Opinion
Index No. 24050/2018E Motion Seq. No. 1
01-28-2022
ALEXANDER VILORIO, Plaintiff, v. STEPHEN ADJEI and "JOHN DOE" Defendants.
Unpublished Opinion
DECISION/ORDER
VERONICA G. HUMMEL, A.S.C.J.
In accordance with CPLR 2219 (a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF relevant to the motion of defendants STEPHEN ADJEI and "JOHN DOE" (defendants) [Mot. Seq. 1], made pursuant to CPLR 3212, for an order dismissing the complaint on the ground that plaintiff ALEXANDER VILGRIO (plaintiff) has not sustained a "serious injury" as defined by Insurance Law 5102(d).
This is a negligence action to recover damages for personal injuries that plaintiff allegedly sustained as a result of a motor vehicle accident that occurred on December 26, 2016 (the Accident).
In the bill of particulars and opposition papers, in relevant part, plaintiff alleges that as the result of the Accident he suffered injuries that satisfy the following Insurance Law 5102(d) threshold categories: permanent consequential limitation; significant limitation; and 90/180 days. Plaintiff testified that he was confined to home for approximately one week following the Accident.
Defendants now seek summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" under Insurance Law 5102(d). Defendants argue that plaintiff's claimed injuries are not "serious," and that any injuries or conditions from which plaintiff suffers are not causally related to the Accident.
While plaintiff has the burden of establishing a prima facie case of "serious injury" at trial (Licari v. Elliott, 57 N.Y.2d 230 [1982]), defendants on a summary judgment motion must first present evidence establishing that plaintiff has not sustained a "serious injury" as a matter of law, and only after that burden has been met must plaintiff go forward and submit evidence to raise a question of fact (Franchini v Palmieri, 1 N.Y.3d 536 [2003]; Brown v Mat Enterprises of N.Y. Inc., 97 A.D.3d 401 [1st Dept 2012]). Defendants bear the initial burden of establishing the absence of a serious injury as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (McElroy v Sivasubramaniam, 305 A.D.2d 944 [3d Dept 2003]). Only if defendants meet this burden to establish prima facie entitlement to summary judgment are the opposition papers considered.
It then becomes incumbent on the plaintiff to submit proof, in admissible form, of the existence of triable issues of fact with regard to the existence of a serious injury (Franchini v Palmieri, supra; Shinn v Catanzaro, 1 A.D.3d 195 [1st Dept. 2003]; see Cabrera v Ahmed, 2020 N.Y. Slip Op. 07129 [1st Dept 2020]). Specifically, plaintiff must demonstrate that there is a serious injury under the Insurance Law, that summary judgment is not warranted and that the action mandates resolution by trial. Additionally, and equally important, plaintiff must establish, through admissible medical evidence, that the injuries sustained are causally related to the accident claimed (see Pommells v Perez,4 N.Y.3d 566 (2005); Tusu v Leone, 187 A.D.3d 655 [1st Dept 2020]).
The underlying motion is supported by the pleadings, the bill of particulars, plaintiff's deposition transcript, and the expert affirmation of Dr. Yormak (orthopedist).
Dr. Yormak bases his opinion on the details of a physical examination conducted on plaintiff on October 12,2020.The doctor states that he reviewed, among other things, the bill of particulars, the police report, and plaintiff's medical records.
As for the cervical spine, the expert finds forward flexion 40 degrees (50 normal), extension 40 degrees (60 normal), right and left rotation 45 degrees (80 normal), and right and left bend 15 degrees (45 normal). In terms of the thoracic spine, the forward flexion is 30 degrees (45 normal), normal extension, and left and right rotation 20 degrees (30 degrees normal). The lumber spine showed a range of motion of forward flexion 40 degrees (60 normal), extension 5 degrees (25 normal) and left and right lateral bend 15 degrees (25 degrees normal). As diagnoses the doctor finds cervical spine and lumbar spine "resolved".
