to judgment as a matter of law ( Alvarez v Prospect Hospital, 68 NY2d 320). In the instant case the movants have the burden of proving, by submitting competent evidence in admissible form, that the plaintiff has not suffered a "serious injury"( Lowe v Bennett, 122 AD2d 718 aff'd 69 NY2d 701). The defendant presented a prima facie case of entitlement to summary judgment through the presentation of an affirmed copy of a medical reports ( Santanasatasio v Doe, 301 AD2d 511).
The defendants rely on the pre-trial depositions, photographs, and medical affirmations of their examining physicians who find that the plaintiffs movement are within normal limits.
JASON SCHWARTZ:
Dr. William Walsh, M.D. a Board Certified Orthopedic Surgeon submitted his affirmation with regard to the evaluation of Jason Schwartz performed on June 9, 2009. With regard to Mr. Schwartz' cervical Dr. Walsh reports that Mr. Schwartz range of motion was on the low level of what is considered a normal range of motion, however he found that Mr. Schwartz left and right lateral rotation was ten degrees less that the lowest range of rotation which would have been considered normal. He notes that with regard to his neurological examination that Mr. Schwartz his response to "pinprick is decreased on the right." With regard to the lumbar spine Dr. Walsh found that Mr. Schwartz was normal, his range of motion being on the high side of the normal. Mr. Schwartz' right shoulder "revealed heat, swelling, effusion, erythema, or crepitus appreciated". Dr. Walsh noted that adduction was "40 degrees (45 degrees normal)".
Dr. Daniel J. Feuer, M.D., a Board Certified Neurologist, submitted his affirmation with regard to his neurological evaluation performed on July 28, 2009. The neurological evaluation of Mr. Schwartz' cervical spine, lumbosacral spine, mental status, cranial nerves, "DTR's", motor, sensory, coordination, and gait were all unremarkable, although Dr. Feuer noted that Mr. Schwartz had "Mild bilateral paraspinal tenderness." He noted that with regard to the EMG/NCV performed May 18, 2007 which noted "Mild right C6 radiculopathy" at present he found no objective evidence. It was Dr. Feuer's opinion that "Mr. Jason Schwartz, demonstrates a mild partial neurological disability on the basis of his non-specific subjective radicular complaints referable to the right upper extremity."
Dr. Sheldon Feit, M.D., a Board Certified Radiologist, submitted his affirmation dated September 14, 2009 with regard to his independent review of two MRIs of Jason Schwartz' cervical spine performed July 21, 2006 and January 19, 2008. His opinion of the July 21, 2006 MRI indicated "Mild disc bulges at the C3-4, C4-5, and C5-6 levels." The was no evidence of focal herniation. His opinion of the January 19, 2008 MRI was "Stable disc bulges at the C3-4, C4-5, and C5-6 levels". There was no evidence of focal hernation.
Here the defendants have come forward with sufficient evidence to support their claim that the plaintiff Jason Schwartz has not sustained a "serious injury" ( Gaddy v Eyler, 79 NY2d 955).
