Opinion
1116385-05.
Decided September 3, 2008.
Firm: Kay Gray, Westbury, New York, Attorney for the Defendants.
Firm: Jacob Oresky Associates, Bronx, New York, Attorney for the Plaintiffs.
This is an action to recover damages for personal injuries and loss of services suffered as the result of an automobile collision. On December 17, 2004, the plaintiff Maria B. Tejada (plaintiff) was a passenger in a vehicle that was rear-ended by a vehicle operated by the John I. Spariosu and owned by the defendant Hempstead Transportation Service, Inc. (Hempstead). The defendants Hempstead Transportation Service, Inc. (Hempstead) and John I. Spariosu (Spariosu) (collectively, defendants) move, pursuant to CPLR §§ 3211 (a) (7), 3212 for Summary Judgement for an order dismissing the complaint for the plaintiff's failure to prove "serious injury"pursuant to the New York State Insurance Law §§ 5102 (d), 5104 (a).
New York Insurance Law § 5102(d), defines a "serious injury" as 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" (See Raffellini v State Farm Mutual Automobile Insurance Company, 848 NY2d 1).
The New York Insurance Law also provides that every automobile owner must carry automobile insurance, which will compensate injured parties for "basic economic loss" for injuries caused by the use or operation of that vehicle in New York State, irrespective of fault (Insurance Law § 5102 [d]). An injured party may initiate a suit against the automobile owner or driver, for damages caused by the accident only in the event of a "serious injury." This Court has long recognized that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit discovery to significant injuries ( Toure v Avis Rent A Car Sys., 746 NYS2d 865 at 867, 98 NY2d 345 citing Dufel v. Green, 84 NY2d 795, 798 622 NY2d 900 (1995);( See Lopez v Senatore, 65 NY2d 1017, 1020, quoting Licari v Elliott, 57 NY2d 230, 236). Indeed, failure to grant summary judgment even where the evidence justifies dismissal, burdens court dockets and impedes the resolution of legitimate claims. ( Pommells v Perez , 4 NY3d 566 ,
The defendants, in order to prevail on a motion for summary judgment are required to make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact ( JMD Holding Corp. v Congress Fin. Corp. , 4 NY3d 373 ; Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Thomas v Holzberg, 751 NYS2d 433, 434 {300 AD2d 10} [1st Dept 2002]. The motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof . . ." (CPLR § 3212 [b]). A party may also demonstrate a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence ( Zuckerman, supra; Prudential Securities Inc. v Rovello, 692 NYS2d 67 {262 AD2d 172} [1st Dept 1999]).
In support of their motion for summary judgment, the defendants argue that the injuries claimed by the plaintiff do not qualify as serious injuries within the meaning of the no-fault law because the injuries are pre-existing in nature. The defendants submit affirmations from their independent medical examining physicians, Phillip Robbins, M.D., orthopedist, Daniel Feuer, M.D., neurologist and Steven Lastig, M.D. radiologist, claiming that the plaintiff's spine is normal, except that her MRI shows degenerative disc disease. They claim this degenerative disc disease is either normal or unrelated to the accident. Accordingly, the defendants have met their prima facie showing.
Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden then shifts to the opposing party to demonstrate by admissible evidence the existence of a triable issue of fact, or to tender an acceptable excuse for his or her failure to do so. ( Vermette v Kenworth Truck Co., 68 NY2d 714; Zuckerman v City of New York, supra . Mere conclusions, expressions of hope, or unsubstantiated allegations are insufficient for this purpose. Zuckerman v City of New York, supra; Forrest v Jewish Guild for the Blind, 765 NYS2d 326 {309 AD2d 546} [1st Dept 2003]).
In opposition to the motion, the plaintiff alleges by affidavit, sworn depositions and three medical expert affirmations that she was unable to return to work for six months after the accident, underwent eight months of physical therapy immediately following the accident, underwent three epidural steroid injections, and may need surgery. It is alleged that the defendants' own examining physicians admit that the plaintiff was not even able to be tested with respect to her spinal ranges of motion due to her inability to move. Finally, the plaintiff's treating physician alleges both traumatically induced disc herniations and limited range of motion.
The defendants' motion for summary judgment must be denied, as the plaintiff presents sufficient objective evidence demonstrating the existence of triable issues of fact as to whether or not she sustained a serious injury as the result of the automobile collision. To constitute a serious injury, a disc bulge or herniation must be accompanied by objective evidence of the extent of alleged physical limitations resulting from the disc injury ( Pommells v Perez, supra; Onishi v N B Taxi, Inc. , 51 AD3d 594 [1st Dept 2008]; Kearse v New York City Transit Authority, 16 AD3d 45 [2d Dept 2005]). An MRI taken of the plaintiff's spine reveals disc herniations and bulges, and the affirmation of the plaintiff's physicians shows that from detailed tests, the plaintiff has significant and specified limitations of range of motion with respect to her cervical and lumbar spine. Whether or not the disc herniations were traumatically induced are an issue of fact. The defendants fail to demonstrate that the herniations and bulges were not causally related to the subject collision ( Chaplin v Taylor, 273 AD2d 188 [2d Dept 2000]). On the other hand, the plaintiff's experts address the question about the effect of the allegedly pre-existing condition ( Franchini v Palmieri, 1 NY2d 536). Moreover, the defendants' claim that the one of three of the plaintiff's examining physicians affirmation is deficient, is without merit, or insufficient to void plaintiff's evidence.
Under the permanent consequential limitation and significant limitation categories of Insurance Law § 5102 (d), the plaintiff submits medical proof, based on a recent examination, containing objective, quantitative evidence with respect to diminished range of motion and a qualitative assessment comparing the plaintiff's present limitations to the normal function, purpose, and use of the affected body organ, member, function, or system ( Toure v Avis Rent A Car Sys., 98 NY2d 345; Gorden v Tibulcio , 50 AD3d 460 [1st Dept 2008]). The plaintiff's experts specifically quantified the range of motion limits and related them to the collision, sufficient to defeat summary judgment ( Desulme v Stanya , 12 AD3d 557 [2ndt Dept 2004]). The plaintiff's experts adequately account for the degenerative changes that the MRI films allegedly revealed ( Chong Sim Kim v Amaya , 51 AD3d 487 [1st Dept 2008]; Mullings v Huntwork , 26 AD3d 214 [1st Dept 2006]).
Finally, the plaintiff also raises a triable issue of fact as to whether or not she was incapacitated from performing all of her usual and customary activities for at least 90 out of 180 days following the collision. Because of her severe symptoms, the plaintiff was advised by her physicians to refrain from work for a period of six months and received physical therapy or treatment for fifty one days within eight month following the accident. Such evidence is sufficient to raise a triable issue of fact as to whether or not the plaintiff sustained a "90/180" injury ( Casas v Montero , 48 AD3d 728 [2d Dept 2008]; Thompson v Abbasi , 15 AD3d 95 [1st Dept 2005]).
Accordingly, it is
ORDERED that the defendants motion for summary judgment is denied, and it is further,
ORDERED that defendants shall serve a copy of this order, with notice of entry, upon plaintiff.
This constitutes the Decision and Order of the Court.