Opinion
Index No: 307328/2013
10-08-2015
VINCENT SEPULVEDA, Plaintiff, v. MIGUEL E. NUNEZ, Defendant. MIGUEL E. NUNEZ, Plaintiff, v. JOSE R. ORTIZ and JONATHAN L. ORTIZ and INTEX AUOT LEASING and SHAHROKH T. ARAE, Defendant.
DECISION AND ORDER
Present: HON. KENNETH L. THOMPSON, JR. Third -Party Index: 83703/2014 The following papers numbered 1 to 8 read on this motion to amend pleadings
| No On Calendar of June 3, 2015 | PAPERS NUMBER |
| Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed | 1, 5 |
|---|---|
| Answering Affidavit and Exhibits | 2, 6 |
| Replying Affidavit and Exhibits | 3, 4, 8 |
| Affidavit | |
| Pleadings -- Exhibit | |
| Memorandum of Law | 7 |
| Stipulation -- Referee's Report -- Minutes | |
| Filed papers |
This action arose as a result of personal injuries sustained by plaintiff, Vincent Sepulveda, (hereinafter, "Sepulveda") as a result of a motor vehicle accident which occurred on April 9, 2013. Defendant, Miguel E. Nunez, ("Nunez") moves for summary judgment dismissing this action, contending that Sepulveda cannot establish that he sustained serious injury as that term is defined in Insurance Law §5102(d). Sepulveda, moves pursuant to CPLR 3025 and 305, to amend the complaint to add third-party defendant, Shahrokh T. Arae, (Arae), as a direct defendant in Sepulveda's complaint. Arae cross-moves to strike the note of issue and for discovery. The motions of Nunez, Sepulveda and the cross-motion of Arae are consolidated for purposes of decision and disposition.
The initial burden on a threshold motion is upon the defendant to present evidence establishing that plaintiff has not sustained a serious injury and therefore has no cause of action. It is only when defendant's initial burden is met that plaintiff wouId be required to establish prima facie that a serious injury had been sustained within the meaning of Insurance law § 5102(d). (Pommells v Perez, 4 N.Y.3d 566, 574 [1st Dept 2005]).
Defendants offer, in part, as proof of the absence of serious injury to plaintiff the affirmation of Audrey Eisenstadt, a radiologist and Naunibal Sachdev Singh M.D., a neurologist. The evaluations performed by the aforementioned physicians were performed at the request of defendants.
As a result of Dr. Eisenstadt's review of cervical and lumbar spine MRI scans, Dr. Eisenstadt diagnosed plaintiff with cervical spine straightening and a bulging and herniated disc at L5-S1 along with degeneration. Dr. Eisenstadt opined that there was no posttraumatic disc changes.
As a result of Singh's physical examination of plaintiff on September 4, 2014, Dr. Singh found that plaintiff had normal range of motion of the cervical, thoracic and lumbar spine. Dr. Singh opined that there was no medical necessity for further treatment, medical testing of follow-up with respect to neurology. Dr. Singh further opined that plaintiff has no neurological disability and is not disabled from working or from activities of daily living.
Plaintiff testified that he missed a couple of days from work as a result of the subject collision. "The evidence that plaintiff missed less than 90 days of work in the 180 days immediately following the accident and indeed otherwise worked "light duty" is fatal to the 90/180-day claim (see Tsamos v. Diaz, 81 AD3d 546 [2011])." (Williams v. Perez, 92 A.D.3d 528, 529 [1st Dept 2012].
With respect to plaintiff's claim of a compression fracture, plaintiff submitted the affirmation of Narayan Paruchuri, M.D., a radiologist. In her affirmation, Dr. Paruchuri stated she "read the MRI film and the results are stated on the annexed MRI Report. Specifically, I noted, among other things, the existence of an Anterior Wedge Compression Fracture of the T12 and L1 which I noted to be related to patient's previous trauma w lich took place on April 9, 2013." However, the MRI report Dr. Paruchuri annexed to her affirmation, states that the compression fracture "could be related to patient's previous trauma." (Emphasis added). "[T]he reviewing radiologist could only state that plaintiff's herniations and disc bulge "may be" related to the subject accident art. Absent any description of the objective nature of his findings, plaintiff's doctor's affidavit must be viewed as conclusory and insufficient to establish a serious injury (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005])." Fernandez v. Mercedes, 45 A.D.3d 385, 386 [2007]).
Clearly, Dr. Paruchuri's report that the compression fracture, "could" be related to the subject vehicular collision is insufficient to defeat a summary judgment motion. Dr. Paruchuri nor plaintiff explains why Dr. Paruchuri changed her equivocal opinion that the compression fracture could be related to the subject vehicular collision to a medical compression fracture was related to the collision. "[Plaintiff's] failure to explain the inconsistencies between her treating physician's finding of near full range of motion in the lumbar spine within three months after the accident, and his present at findings of deficits, entitles defendant to summary judgment (see Dorrian v Cantalicio, 101 AD3d 578 [1st Dept 2012]; Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011])." Santos v. Perez, 107 A.D.3d 572* 574 [1st Dept 2013]).
Accordingly, the motion for summary judgment of Miguel E. Nunez is granted, and the complaint of Vinceat Sepulveda is dismissed. The motion to amend the complaint and the cross-motion of third-party defendant Shahrokh T. Arae to strike the note to of issue and for discovery are denied as moot in light of the dismissal of Sepulveda's compiaint.
The foregoing shall constitute the decision and order of the Court. Dated: October 8, 2015
/s/ _________
KENNETH L. THOMPSON J.S.C.