Opinion
Index No.: 504530/2018
06-15-2023
Alberto L. VAZQUEZ and Dallagnia Vazquez, Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY and Steven Leader, Defendants.
Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:
NYSCEF Doc #s 53-74; 88-89 by Defendants
NYSCEF Doc #s 78-87 by Plaintiffs
Upon the foregoing cited papers and oral argument on February 15, 2023, pursuant to CPLR § 3212, the Court grants in part and denies in part Defendants New York City Transit Authority ("NYCTA") and Steven Leader's Summary Judgment Motion against Plaintiffs Alberto and Dallagnia Vazquez. Defendants’ motion is granted as to Plaintiffs’ claims concerning significant limitation of use of a body function category regarding Plaintiffs’ cervical and lumbar injuries. Defendants’ motion is denied as to Plaintiffs’ claims under the 90/180-day category and significant limitation of use of a body function category regarding both Plaintiffs’ knee injuries and Plaintiff Dallagnia's shoulder injury.
BACKGROUND
On March 6, 2018, Plaintiffs commenced the instant action to recover damages for personal injuries. On or about April 19, 2018, Defendants joined issue by service of their answer. On March 8, 2022, Plaintiffs filed the note of issue.
Plaintiffs’ verified complaint, the verified bill of particulars, and deposition transcript allege the following salient facts. On April 14, 2017, Plaintiffs were involved in a motor vehicle accident at or near the intersection of Surf Avenue and Stillwell Avenue in Brooklyn, New York. The accident involved a mobile wash truck owned by Defendant NYCTA and driven by Defendant Steven Leader, employed by NYCTA at the time of the accident. On the day of the accident, Plaintiffs went to Coney Island Hospital for emergency room medical treatment. As a result of this accident, Plaintiff Alberto claimed to have suffered injuries to his right knee, lumbar spine, and cervical spine, including central disc herniations at L5-S1, C3-C4 and C-4-C5. Plaintiff Alberto underwent surgery on his right knee on August 24, 2017. Plaintiff Dallagnia claimed to have suffered injuries to her left knee, left shoulder, lumbar spine and cervical spine, including central disc herniations at L4-L5, C3-C4, C4-C5 and C5-C6. Plaintiff Dallagnia underwent surgery on her left knee on June 28, 2018.
Plaintiffs allege they sustained serious injuries as defined by Article 51 of the Insurance Law and that Defendants are liable for these injuries. Pursuant to CPLR § 3212, Defendants move for summary judgment seeking dismissal of the case with prejudice on the grounds that Plaintiffs’ injuries do not satisfy the serious injury threshold defined in Insurance Law § 5102(d) because their knee injuries were not causally related to the accident at issue, and the remaining injuries are either pre-existing or are soft tissue injuries that do not meet the serious injury threshold prescribed by Insurance Law § 5102(d).
Papers:
Defendants’ motion papers consist of a notice of motion, an affirmation of counsel, a memorandum of law, and seventeen annexed exhibits labeled A through Q:
• Exhibit A is a copy of Plaintiffs’ summons and verified complaint;
• Exhibit B is the Verified Answer;
• Exhibit C is the Amended Verified Answer;
• Exhibit D is a Joint Trial Order;
• Exhibit E is the Verified Bill of Particulars;
• Exhibit F is a deposition transcript of Plaintiff Alberto Vazquez;
• Exhibit G is a deposition transcript of Plaintiff Dallagnia Vazquez;
• Exhibit H is Plaintiff Alberto's Coney Island Hospital Record;
• Exhibit I is the IME Review of Dr. Jeffrey Warhit (for Plaintiff Alberto);
• Exhibit J is the IME Report of Dr. Ira Chernoff (for Plaintiff Alberto);
• Exhibit K is the Report of Dr. Menegas (for Plaintiff Alberto);
• Exhibit's L and M are MRI scans of Plaintiff Alberto dated October 2, 2009;
• Exhibit N is a hospital report for Plaintiff Alberto dated September 9, 2013;
• Exhibit O is Plaintiff Dallagnia's Coney Island Hospital Record;
• Exhibit P is an Independent Radiological Review by Dr. Eisenstadt (for Plaintiff Dallagnia); and
• Exhibit Q is IME Report of Dr. Ira Chernoff (for Plaintiff Dallagnia).