Dr. Neil B. Kirschen, M.D., practicing at Pain Management Center of Long Island, submits his affirmation in support of the plaintiff dated January 26, 2010 with regard to his medical narrative of the plaintiff Jason Schwartz. Dr. Kirschen first saw the plaintiff on May 31, 2007 about his neck pain which radiated down his right arm. He notes the plaintiff's cervical MRI reported posterior bugles at C3/4, C4/5, and C5/6. The plaintiff "had diminished side bending at 30 degrees with normal at 45 degrees and rotation at 60 degrees with normal at 90 degrees of the neck bilaterally worse with right-side bending and right rotation." Dr. Kirschen's initial impression was cervical spondylosis and cervical fact syndrome. He indicates that the defendant has "undergone treatment continuously" since May 31, 2007. He refers to another MRI which indicates disc bugles C3 through C6. He notes that the plaintiff has "been treated with short acting opioid medication to provide symptomatic relief." He saw the plaintiff again January 21, 2010 complaining of pain in his right arm with paraesthesias. The examination of the plaintiff performed on Janurary 21, 2010 indicated "diminished range of motion with right cervical side bending to 35 degrees with normal to 45 degrees and rotation to 50 degrees with normal to 90 degrees side bending and rotation and to the left side 30 degrees with normal 45 degrees left side bending and 45 degrees rotation with normal at 90 degrees." Dr. Kirshchen's analysis of ht MRIs taken in 2005 and 2006 showed that the plaintiff was experiencing "more pressure noted on the spinal cord and represents a causally related and traumatically induced change that was exacerbated by the accident." Dr. Kirschen diagnosis of the plaintiff is that he has "cervical radiculopathy, cervical spondylosis with a facet arthropathy status post cervical facet denervation, status post cervical discography and I believe that his injuries are causally related to the motor vehicle accident that occurred on June 21, 2006. Although Mr. Schwartz had a preexisting neck condition, it is apparent that his symptoms have markedly worsened following this motor vehicle accident. . . ." It is Dr. Kirschen's expert medical opinion that the plaintiff's injuries are permanent.
JOAN SCHWARTZ:
Dr. Stanley Ross, M.D., a Board Certified Orthopedic Surgeon, submitted his affirmation with regard to the evaluation of Joan Schwartz performed on May 27, 2009. With regard to Ms. Schwartz' cervical Dr. Ross reports that Ms. Schwartz range of motion is considered as normal range of motion. He found "no evidence of a causally related disability."
Dr. Daniel J. Feuer, M.D., a Board Certified Neurologist, submitted his affirmation with regard to his neurological evaluation performed on July 28, 2009. The neurological evaluation of Ms. Schwartz' cervical spine, lumbosacral spine, mental status, cranial nerves, "DTR's", motor, sensory, coordination, and gait. Dr. Feuer found in the course of his evaluation that Ms. Schwartz had decreased range of motion with regard to her cervical spine of flexion and extension being ten degrees less that the normal movement. So too in his examination of her lumbosacral spine he noted a ten degree deficit in her flexion. He notes that the Ms. Schwartz "whose present neurological examination is remarkable for musculoskeletal deficits of the neck and back including tenderness and mild restricted range of motion." He notes that "She reports a pre-existing history of injuries to her lower back." His impression is that she does not demonstrate any neurological disability or permanency and she is neurlogically "stable."
Here the defendants have come forward with sufficient evidence to support their claim that the plaintiff Joan Schwartz has not sustained a "serious injury" ( Gaddy v Eyler, 79 NY2d 955).
Dr. Neil B. Kirschen, M.D., practicing at Pain Management Center of Long Island, submits his affirmation dated January 26, 2010 in support of the plaintiff with regard to his medical narrative of the plaintiff Joan Schwartz. Dr. Kirschen first saw the plaintiff on July 17, 2007 about her left lower back and buttock pain which radiated down her hip. The plaintiff "had diminished left lumbar rotation at 50 degrees (normal at 90 degrees), diminished sidebending at 30 degrees (normal at 45 degrees); normal flexion at 60 degrees, normal extension at 40 degrees as measured by inclinometer." The review of the MRIs of July 11, 2006 show "central hernations with hypertrophic changes at C4/5 and C6/7 and a lumbar MRI dated July 25, 2006 demonstrating disc bulges at L3/4 and L4/5 with central herniation L5/S1." Dr. Kirschen's "diagnosis was left lumbar radiculopathy and cervical radiculopathy." He indicates that the defendant has "undergone a series of lumbar epidural steroid injections" which did not provide her with relief. She has "described sensation of the rectal burning that was intermittent". He refers to an MRI from 2006 which indicates "bulging discs L3 thorough S1 with stenosis." He notes that evaluation by a Dr. Leone "who did not recommend surgery for this condition." Mrs. Schwartz has seen Dr. Kirschen continuously since her initial visit. He saw the plaintiff again January 22, 2010 which indicated "restricted range of motion of the lumbar spine with side bending to 30 degrees, (normal 45 degrees), rotation limited to 45 degrees (normal at 90 degrees), and diminished flexion at 40 degrees (normal 60 degrees) and extension at 20 degrees (normal 40 degrees) as measured by inclinometer" Dr. Kirshchen's states that Ms. Schwartz suffers from "radiuclopathy [ sp] and cervical radiculopathy causally related to the motor vehicle accident of June 21, 2006." It is Dr. Kirschen's expert medical opinion that the plaintiff's "traumatic injuries sustained from the motor vehicle accident of June 21, 2006 are permanent. The prognosis is guarded. She will require future therapy and medical treatment including interventional pain management procedures for exacerbation of pain and daily pharmacologic management to provide symptomatic relief." "[T]his motor vehicle accident significantly exacerbated her symptoms, with subsequent worsening of herniations of the cervical and lumbar spine."
