Opinion
No. 112476/2007.
11-24-2014
Donnell THOMPSON, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, Manhattan & Bronx Surface Transit Operating Authority & Carolyn Jamison, Defendants.
Alan Ross & Associates, PC, Brooklyn, for plaintiff. Steven Jay Feinstein, Esq., Of Counsel to Wallace D. Gossett, New York, for defendants.
Alan Ross & Associates, PC, Brooklyn, for plaintiff.
Steven Jay Feinstein, Esq., Of Counsel to Wallace D. Gossett, New York, for defendants.
Opinion
MICHAEL D. STALLMAN, J.
In this action involving a motor vehicle collision, defendants move for summary judgment dismissing the complaint on the ground that plaintiff's alleged injuries do not meet the serious injury threshold under Insurance Law § 5102(d). Plaintiff opposes the motion.
BACKGROUND
In this action, plaintiff alleges that, on June 17, 2006, his vehicle was involved in a motor vehicle collision with a M96 bus, bus No. 6679 bearing the license plate # L94555, operated by defendant Carolyn Jamison. The collision allegedly occurred at the intersection of Madison Avenue and East 96th Street in Manhattan. According to the bill of particulars, plaintiff principally sustained a cervical disc herniation, lumbar disc herniations, and sprain/strain of the lumbosacral spine. (Feinstein Affirm., Ex E [Bill of Particulars] ¶ 10.)
At his statutory hearing, plaintiff was asked, “And how has this accident changed your life, if it has changed it? Your life, has it changed or is it about the same?” (Feinstein Affirm., Ex F, at 39.) Plaintiff answered, “It's the same.” (Id. ) At his deposition, he testified, in relevant part:
“Q. Is there anything you cannot do today that you could do prior to this incident?
A. I could still do mainly the same thing but not as long.
Q. Such as?
A. Like if I am standing I can't stand that long when I am driving I got to recline my seat back now.
* * *
Q. Is there anything in your life that has changed since this incident physically?
A. No.
* * *
Q. Was there ever a period of time that you could not leave your house because of this incident?
A. No.”
(Feinstein Affirm., Ex G [Thompson EBT], at 28, 31–32.)
DISCUSSION
To meet the prima facie burden of summary judgment, a defendant must “submit [ ] expert medical reports finding normal ranges of motion in the claimed affected body parts and no objective evidence that any limitations resulted from the accident.” (Vega v. MTA Bus Co., 96 AD3d 506, 507 [1st Dept 2012].) Here, defendants submitted the affirmed reports of Dr. Zimmerman, an orthopedic surgeon, and Dr. Jayaram, a neurologist. (Feinstein Affirm., Exs K, L.)
Dr. Zimmerman measured, using a goniometer, normal ranges of motion in plaintiff's cervical spine and lumbar spine. (Feinstein Affirm., Ex K.) Dr. Jayaram also measured, with a goniometer, normal ranges of motion in plaintiff's cervical spine, and normal ranges of motion in plaintiff's lumbar spine with regards to lateral flexion (right and left) and rotation (right and left). (Feinstein Affirm., Ex L.)
Dr. Jayaram did measure a limited range of motion in the flexion and extension in plaintiff's lumbar spine of 85 degrees (corresponding normal of 90 degrees). However, given that the 5 degree limitation is over a corresponding normal range of 90 degrees, that flexion and extension in plaintiff's lumbar spine is in one plane of motion (the sagittal plane), and that lumbar tests were negative, this limitation is considered insignificant for purposes of Insurance Law § 5102(d). (Licari v. Elliott, 57 N.Y.2d 230, 236 [1982] ; Osborne v. Diaz, 104 AD3d 486 [1st Dept 2013] [“a minor limitation in range of motion in a single plane of [the plaintiff's] cervical spine and lumbar spine, is not fatal to defendants' prima facie showing, where the neurologist found a full range of motion in every other plane, indicated that the deficits were subjective, and in light of the orthopedic surgeon's opinion that the strains/sprains were resolved”]; Canelo v. Genolg Tr., 82 AD3d 584 [1st Dept 2011] [“9% cervical disability and a 10% lumbar disability were not of sufficient magnitude to qualify as a significant' or important' limitation of use”]; Sone v. Qamar, 68 AD3d 566 [1st Dept 2009] [neurologist noted a 20–degree limitation on flexion in plaintiff's lumbosacral spine].)
Plaintiff points out that, in Dr. Zimmerman's and Dr. Jayaram's reports, the corresponding normal values for some ranges of motion referred to a range of values (e.g., normal is “45–60 degrees”) rather than a single numeric value (e.g., “60 degrees”). Plaintiff also points out that some of Dr. Zimmerman's corresponding normal values differed from Dr. Jayaram's corresponding normal values. For example, for lateral right and left cervical movement, Dr. Zimmerman stated that the corresponding normal value was 30–45 degrees; Dr. Jayaram stated the corresponding normal value was 30–60 degrees.
However, “[a]ny discrepancies in the experts' stated normal values for certain ranges of motion are insignificant, especially since a full range of motion was demonstrated in every plane.” (Gibbs v. Reid, 94 AD3d 636, 636 [1st Dept 2012].) That is, the range of motion that Dr. Zimmerman measured would still be considered a normal range of motion applying Dr. Jayaram's corresponding normal values, and vice-versa.