Plaintiffs’ reply papers consist of an affirmation of counsel, an affidavit of Plaintiff Alberto, a Memorandum of Law, and seven annexed exhibits labeled A through G:
• Exhibit A is a more expansive Coney Island Hospital Record for Plaintiff Alberto;
• Exhibit B is Records of Conservative Treatment for Plaintiff Alberto;
• Exhibit C is three MRIs of Plaintiff Alberto dated April 24, 2017, July 16, 2017, and June 10, 2018;
• Exhibit D is Records of Orthopedic Examination and Surgery for Plaintiff Alberto;
• Exhibit E is Records of Conservative Treatment for Plaintiff Dallagnia;
• Exhibit F is four MRIs of Plaintiff Dallagnia dated April 24, 2017, June 13, 2017, July 16, 2017, and June 10, 2018; and
• Exhibit G is Records of Orthopedic Examination and Surgery for Plaintiff Dallagnia.
Analysis
It is fundamental that summary judgment may be granted only when it is clear that no triable issue of fact exists. Alvarez v. Prospect Hosp. , 68 NY2d 320 (1986) ; Herrin v. Airborne Frgt. Corp. , 301 AD2d 500 (2d Dept. 2003). The moving party has the burden to establish a prima facie showing that they are entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts. Pullman v. Silverman , 28 NY3d 1060 (2016) ; Alvarez , 68 NY2d at 325. If a prima facie showing has been established, the burden shifts to the opposing party to produce sufficient proof of the existence of material issues of fact. Alvarez , 68 NY2d at 325. Any materials proffered in opposition to summary judgment will be deemed insufficient if they constitute mere surmise, suspicion, speculation, or conjecture. Agulnick v. Agulnick , 191 AD3d 12 (2d Dept. 2020). Essentially, the role of the Court in addressing a motion for summary judgment is issue finding rather than issue resolution. Id. at 17 ; Trio Asbestos Removal Corp. v. Gabriel & Sciacca Certified Pub. Accountants, LLP , 164 AD3d 864 (2d Dept. 2015).
Pursuant to CPLR § 3212(b), the Court will grant summary judgment upon the determination that as a matter of law, the movant's papers justify holding that there is no defense to the cause of action or that the cause of action or defense has no merit. Goldstein v. County of Suffolk , 300 AD2d 441 (2d Dept. 2002). Moreover, all the evidence must be viewed in the light most favorable to the opponent of the motion. Marine Midland Bank v. Dino & Artie's Automatic Transmission Co. , 168 AD2d 610 (2d Dept. 1990).
Under Insurance Law § 5102(d), serious injury is defined as a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of 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 180 days immediately following the occurrence of the injury or impairment.
An injury must also be causally related to the accident to survive summary dismissal. Pommells v. Perez , 4 NY3d 566 (2005). Under Insurance Law 5102(d), the defendant bears the burden of establishing, by competent medical evidence, that the plaintiff did not sustain a serious injury caused by the accident. Toure v. Avis Rent a Car Sys., Inc. , 98 NY2d 345 (2002). Further, even where there is objective medical proof, if additional contributory factors—such as preexisting conditions, an intervening medical problem, or a gap in treatment—interrupt the chain of causation between the accident and claimed injury, summary dismissal may be appropriate. Pommells , 4 NY3d at 572.
Courts have recognized that to satisfy the statutory serious injury threshold under Insurance Law § 5102(d), plaintiffs are required to show objective proof of their injury. Toure , 98 NY2d at 350. To prove the extent or degree of the physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury; as can an expert's qualitative assessment, so long as there is an objective basis to the evaluation and the plaintiff's limitations are compared to the normal function, purpose, and use of the affected body organ. Id. at 350 ; Dufel v. Green , 84 NY2d 795 (1995).
Defendants failed to meet their prima facie burden that Plaintiffs did not suffer serious injury under the significant limitation of use of a body function category of Insurance Law § 5102(d). Courts have found that objective evidence of a torn meniscus in the knee may raise a triable issue of fact as to whether a plaintiff sustained significant limitation of use of a body function or system. Machat v. Mazzarino , 59 AD3d 500 (2d Dept. 2009) ; Squires v. Mumphery , 36 AD3d 607 (2d Dept. 2007) ; Pollas v. Jackson , 2 AD3d 700 (2d Dept. 2003). It has been established that objective evidence of a reduction in the full flexion of the knee, which requires evaluation for arthroscopic surgery, can establish a prima facie case of serious injury. Duarte v. Ester , 247 AD2d 356 (2d Dept. 1998) ; Assaf v. Ropog Cab. Corp. , 153 AD2d 520 (1st Dept. 1989).
