Opinion
No. 08–0650.
2010-02-9
Rosemay SMITH, Plaintiff, v. Joanna R. PRAZENICA and Jilda Prazenica, Defendants.
Basch & Keegan, LLP, Derek J. Spada, Esq., of counsel, Kingston, for Plaintiff. Martyn, Toher & Martyn, Nittin Sain, Esq., of counsel, Mineola, for Defendants.
Basch & Keegan, LLP, Derek J. Spada, Esq., of counsel, Kingston, for Plaintiff. Martyn, Toher & Martyn, Nittin Sain, Esq., of counsel, Mineola, for Defendants.
HENRY F. ZWACK, J.
In this motor vehicle accident case, defendants move for summary judgment arguing that plaintiff did not sustain a “serious injury” as defined under New York Insurance Law. Plaintiff opposes the motion.
On April 2, 2006 the parties were involved in a motor vehicle accident on North Putt Corners Road in the Town of New Paltz, Ulster County, New York. Plaintiff subsequently commenced the present proceeding and argues in her bill of particulars that she sustained a serious injury under the categories of permanent consequential limitation, significant limitation, and that she was unable to perform her usual and customary daily activities for not less than 90 out of 180 days immediately following the accident. Plaintiff contends in her bill of particulars that she suffered injuries to her cervical and lumbar spine as a result of this accident. Also in her bill of particulars, she verifies that she was totally incapacitated from employment for approximately one week.
Defendants now move for summary judgment, arguing that plaintiff did not suffer a serious injury as a result of the accident in question. Defendants note that plaintiff had two prior motor vehicle accidents: one in January of 2000 where she states she suffered a brain injury and ankle fracture, and one in May of 2005 where she injured her cervical spine. With regard to the 90/180 day claim, defendants argue that plaintiff testified she missed only one week from work, had resumed working full-time, and resumed recreational activities such as tennis and traveling. Defendants also argue that plaintiff has failed to establish that she sustained permanent injuries with regard to the subject accident, as opposed to from her prior accidents in 2000 and 2005. Defendants rely upon plaintiff's deposition testimony and the affirmed report of Dr. Mary T. Godesky, dated October 14, 2008. Dr. Godesky affirmed in her report her belief that plaintiff aggravated a pre-existing condition of her cervical spine in the 2006 accident, but found that plaintiff exhibited “no objective orthopedic findings with regard to the cervical spine or upper extremities” and “she has recovered from whatever injuries she may have sustained in the April 2006 accident of record.” Dr. Godesky averred that she did not find any loss of range of motion in plaintiff's cervical spine.
Plaintiff opposes the motion, arguing that defendants failed to set forth prima facie entitlement to judgment as a matter of law and that questions of fact exist in any event. Plaintiff argues that defendants failed to meet their burden with regard to the 90/180 day category because the doctor's report on which they rely did not render an opinion as to this category of serious injury. Plaintiff also argues that defendants failed to make a prima facie showing regarding the significant limitation category of serious injury because the doctor's report on which they rely, based upon an examination over two years after the accident, does not address this category of serious injury, which does not require permanency. Plaintiff also argues that even if defendants had met their burden, there are questions of fact that preclude summary judgment regarding whether plaintiff suffered a permanent consequential limitation or significant limitation. Plaintiff relies upon the affidavit of a chiropractor who began treating plaintiff after her 2005 accident, and the report of a doctor who examined plaintiff on or about November 13, 2008.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v. Pomeroy, 35 N.Y.2d 361, 364 [1974] ). The focus should be on issue identification rather than issue determination (Sternbach v. Cornell University, 162 A.D.2d 922, 923 [3d Dept.1990] ). “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986];see also Ayotte v. Gervasio, 81 N.Y.2d 1062 [1993];Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ). Once the movant has established a right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact ( see Alvarez, supra; Zuckerman, supra ). The evidence must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, in order to determine whether there is any triable issue of fact outstanding ( see Suffolk Co. Dept. of Soc. Servs. v. James M., 83 N.Y.2d 178, 182 [1994];Boyce v. Vazquez, 249 A.D.2d 724, 725 [3d Dept.1998] ).
In New York State, a party alleging negligence in a motor vehicle accident may only recover damages for pain and suffering if they have suffered a “serious injury” pursuant to Insurance Law § 5102(d) ( seeIns. Law § 5104[a]; Pommells v. Perez, 4 NY3d 566 [2005] ). A serious injury is defined as follows:
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; 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 constitute 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.