In the opinion section, the expert opines that the MRI of the cervical and thoracic spines do not show any fractures, tears, disc bulges or herniations identified of any known time frame and cannot be classified as there is no fracture or prior study. Further treatments are not medically necessary. He states that plaintiff's "symptoms of cervical, thoracic, lumbar sprains are directly caused by the motor vehicle accident and all treatment received was related causally to the accident of record". There is no history of pre-existing injury or condition that impact the current accident. Plaintiff can return to work as a taxi driver fully duty without restriction. Plaintiff is not disabled.
The expert then opines that "on examination, there are no objective clinical findings that correlate with [plaintiff's] subjective complaints." There is no need for further treatment. He opines that the proximate cause of the injuries diagnosed was the Accident, and the mechanism of injury does support the subjective complaints.
Based on the submissions, defendants fail to set forth a prima facie showing that plaintiff did not suffer a serious injury to the relevant body parts under the permanent consequential limitation or significant limitation categories by tendering sufficient evidence to eliminate any material issues of fact from the case (McElroy v Sivasubramaniam, supra; see Stovall v N.Y.C. Transit Auth., 181 A.D.3d 486 [1st Dept 2020]; see Olivare v Tomlin, 187 A.D.3d 642 [1st Dept 2020]). Based on the defense's expert's findings of significant positive range of motion results in plaintiff's cervical, thoracic and lumbar spines as well as the positive straight leg lifts and casually relating plaintiff's injuries to the Accident, the defendant's own doctor creates an issue of fact under the permanent consequential limitation and significant limitation categories (Balram v CJ Transport, LLC, 127 A.D.3d 796 [2d Dept 2015]; Skinner v Juste, 243 A.D.2d 554 [2d Dept 1997]).
In any event, plaintiff's submission generate an issue of fact as to the categories. Plaintiff opposes the motion, submitting an affidavit, an attorney affirmation, plaintiff's medical records and the reports/affirmations, among others, of Dr. Bhatia (neurologist), and Dr. Pomerantz (radiologist).
In total, plaintiff's evidence raises triable issues of fact as to plaintiff's claims of "serious injury" as to the cervical spine (Morales v Cabral, 177 A.D.3d 556 [1st Dept 2019]). Plaintiff's submissions demonstrate that plaintiff received medical treatment for the claimed injuries after the Accident, and that plaintiff had substantial limitations in motion in the relevant body part after the Accident and at the recent examination by plaintiff's expert in July 2021 (see Perl v Meher, 18 N.Y.3d 208 [2011]). Plaintiff's expert finds that, as a result of the Accident, and not degeneration, plaintiff suffered injury to the cervical spine, resulting in a decreased range of motion. The expert opine that these injuries are significant and causally related to the Accident and permanent in nature and the Accident was the primary competent cause of the injuries (Morales v Cabral, supra; see Aquino v Alvarez, 162 A.D.3d 451, 452 [1st Dept 2018]). Furthermore, the MRI review by the plaintiff's expert confirms the injuries. Under the circumstances, plaintiffs submissions generate a question of fact as to whether plaintiff suffered a serious injury under the threshold categories of permanent consequential limitation and significant limitation as to the cervical spine. Of course, if a jury determines that plaintiff has met the threshold for serious injury, it may award damages for any injuries causally related to the accident, including those that do not meet the threshold (Morales v Cabral, supra; Rubin v SMS Taxi Corp., 71 A.D.3d 548 [1st Dept 2010]).
In contrast, defendants establish, based on plaintiffs testimony, prima facie that there was no 90/180 day injury, and plaintiffs submissions fail to generate an issue of fact as to the issue (Morales v Cabral, supra).
The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby
ORDERED that the motion of defendants STEPHEN ADJEI and "JOHN DOE" (defendants) [Mot. Seq. 1], made pursuant to CPLR 3212, for an order dismissing the complaint on the ground that plaintiff ALEXANDER VILGRIO (plaintiff) has not sustained a "serious injury" as defined by Insurance Law 5102(d) is denied.
The foregoing constitutes the decision and order of the court.