Defendants aver that Plaintiffs’ knee and shoulder injuries are not causally related to the accident because the Coney Island Hospital Records from their visit on the day of the accident omits any reference of a complaint of knee or shoulder pain and contains the statement, "Musculoskeletal: Normal range of motion." However, Defendants’ arguments are not supported by objective medical evidence as none of the evaluations from Defendants’ doctors’ Warhit, Eisenstadt, or Chernoff explain why an omission of this information in the hospital records would mean that Plaintiffs’ knee injuries or shoulder injury were not caused by the accident, nor do they address what they state regarding the language of range of motion. In fact, both Dr. Warhit and Eisenstadt make no mention of the hospital records in their evaluations, as they were based solely on reviews of MRI scans and Dr. Chernoff simply states that he reviewed the hospital records, with no medical opinion as to why this omission would mean that Plaintiffs’ injuries were not caused by the accident. A three-day gap in receiving treatment is minimal and not enough by itself for the Court to grant summary judgment. See Mahabir v. Ally , 26 AD3d 314 (2d Dept. 2006) ; Hernandez v. Taub , 19 AD3d 368 (2d Dept. 2005) ; Neugebauer v. Gill , 19 AD3d 567 (2d Dept. 2005) ; and Slasor v. Elfaiz , 275 AD2d 771 (2d Dept. 2000) (multiple cases where a lengthy gap in treatment [i.e., multiple years] was unexplained by Plaintiff).
See D's Exhibit H (NYSCEF Doc. # 62) at pg. 6 and See D's Exhibit O (NYSCEF Doc. # 69) at pg. 6.
See D's Exhibit's I, J, P & Q (NYSCEF Doc. #’s 63, 64, 70 & 71).
D's Exhibit J at pg. 4.
Courts have found that when there is contradictory evidence submitted by defendants in their argument for summary judgment, there has been a failure to eliminate all triable issue of fact and summary judgment should be denied. Poverud v. Kwartler , 90 AD3d 729 (2d Dept. 2011) ; Coscia v. 938 Trading Corp. , 283 AD2d 538 (2d Dept. 2001). In cases where a defendant's expert finds significant limitations in a plaintiff's range of motion, without adequately explaining their opinion that the limitation is self-imposed, the defendant has failed to meet their prima facie burden under Insurance Law § 5102(d). Bertuccio v. Murdolo , 172 AD3d 988 (2d Dept. 2019) ; Rivas v. Hill , 162 AD3d 809 (2d Dept. 2018) ; Barnes v. New York City Tr. Auth. , 154 AD3d 800 (2d Dept. 2017) ; Miller v. Ebrahim , 134 AD3d 915 (2d Dept. 2015).
Here, Defendants’ own submissions of evaluations from Doctors Warhit and Chernoff contradict each other's findings regarding Plaintiff Alberto's right knee injury. Based on a review of the July 7, 2017 MRI, Doctor Warhit found that Plaintiff Alberto had no meniscus tear, while Doctor Chernoff found that Plaintiff Alberto's knee was "consistent with a medial meniscal tear status post arthroscopic surgery" and that there were limitations in Plaintiff Alberto's range of motion to his right knee. The same can be said for Plaintiff Dallagnia, where, based on a review of the June 13, 2017 MRI, Doctor Eisenstadt found that Plaintiff Dallagnia had no meniscus tear while Doctor Chernoff found limitations in the range of motion in her left knee. Also, Dr. Chernoff found significant limitations in the range of motion in Plaintiff Dallagnia's shoulder, thereby creating an issue of fact for a jury to resolve.
D's Exhibit I at pg. 2.
D's Exhibit J at pg. 4 (noting ROM is 100 vs. normal ROM at 120-150) & pg. 6.
See D's Exhibit P (NYSCEF Doc. # 70) at pg.’s 1 to 2.
See D's Exhibit Q (NYSCEF Doc # 71) at pg. 4 (noting ROM of 170 vs. normal ROM of 120 to 150) & pg. 7.
D's Exhibit Q at pg. 4 (noting ROMs of 90 and 130 vs. normal ROM of 150 to 180 and 170 to 180).
