Opinion
Index 522656/17
01-31-2022
ANNETTE SELLAN-CALERO, Plaintiff, v. HARRYNARINE SUGRIM and IANA LEASING INC., Defendants. Mot. Seq. No. 4
LAWRENCE S. KNIPEL JUSTICE
Unpublished Opinion
DECISION AND ORDER
LAWRENCE S. KNIPEL JUSTICE
The following e-filed papers read herein: NYSCEF Doc No:
Notice of Motion, Affirmation, and Exhibits Annexed 69-72
Opposing Affirmation and Exhibits Annexed_ 73-78
Affirmation in Reply_79
In this action to recover damages for personal injuries, defendants Harrynarine Sugrim and Iana Leasing Inc. (collectively, the "defendants") move for an order: (I) striking the Supplemental Verified Bill of Particulars, dated April 23, 2020 (the ''Supplemental BOP"), and precluding plaintiff Annette Sellan-Calero (the "plaintiff'' from introducing any evidence at trial as to the particulars set forth in the Supplemental BOP; or in the alternative, (2) directing the plaintiff to appear for a further IME by a date certain, and, in the interim, staying the trial of this action. The plaintiff objects.
Background
On December 8, 2015, the defendants' armored transportation truck rear-ended the plaintiffs SUV on its passenger side. As the result of the accident the plaintiff-driver, then 39 years old, allegedly suffered, among other injuries, a "C6-C7 disc herniation abutting the ventral aspect of the [spinal] cord" (see Verified Bill of Particulars, dated June 12, 2018 [the "initial BOP"], ¶ 4, page 4). On October 6, 2017 and again on March 6, 2018, the plaintiff underwent a non-surgical intervention in the form of a "07-11 Cervical Epidural Steroid Injection with Epidurogram" (id. at 5).
On July 24, 2019, the plaintiff submitted to an IME by the defendants' expert orthopedist, Jeffrey Passick, M.D. ("Dr. Passick"). In a report, dated August 1, 2019, Dr. Passick concluded that, notwithstanding his IME findings of the reduced range of motion in the plaintiff s cervical spine, she merely sustained (as relevant to her cervical spine) a "strain" from the accident, and that such strain had "resolved" by the time of his IME (see Dr. Passick's Report at pages 5 and 8).
On December 12, 2019, the plaintiff Bled a note of issue and certificate of readiness. On February 3, 2020, the plaintiff moved for partial summary judgment on liability. By decision/order, dated June 16, 2020, the court (Sheares, J.) denied the plaintiff s motion, finding "triable issues of fact based on the discrepancy between the police report: and the [p]laintiff's [deposition] testimony." Subsequently, the plaintiffs appeal from Justice Sheares' order was dismissed for failure: to perfect pursuant to Rule 1250.10 (a) of the Statewide Practice Rules of the Appellate Division.
While her motion for summary judgment was pending, the plaintiff served the instant Supplemental BOP. The Supplemental BOP (and the medical records annexed thereto) disclose that in the morning of March 10, 2020, the plaintiff presented to the NY Presbyterian - Lower Manhattan hospital (the "NYP-LM hospital") for an elective surgical intervention in the form of an anterior cervical discectomy and fusion of her cervical spine at the C6-7 level. The plaintiffs pre-operative diagnosis was "Cervical Radiculopathy secondary to C6/7 HNP [Herniated Nucleus Pulposus] with bilateral foraminal and central stenosis," which conditions: had allegedly failed to respond to the "non-operative management" (see Operation Summary at page 1 [NYSCEF Doc No. 71]), Shortly after the induction of general anesthesia, however, the plaintiff suffered an allergic reaction as evinced by hypotension and a bronchospasm. Surgery was stropped; the anesthesia was reversed; and the plaintiff was treated for anaphylaxis. The plaintiff stayed overnight at the NYP-LM hospital and was discharged home in the afternoon of the following day (or approximately 24 hours post-presentation), with instructions to consult with an outside allergist and then to return to her orthopedic surgeon at the NYP-LM hospital.
Following the exchange of the Supplemental BOP and the NYP-LM hospital records, the plaintiff submitted to a further EBT.. The parties, ; however, were unable to agree to a further 1MB, prompting the service: of the instant motion.
Discussion
The defendants have established beyond peradventure that, pursuant to CPLR 3042 (b), they are entitled to a further orthopedic IME of the plaintiffs cervical spine. Contrary to the plaintiffs contention, the fact that orthopedic surgery on the plaintiff s cervical spine was stopped post-commencement for non-orthopedic reasons (i. e., anaphylaxis) did not (at least according to the NYP-LM hospital records) obviate its alleged propriety (see Discharge Notice, "Hospital Course," at page 2 ["Patient. . . is aware that she: should see an allergist (as an) outpatient and follow-up with (the orthopedic surgeon) to schedule surgery in the future onec evaluated by (the) allergist"] [NYSCEF Doc No. 71 (emphasis added)]).
Conclusion
Accordingly, it is
ORDERED that the defendants are granted leave to designate a further orthopedic (but no other) IME of the plaintiff, as limited to her cervical spine (the "further IME"), within 15 days of the date of electronic service of this decision and order with notice of entry by defense counsel on the plaintiffs counsel; and it is further
ORDERED that the plaintiff shall appear for the further IME within 30 days post-designation, or, failing her timely appearance for the further IME, she shall be precluded from offering medical evidence as to her alleged cervical spine injuries at trial; and it is further
ORDERED that the defendants are directed to exchange any further orthopedic IME report and/or an addendum to Dr. Passick's orthopedic IME report, as applicable (collectively, the "further IME exchange"), within 20 days after receipt; and it is further
ORDERED thai the parties' next appearance in JCP-1 (which is currently scheduled for February 7, 2022 at 9:45 a.m.) is adjourned, and the trial of this action is stayed, in each instance, until the completion of the further IME and the further IME exchange.
This constitutes the decision and order of the Court.
HON- LAWRENCE KNIPEL ADMINISTRATIVE JUDGE