Ins. Law § 5102[d]. Subjective accounts of pain may not be the basis for a serious injury (Scheer v. Koubek, 70 N.Y.2d 678 [1987] ).
A defendant seeking summary judgment asserting that plaintiff failed to meet the serious injury threshold has the initial burden of presenting evidence in admissible form establishing that plaintiff did not suffer a serious injury causally related to the accident in question (Gaddy v. Eyler, 79 N.Y.2d 955, 956–57 [1992];Hayes v. Johnston, 17 AD3d 853, 853–54 [3d Dept 2005]; Santos v. Marcellino, 297 A.D.2d 440, 441 [3d Dept 2002] ). To meet this burden, defendant may submit plaintiff's own deposition testimony and defendant's own examining doctor's affirmed report (Moore v. Edison, 25 AD3d 672 [2d Dept 2006]; Farozes v. Kamran, 22 AD3d 458, 458 [2d Dept 2005]; McNamara v. Wood, 19 AD3d 921, 922 [3d Dept 2005] ). Once a defendant has met their burden, the burden shifts to the plaintiff “to come forward with sufficient evidence to overcome defendant's motion by demonstrating that she sustained a serious injury within the meaning of the No–Fault Insurance Law” (Gaddy, 79 N.Y.2d at 957;see also Farozes, 22 AD3d 458).
Regarding the 90/180 day category of serious injury, plaintiff had to have been prevented from performing substantially all of his daily activities for 90 days out of the first 180 after the accident (Ins. Law § 5102[d]; Gaddy v. Eyler, 79 N.Y.2d 955, 958 [1992];Licari v. Elliott, 57 N.Y.2d 230, 236 [1982] ). “[T]he words substantially all' should be construed to mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment.” (Licari, 57 N.Y.2d at 236;see also Forbes, 36 AD3d 901 [noting that “plaintiff failed to proffer competent medical evidence that she was unable to perform substantially all of her daily activities”]; Albano v. Onolfo, 36 AD3d 728 [2d Dept 2007]; Hasner v. Budnik, 35 AD3d 366 [2d Dept 2006]; Marotta v. Mastroianni, 273 A.D.2d 206 [2d Dept 2000]; Short v. Shawn, 188 A.D.2d 815 [2d Dept 1992]; Kimball v. Baker, 174 A.D.2d 925 [3d Dept 1991] ).
With regard to the category of serious injury of 90/180 days, the Court finds that defendants set forth prima facie entitlement to judgment as a matter of law with regard to this category. Plaintiff's bill of particulars noted that she was out of work for one week, which she confirmed at her deposition, which was held on August 12, 2008. She testified that she then went back to work after approximately one week off post-accident, but worked fewer than the 20–25 hours per week that she had been working just prior to the accident in 2006. At the time of her deposition, plaintiff testified that she was working 40 hours a week as a waitress. Based upon this proof, the Court does not find that defendants were required to also set forth medical proof concerning this category of serious injury in order to set forth a prima facie case ( see, e.g., Antonio v. Gear Trans Corp., 65 AD3d 869 [1st Dept 2009] ).
In opposition to the motion, plaintiff failed to establish that a triable question of fact exists with regard to the 90/180 category. The chiropractor affidavit submitted states that he “deemed Ms. Smith to be totally disabled for a few months after the 4/2/06 collision. However, she returned to work shortly following the collision because she otherwise had not (sic) income.” The Court does not find this statement to be sufficiently specific to raise a triable issue of fact with regard to the 90/180 category of serious injury ( see, e.g., Antonio v. Gear Trans Corp., 65 AD3d 869 [1st Dept 2009] ). It fails to explain what activities she was unable to do during the relevant time period, and the medical reason for such limitations.