Accordingly, even if the Court found that Defendants’ submissions were sufficient to establish their prima facie burden, Plaintiffs’ opposition sufficiently raised a triable issue of fact. Machat v. Mazzarino , 59 AD3d 500 (2d Dept. 2009) ; Nigro v. Kovac , 45 AD3d 547 (2d Dept. 2007). Plaintiffs included an affirmation of the treating orthopedist who performed surgery on Plaintiff Alberto's knee 10 days after the accident and Plaintiff Dallagnia's knee approximately a year after the accident and treated Plaintiff Dallagnia's shoulder; an affirmation of their treating physician, who reported that an MRI taken approximately ten days after the accident revealed tears in Plaintiff Alberto's knee's menisci ligaments and an MRI taken approximately two months after the accident revealed tears in Plaintiff Dallagnia's knee's menisci ligaments; and an affirmation of the radiologist who supervised the Plaintiffs’ MRI's.
For the stated forgoing reasons, Defendants’ motion for summary judgment regarding Plaintiffs’ knee injuries not meeting the serious injury threshold under Insurance Law § 5102(d) is denied.
However, pursuant to Insurance Law § 5102(d), Defendants established that Plaintiffs did not suffer serious injury under significant limitation of use of a body function category with regard to Plaintiffs’ cervical and lumbar injuries. Plaintiffs failed to raise a triable issue of fact.
Defendants convinced this Court that Plaintiff Alberto's cervical and lumbar injuries do not meet the serious injury threshold because these injuries are not causally related to the accident, as his injuries pre-dated the 2017 accident and are mild soft tissue injuries that do not meet the prescribed threshold. Defendants provided the following unrefuted evidence: an examination report conducted by Dr. Jeffrey Menegas, who examined Plaintiff Alberto on September 30, 2009, after he was involved in a motor vehicle accident on July 23, 2009; a November 11, 2019 review of MRI scans dated July 16, 2017 and June 10, 2018 of Plaintiff Alberto's cervical and lumbar spine respectively, by Dr. Warhit; and a report of an evaluation of Plaintiff Alberto conducted by Dr. Chernoff on June 17, 2021. Defendants make the same arguments for Plaintiff Dallagnia's cervical and lumbar injuries, except for the injuries being caused or brought on by a prior accident. Defendants submitted a review of MRI scans dated June 10, 2018 and July 16, 2017 of Plaintiff Dallagnia's cervical and lumbar spine respectively, by Dr. Eisenstadt on January 26, 2022 and a report of an evaluation of Plaintiff Dallagnia conducted by Dr. Chernoff on June 17, 2021.
See D's Exhibit K (NYSCEF Doc. # 65).
D's Exhibit I at pg.’s 3 to 5.
D's Exhibit J.
D's Exhibit P.
D's Exhibit Q.
Defendants established that both Plaintiff Alberto's cervical and lumbar injuries and Plaintiff Dallagnia's cervical and lumbar injuries did not meet the serious injury threshold. Plaintiff Alberto's injuries did not meet the threshold because they were not causally related to the 2017 accident with their submissions of Dr. Menegas’ report finding Plaintiff Alberto sustained cervical and lumbar injuries in the 2009 accident, Dr. Warhit's finding that the MRI's showed degenerative changes in Plaintiff Alberto's cervical and lumbar spine, and Dr. Chernoff's finding of a full normal range of motion in Plaintiff Alberto's cervical and lumbar spine during his 2021 examination of him. Plaintiff Dallagnia's injuries did not meet the threshold because Dr. Eisenstadt's found that the MRI's showed degenerative changes in Plaintiff Dallangia's cervical and lumbar spine and Dr. Chernoff's finding of a full normal range of motion in Plaintiff Dallagnia's cervical and lumbar spine during his 2021 examination. See Pommells , 4 NY3d at 579 (where evidence of a preexisting degenerative condition established a prima facie showing of plaintiff not meeting serious injury threshold); and See Master v. Boiakhtchion , 122 AD3d 589 (2d Dept. 2014) ; Mohamed v. Siffrain , 19 AD3d 561 (2d Dept. 2005) (where evidence of full range of motion of affected body part established a prima facie showing of plaintiff not meeting serious injury threshold).
D's Exhibit K at pg.’s 3 to 5; Exhibit I at pg.’s 3 to 5; and Exhibit J at pg. 3.
D's Exhibit P at pg.’s 5 to 8; and Exhibit Q at pg. 4.
