Opinion
INDEX NO. 153051/2015
02-26-2019
HERMES VARGAS, Plaintiff, v. SAHABUDDIN HOWLADGER, JONATHAN SIMION Defendant.
NYSCEF DOC. NO. 98 MOTION DATE 12/12/2018 MOTION SEQ. NO. 002
DECISION AND ORDER
HON. ADAM SILVERA: The following e-filed documents, listed by NYSCEF document number (Motion 002) 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95 were read on this motion to/for JUDGMENT - SUMMARY.
Before the Court is defendants' motion for summary judgment, for an Order pursuant to CPLR §3212 granting summary judgment in favor of defendants, Shabuddin Howladger and John Simon and to dismiss plaintiff Hermes Vargas' complaint on the grounds that plaintiff has failed to demonstrate that he suffered a "serious injury" as defined under Section 5102(d) of the Insurance Law. Plaintiff opposes the motions.
This matter stems from a motor vehicle incident which occurred on August 16, 2013, on Meeker Avenue at or near its intersection with Morgan Avenue, in the County of Kings, City and State of New York, when a vehicle operated by defendant John Simion and owned by defendant Shabuddin Howladger struck a vehicle operated by plaintiff Hermes Vargas which allegedly led to his serious injury.
Defendants' motion for summary judgment, pursuant to CPLR 3212, against plaintiff on the issue of "serious injury" as defined under Section § 5102(d) of the Insurance Law is denied in part and granted in part. "The 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 eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure ... to do [so]" (Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).
In order to satisfy their burden under Insurance Law § 5102(d), a plaintiff must meet the "serious injury" threshold (Toure v Avis Rent a Car Systems, Inc., 98 NY2d 345, 352 [2002] [finding that in order to establish a prima facie case that a plaintiff in a negligence action arising from a motor vehicle accident did sustain a serious injury, plaintiff must establish the existence of either a "permanent consequential limitation of use of a body organ or member [or a] significant limitation of use of a body function or system"]).
Defendants allege that plaintiff has failed to demonstrate the existence of a "serious injury" as defined under Section 5102(d) of the Insurance Law. Defendants allege that the injuries plaintiff is seeking relief for stem from degenerative pre-existing conditions. In support of their motion, defendants submit doctor affirmations and plaintiff's deposition.
Defendants claim that MRI films taken post-accident reveal that plaintiff did not have evidence of recent trauma and exhibited evidence of pre-existing degenerative findings to the bilateral knee and cervical/lumbar spine (Mot, Exh G). Defendants assertion of degenerative conditions is bolstered by the August 30, 2016, report by Dr. Audrey Eisenstadt (id.). The report notes that injuries to plaintiff's left knee "is degenerative in origin and has no traumatic etiology or association with the incident" (id.) As to the right knee, Dr. Eisenstadt opined that plaintiff's injuries "are all degenerative changes, common in distribution and appearance for arthritis, which could not have developed in two weeks' time and indicate pre-existing degenerative joint disease" (id.).
Dr. Eisenstadt also found degenerative disc disease as the cause for injury to the lumbar spine and states that "[a]t no level is there an osseous contusion or annular tear seen to indicate a traumatic bony injury or intervertebral disc rupture causally related to the 08/16/13 incident" (id.). As for plaintiff's cervical spine, Dr. Eisenstadt found indications of degenerative disc disease and also found that, like the lumbar spine, "[a]t no level is there an osseous contusion or annular tear seen to indicate a traumatic bony injury or intervertebral disc rupture causally related to the 08/16/13 incident" (id.). Defendants, citing to Perl v Meher, 18 NY3d [2011], argue that they have eliminated the accident as a cause of the conditions alleged and have thus eliminated all categories of the No-Fault statute.
In opposition, plaintiff's responding medical reports raise an issue of fact precluding dismissal of the Complaint; however, the opposition fails to raise an issue of fact as to the cervical spine, left knee and right knee. Plaintiff's doctors do not note that the accident at issue exacerbated plaintiff's pre-existing conditions in the cervical spine, left knee and right knee. In Rosa v Delacruz, 32 NY3d 1060, 2018 N.Y. Slip Op. 07040 [2018], the Court of Appeals found that where a plaintiff's doctor opined that tears were causally related to the accident, but did not address findings of degeneration or explain why the tears and physical deficits found were not caused by the preexisting degenerative conditions, plaintiff failed to raise a triable issue of fact as it "failed to acknowledge, much less explain or contradict, the radiologist's finding. Instead, plaintiff relied on the purely conclusory assertion of his orthopedist that there was a causal relationship between the accident" (See id.).
Here, plaintiff submits the medical report of Dr. Ajoy K. Sinha who acknowledges degenerative findings and notes that plaintiff has "degenerative change at L4-L5 and more extensive at L5-S1" but still concludes that plaintiff's "lumbar spine injuries are causally related and permanent in nature" (Aff in Op, Exh A at 7). Plaintiff's medical reports, aside from as to the lumbar spine, contain purely conclusory assertions that the rest of plaintiff's injuries are causally related to the underlying incident. Plaintiff's physicians fail to address the degenerative conditions to the cervical spine, right knee, and left knee. Thus, plaintiff has failed to raise an issue of fact and the branch of defendants' motion for summary judgment on the issue of "serious injury" as against plaintiff is granted only as to the cervical spine, right knee and left knee.
Accordingly, it is
ORDERED that defendants' motion for summary judgment to dismiss plaintiff's Complaint on the grounds that plaintiff allegedly has not sustained a "serious injury" as defined in 5102 and 5104 of the Insurance Law is denied; and it is further
ORDERED that the branch of defendants' motion for summary judgment on the issue of serious injury is granted as against plaintiff solely as to plaintiff's alleged cervical spine, right knee and left knee injuries; and it is further
ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon defendants with notice of entry. This Constitutes the Decision/Order of the Court. 2/26/2019
DATE
/s/ _________
ADAM SILVERA, J.S.C.