The Court also does not find that plaintiff's affidavit submitted in opposition to the motion raises triable issues of fact to the extent that it is inconsistent with her prior deposition testimony ( see, e.g., Harty v. Lenci, 294 A.D.2d 296 [1st Dept 2002] ). Plaintiff avers in her affidavit that she returned to work as a waitress one week following the collision, but then “stopped working as a waitress due to [her] injuries” at some unspecified date. Plaintiff also affirms in her affidavit that she remains “physically incapable of returning to that type of work because working as a waitress unbearably exacerbates [her] injuries.” Her affidavit fails to acknowledge or explain her prior deposition testimony, in 2008, where she had testified that she had returned by that time to working even more hours as a waitress then she had worked just prior to the 2006 accident. She also testified at her 2008 deposition that she had returned to playing tennis and traveling. In her affidavit submitted in opposition to this motion, she affirms that her travel is limited and she has not played tennis since the accident. Based upon the fact that plaintiff's affidavit contradicts her prior deposition testimony, and based upon the absence of medical proof that plaintiff was prevented from performing her usual and customary daily activities for 90 of the first 180 days following the accident, the Court finds that plaintiff's claim for serious injury under the 90/180 category must be dismissed because she has failed to raise triable issues of fact with regard to this category.
“[I]n order to establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system” (Dean v. Brown, 67 AD3d 1097 [3rd Dept 2009]; see Lee v. Laird, 66 AD3d 1302 [3rd Dept 2009]; John v. Engel, 2 AD3d 1027 [3d Dept 2003] ).
Regarding the category of significant limitation of use, the Court concurs with plaintiff that defendants failed to establish prima facie entitlement to judgment as a matter of law with respect to the category of significant limitation of use. While Dr. Godesky's report notes her belief that plaintiff's injuries from the 2006 accident had resolved, she did not specifically address the category of significant limitation of use, which does not require permanent injury. The Court concurs with plaintiff that Dr. Godesky's report only addresses plaintiff's present condition, and as her examination was more than two years after the accident in question, this is not sufficient to establish as a matter of law that plaintiff failed to sustain a non-permanent significant limitation. Defendants' motion for summary judgment is denied with respect to the category of significant limitation of use.
Regarding the category of permanent consequential limitation, the Court finds that defendants established prima facie entitlement to judgment as a matter of law with respect to this category, insofar as it pertains to cervical spine injuries. The Court concurs with plaintiff that defendants failed to address plaintiff's complaints of lumbar spine injuries. Dr. Godesky's report only reflects consideration and analysis of plaintiff's cervical spine injuries. Therefore, defendants' motion is denied for failure to set forth prima facie proof with respect to plaintiff's claimed lumbar spine injuries as far as they relate to the serious injury category of permanent consequential limitation.
With regard to plaintiff's cervical spine injuries, Dr. Godesky's report, submitted by defendants, stated that plaintiff's bulging discs were a pre-existing condition related to her prior accident and she affirmed her belief that plaintiff's range of motion with respect to her cervical spine was within normal limits. Upon review of Dr. Godesky's report, the Court finds that it establishes prima facie entitlement to judgment as a matter of law for defendants on the issue of whether plaintiff suffered a permanent consequential limitation with respect to her cervical spine injuries.
Upon reviewing plaintiff's submissions in opposition, the Court finds that plaintiff has raised triable issues of fact with respect to this category of serious injury. The affidavit of plaintiff's chiropractor, Dr. Deschenes, who treated plaintiff beginning with her 2005 auto accident, compared plaintiff's condition prior to the 2006 accident at issue, with her condition after the 2006 accident. Dr. Deschenes affirmed in his affidavit that the 2006 accident significantly aggravated her cervical condition from the 2005 accident, from which she had almost completely recovered, and also caused new injuries. Dr. Deschenes examined plaintiff on the day after the 2006 accident and affirms that he measured the range of motion of her cervical spine, providing the percentages of loss of range of motion in his affidavit, and that her range of motion had decreased. Dr. Deschenes affirms that he treated plaintiff more than 150 times subsequent to the 2006 accident and he confirms that her cervical ranges of motion remained below normal limits. Plaintiff also provides the report of Dr. Mendoza, who confirms that the MRI of plaintiff's neck showed disc bulging that was more prominent than after her 2005 accident. Dr. Mendoza sets forth in his report the decreased ranges of motion in plaintiff's cervical spine, with spasms noted. Both doctors causally relate plaintiffs injuries to the 2006 subject accident. The Court finds that the proof submitted by plaintiff is sufficient to raise a triable issue of fact with regard to whether plaintiff sustained a permanent consequential limitation relating to cervical spine injuries.
For the foregoing reasons, defendants' motion for summary judgment is granted to the extent of dismissing plaintiff's claim under the 90/180 category of serious injury, and is otherwise denied.
Accordingly, it is
ORDERED, that defendants' motion is granted to the extent of dismissing plaintiff's claim for serious injury under the 90/180 day category, and the motion is otherwise denied.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the defendants. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.