The plaintiffs both presented their physician's affirmation which demonstrates there is a reasonable question as to whether the plaintiff has sustained "serious injury". While there are conflicting affirmations and affidavits the plaintiffs have established triable issues of fact as to whether as a result of the accident in issue they have sustained injury which were causally related to the accident ( Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345; Meyer v Guido, 260 AD2d 556).
Accordingly, after considering the evidence in a light most favorable to the plaintiffs the defendants' motion for summary judgment is denied. The defendants have failed to demonstrate that the plaintiff has not sustained a permanent loss of use, permanent limitation, significant limitation, or 90/180 days of curtailment of his activities ( Tuna v Badendererde, 32 AD3d 574; see, Kelly v Media Services Corp., 304 AD2d 717).
To establish that the plaintiff has suffered a permanent or consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, the plaintiff must demonstrate more than "a mild, minor or slight limitation of use" and is required to provide objective medical evidence of the extent or degree of limitation and its duration ( Booker v Miller, 258 AD2d 783; Burnett v Miller, 255 AD2d 541). Resolution of the issue of whether "serious injury" has been sustained 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 v Green, 84 NY2d 795). Upon examination of the papers and exhibits submitted this Court finds that the plaintiff has raised triable factual issue as to whether the plaintiff has "permanent consequential" and "significant limitation" categories. The examination of each plaintiff by Dr. Neil B. Kirschen, M.D. indicates that each has a limitation of movement which is as a result of the accident.
Regarding the "permanent loss of use" of a body organ, member or system the plaintiffs must demonstrate a total and complete disability which will continue without recovery, or with intermittent disability for the duration of the plaintiff's life ( Oberly v Bangs Ambulance, Inc., 96 NY2d 295). The finding of "Permanency" is established by submission of a recent examination ( Melino v Lauster, 195 AD2d 653 aff'd 82 NY2d 828) which was conducted by Dr. Neil B. Kirschen, M.D..
Regarding "permanent limitation" of a body organ, member or system the plaintiff must demonstrate that he has sustained such permanent limitation ( Mickelson v Padang, 237 AD2d 495). The word "permanent" is by itself insufficient, and it can be sustained only with proof that the limitation is not "minor mild, or slight" but rather "consequential" ( Gaddy v Eyler, 79 NY2d 955).
The "significant limitation of use of a body function or system" requires proof of the significance of the limitation, as well as its duration ( Dufel v Green, 84 NY2d 795; Fung v Uddin,___ AD3d ___ [2009 NY Slip Op 2560]; Hoxha v McEachern ,42 AD3d 433; Barrett v Howland, 202 AD2d 383). Dr. Neil B. Kirschen, M.D. has adequately demonstrated that each of the plaintiffs has been continuously treated by him and his opinion is based on that observation.
Accordingly, the defendants' motion to dismiss the plaintiffs' claims on the grounds that they have not sustained a "serious injury" is denied.
So Ordered.