Opinion
Index Nos. 804654/2016 2016-804652
05-31-2018
Silverheels, Sumana v. Nagi, Amir
Tiffany M. Kopacz, Esq. Chiacchia & Fleming, LLP Megan F. Organek, Esq. Hagelin Spencer, LLC
Unpublished Opinion
Tiffany M. Kopacz, Esq.
Chiacchia & Fleming, LLP
Megan F. Organek, Esq.
Hagelin Spencer, LLC
MEMORANDUM DECISION
Donna M. Siwek Judge
Dear Counselors:
May this letter constitute the Court's Decision relative to defendant Amir Nagi's motion for summary judgment pursuant to CPLR §3212 on the issue of serious injury and plaintiff Sumana Silverheels' opposition thereto. The motion was deemed fully submitted on May 15, 2018. After reviewing and considering the papers submitted, relevant case law and oral argument, it is the Court's decision as follows:
We find that the defendant met his initial burden in establishing entitlement to summary judgment as a matter of law through the submission of plaintiffs deposition testimony and the independent medical examination and supporting affirmation of Dr. Michael Landi. Dr. Landi concluded that plaintiffs alleged injuries are related to pre-existing conditions dating back several years before the subject accident and it is these pre-existing conditions that caused plaintiffs subjective complaints and led to her need for surgery. Thus, defendant met his burden in establishing as a matter of law that plaintiff did not sustain a qualifying "serious injury" causally related to the subject automobile accident of October 7, 2014 as required under §5102(d) of the New York Insurance Law.
In response to defendant's motion, we find that plaintiff established a question of fact as to whether the October 7, 2014 motor vehicle accident caused plaintiff to sustain a serious injury as defined by New York Insurance Law §5102 by her submission of the affidavit of Dr. Lindsey D. Clark, plaintiffs treating orthopedic surgeon. Dr. Clark began treating the plaintiff' on November 18, 2015 (after a referral from plaintiffs primary care physician. Dr. Shanna) for her symptoms of neck and right arm pain following the October 7,2014 accident. Dr. Clark noted that plaintiffs cervical pain was becoming more problematic and that conservative treatment measures had failed. After review of December 1, 2015 MRI results, Dr. Clark recommended that plaintiff undergo an anterior cervical decompression with instrumentation and fusion at C5-6. Plaintiff ultimately underwent that surgery on January 21,2016. It is notable that defense examiner. Dr. Michael Landi agreed that the aforementioned surgery was medically indicated, although he did not believe it was causally related to the subject accident. Post-operatively, Dr. Clark confirmed her pre-operative diagnosis that plaintiff was suffering from cervical stenosis and neural compression with ongoing radiculopathy at C5-6.
Dr. Clark further reviewed and opined on plaintiff's pre-existing medical records for the care and treatment of prior neck and back pain from various providers dating back to 2005 up until the spring of 2009. Dr. Clark opined that plaintiffs medical care and chiropractic treatment prior to the subject accident had successfully addressed plaintiffs pre-existing spinal problems as evidenced by the fact that plaintiff had resumed her usual level of activity and was without restriction or ongoing disability from the Spring of 2009 up until the time of the October 7, 2014 accident. Dr. Clark found significant that plaintiff went without any treatment for more than five years prior to the subject accident and did not report any neck tenderness or pain at a physical exam with Dr. Becker on November 19, 2010 or at any follow-up examination until after the October 7, 2014 accident Dr. Clark opines that plaintiff had pre-existing degenerative conditions in her cervical spine but that those pre-existing conditions were asymptomatic for several years prior to the October 7,2014 accident and that a causal relationship exists between the accident on October 7, 2014 and Ms. Silverheels' subsequent neck and bilateral upper extremity symptomology. Dr. Clark believes that the accident of October 7, 2014 triggered, exacerbated and/or aggravated Ms. Silverheels' prior cervical spine condition.
Finally, Dr. Clark finds significant that the plaintiff reported her neck pain to her primary care physician, Dr. Shanna, the day after the accident and was sent for cervical x-rays. In January of 2015, she reported to Dr. Bukaty increasing problems with numbness and tingling in her arm and fingers. Dr. Clark opines that it was not unreasonable or clinically irregular for the plaintiff to have delayed treatment until her cervical pain complaints progressed and worsened in the weeks following the October 7, 2014 accident. Plaintiff did not seek treatment from Dr. Clark until after conservative therapies, i.e. chiropractic intervention and physical therapy, did not resolve her symptoms, and her condition worsened. Dr. Clark opines with a reasonable degree of medical certainty that plaintiff s prior degenerative findings and/or processes in her neck which had been asymptomatic, were significantly exacerbated, triggered, aggravated and substantially worsened by the subject accident, and resulted in the necessary surgery and post-operative care and treatment.
Finally, Dr. Clark opines that while the surgery alleviated the majority of plaintiff's symptoms, she still continues to suffer cervical restrictions and that those injuries are permanent and significantly limit her lifting, twisting, work and daily home activities and are causally related to the subject accident.
Based on the foregoing, we find that plaintiff has raised a question of fact with respect to whether she has sustained a "permanent consequential limitation of use" and/or a "significant limitation of use" as a qualifying serious injury in the motor vehicle accident of October 7, 2014 pursuant to CPLR §5102(d). We agree with defendant that plaintiff has failed to establish a serious injury pursuant to the "significant disfigurement" category, arid as such, that claim is dismissed.
Submit order within 30 days of the date of this Decision.