Plaintiff argues that a report that expresses a corresponding normal value as a range of values does not meet defendant's prima facie burden of serious injury, citing Lee v. M & M Auto Coach Ltd . (2011 N.Y. Slip Op 30667[U], 2011 WL 1101010 [Sup Ct, Nassau County 2011] ) and Ramirez v. Castaneda–Valle, 2012 N.Y. Slip Op 32647[U], 2012 WL 5288050 [Sup Ct, Suffolk County 2012].) In both Lee and Ramirez, the defendants' orthopedic surgeon, Dr. Isaac Cohen, expressed corresponding normal values as a range. In Lee, the court ruled that Dr. Cohen's report was not sufficient to meet defendant's prima facie burden, reasoning
“Dr. Cohen's comparative analysis of the Plaintiff's range of motion to the purported normal' range of motion for the particular body part that was being tested lacked specificity in that he did not compare the purported limitation to a definitive “normal” reading. Rather, Dr. Cohen compared the results to a purported normal' range which varied at times up to 20 degrees ... Dr. Cohen references a spectrum' of degrees that would qualify as a normal' reading for a particular body part without indicating what other clinical components, unrelated to range of motion (i.e., age), may factor into the ultimate determination of where the normal reading should fall within that spectrum for that particular patient .”
(Lee, 2011 WL 1101010.) In Ramirez, the court stated,
“the medical report of defendants' expert orthopedist, Dr. Cohen, is deficient, since the normal range of motion measurements that he set forth for plaintiff consists of variable ranges of motion, thereby, leaving the court to speculate as to the normal values and under what circumstances those variable ranges occur.”
(Ramirez, 2012 WL 5288050.)
This Court respectfully declines to follow Lee and Ramirez, to the extent that these decisions stand for the proposition that a corresponding normal value for a range of motion expressed in a medical report must be expressed as a single normal value for defendants to meet their prima facie burden. In essence, plaintiff disputes the reliability of the range of values upon which defendants' doctors rely to determine a normal range of motion. Absent supporting medical evidence that corresponding normal values of a range of motion cannot be expressed as a range of values, plaintiff's argument goes to the weight of the report, not its admissibility. (Cf. Kang v. Almanzar, 116 AD3d 540 [1st Dept 2014] [plaintiff's argument that defendants' expert orthopedist selected normal values that were substantially lower than those he used in other cases raises an issue of credibility].)
Therefore, defendants have met their prima facie burden of summary judgment dismissing so much of the complaint as alleges a serious injury based on the categories of permanent consequential limitation of use or a significant limitation of use.
Plaintiff fails to raise a triable issue of fact warranting denial of summary judgment. The reports that plaintiff submitted from Dr. Yanovskaya and Dr. Gashinskaya are neither affirmed nor sworn. (Gechlik Opp. Affirm., Ex A.) The neurology records of Dr. Tagayun and records from plaintiff's chiropractor are not in admissible form. (Gechlik Opp. Affirm., Exs C, D.)
However, the unauthenticated EMG/NCV study and the MRI reports may be considered on this motion because Dr. Jayaram appears to have reviewed these records in preparing his own report. (See Boateng v. Ye Yiyan, 119 AD3d 424 [1st Dept 2014] ; see also Kearse v. New York City Tr. Auth., 16 AD3d 45, 47 n 1 [2d Dept 2005] [“this Court has held that even a reference to the unsworn or unaffirmed reports in the moving papers is sufficient to permit the plaintiff to rely upon and submit these reports in opposition to the motion”]; but see Hernandez v. Almanzar, 32 AD3d 360 [1st Dept 2006] [“The defense experts' review of such unaffirmed reports (as noted in their reports) did not open the door to plaintiffs' reliance on them”].) Plaintiff also submitted an affirmation from Dr. Brownstein, who reviewed diagnostic films taken of plaintiff and found disc herniations at L4–L5 and L5–S1. (Gechlik Opp. Affirm., Ex G.)
Nevertheless, a radiologist's finding of a herniated disc, in itself, “is insufficient to establish a serious injury; additional objective medical evidence of significant physical limitations resulting from the herniation is required.” (Rivera v. Gonzalez, 107 AD3d 500, 500–501 [1st Dept 2013].) Here, plaintiff did not submit any competent evidence of such significant physical limitations.
As to 90/180 day category, defendants met their prima facie burden of summary judgment, based on plaintiff's testimony at the statutory hearing and deposition. Plaintiff testified that nothing in his life had changed since the motor vehicle collision, and that he was never confined to home. (Thompson EBT, at 28, 31–32.)
Plaintiff fails to raise a triable issue of fact warranting denial of summary judgment as to the 90/180 day category. As mentioned above, the medical reports made during the 180 days following the motor vehicle collision that plaintiff submitted are not in admissible form.
Therefore, defendants' motion for summary judgment dismissing the complaint is granted.
CONCLUSION
Accordingly, it is hereby
ORDERED that defendants' motion for summary judgment is granted, and the complaint is dismissed with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in defendants' favor accordingly.