Plaintiffs failed to raise a triable issue of fact. The affirmation of the physician who took or supervised Plaintiff Alberto and Dallagnia's MRIs is not persuasive as it merely states that both Plaintiffs had bulging or herniated discs. The mere existence of a bulging or herniated disc is not evidence of a serious injury within the meaning of the no-fault law in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration. Kearse v. New York City Tr. Auth. , 16 AD3d 45 (2d Dept. 2005) ; Meely v. 4 G's Truck Renting Co., Inc. , 16 AD3d 26 (2d Dept. 2005).
The affidavit from Plaintiffs’ treating physician was not based upon recent examinations, with the latest re-evaluation occurring nearly four years prior to the affidavit. See Cerisier v. Thibiu , 29 AD3d 507 (2d Dept. 2006) ; Murray v. Hartford , 23 AD3d 629 (2d Dept. 2005) ; Farozes v. Kamran , 22 AD3d 458 (2d Dept. 2005) (plaintiff did not raise triable issue of fact because submissions were not based on recent examinations). While significant limitation of the use of a body function or member need not be permanent to constitute serious injury, an assessment of the significance of the limitation requires consideration not only of the extent of the limitation, but its duration as well. Schilling v. Labrador , 136 AD3d 884 (2d Dept. 2016) ; Lively v. Fernandez , 85 AD3d 982 (2d Dept. 2011).
Since Plaintiffs submitted objective medical findings from only one examination of the cervical and lumbar regions of their spine conducted shortly after the accident, they failed to raise a triable issue of fact to determine if the alleged injuries constituted serious injury under the significant limitation of use category of Insurance Law § 5102(d). Schilling , 136 AD3d at 884 ; Griffiths v. Munoz , 98 AD3d 997 (2d Dept. 2012).
Given Plaintiffs’ failure to raise a triable issue of fact, after Defendants met their prima facie burden, the portion of their summary judgment motion seeking dismissal pursuant to Insurance Law § 5102(d) is granted.
Defendants failed to establish that Plaintiffs did not suffer serious injury under 90/180-day category of Insurance Law § 5102(d). Although Defendants may rely upon the transcript of a plaintiffs’ deposition testimony to establish their prima facie entitlement to summary judgment under the 90/180-day category of Insurance Law § 5102(d) ( Jong Cheol Yang v. Grayline NY Tours , 186 AD3d 1501 [2d Dept. 2020] ), the evidence must identify the plaintiffs’ usual and customary activities during the specific relevant time frame and compare their pre- and post-accident activities during that time frame or it will be found insufficient. Hall v. Stargot , 187 AD3d 996 (2d Dept. 2020) ; Reid v. Edwards-Grant , 186 AD3d 1741 (2d Dept. 2020).
Defendants failed to eliminate triable issues of fact regarding the plaintiffs’ claim they sustained serious injuries under the 90/180-day category of Insurance Law § 5102(d). Che Hong Kim v. Kossoff , 90 AD3d 969 (2d Dept. 2011) ; Rouach v. Betts , 71 AD3d 977 (2d Dept. 2010). Defendants relied upon the transcript of Plaintiffs’ deposition testimony to establish entitlement to summary judgment under the 90/180-day category; specifically citing that Plaintiff Alberto testified he returned to work one month after the accident and Plaintiff Dallagnia testified that she was confined to bed for only three days after the accident. However, these depositions failed to identify Plaintiff Alberto and Dallagnia's usual and customary activities during the specific relevant time frame and did not compare their pre- and post-accident activities during that time frame. Therefore, Defendants failed to meet their prima facie burden, and the portion of their summary judgment motion seeking dismissal of plaintiffs’ claim of serious injury under the 90/180-day category of Insurance Law § 5102(d) is denied.
See D's Exhibit F (NYSCEF Doc. # 60) at pg. 105 & Exhibit G (NYSCEF Doc. # 61) at pg. 40
Thus, for the foregoing reasons, the Defendants’ summary judgment motion is granted as to Plaintiffs’ claims under the significant limitation of use of a body function category regarding both Plaintiffs’ cervical and lumbar injuries; however, Defendants’ motion is denied as to Plaintiffs’ claims under the 90/180-day category and significant limitation of use of a body function category regarding both Plaintiffs’ knee injuries and Plaintiff Dallagnia's shoulder injury.
All other relief not expressly addressed herein is denied.
This constitutes the Decision and Order of the Court.