Opinion
573/03.
Decided November 29, 2005.
HARRY ORGANEK, Esq., Roslyn, New York, PLTF'S/PET'S ATTY.
BAXTER SMITH, P.C., Jericho, New York, DEFT'S/RESP'S ATTY.
Upon the following papers numbered 1 to 20 read on this motion /summary judgment Notice of Motion/OSC and supporting papers 1-20; Notice of Cross-Motion and supporting papers; Affirmation/affidavit in opposition and supporting papers; Affirmation/affidavit in reply and supporting papers; Other; (and after hearing counsel in support of and opposed to the motion) it is,
ORDERED that defendants Kara J. Taranto and Thomas Taranto's motion for summary judgment is granted under the circumstances presented herein. (CPLR 3212; Insurance Law 5102 (d))
This action arose out of a motor vehicle accident that occurred on September 23, 2000 on Route 25 at or near its intersection with Homercrest Avenue, Huntington, Suffolk County, New York in which plaintiff Jessica Winterling allegedly sustained a serious personal injury. As a basis of the instant motion, the defendants assert that the plaintiff has not sustained such serious injury as defined by Insurance Law 5102 (d).
In opposition to the instant motion the plaintiff avers that the motion is untimely; that is, that the motion was served 128 days after the filing of the note of issue and as such, is not in compliance with the requirements of CPLR 3212 (a) that the motion must be served within 120 days of the filing of the note of issue. However, contrary to the plaintiff's assertion, the note of issue was filed with the Clerk of the Court on January 6, 2005 and accordingly, the defendants' motion is timely.
Insurance Law section 5102 (d) provides in part that "serious injury means 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 and eighty days immediately following the occurrence of the injury or impairment." (Insurance Law 5102 (d)) In the context of the plaintiff's claims, the term "consequential" means important or significant ( Kordana v. Pomellito, 121 AD2d 783, 503 N.Y.S.2d 198, 200 [3rd Dept. 1986], App. Dis. 68 NY2d 848, 508 N.Y.S.2d 425) The term, "significant" as it appears in the statute has been defined as "something more than a minor limitation of use" and the term "substantially all" has been construed to mean "that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment." ( Licari v. Elliott, 57 NY2d 230, 455 N.Y.S.2d 570)
On a motion for summary judgment to dismiss the complaint for failure to set forth a prima facie case of serious injury as defined by Insurance Law 5102 (d), the initial burden is on the defendant "to present evidence, in competent form, showing that the plaintiff has no cause of action." ( Rodriguez v. Goldstein, 182 AD2d 396, 582 N.Y.S.2d 395, 396 [1st Dept. 1992]) Once the defendant has met the burden, the plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. ( DeAngelo v. Fidel Corp. Services, Inc., 171 AD2d 588, 567 N.Y.S.2d 454, 45 [1st Dept 1991]) Such proof in order to be in a competent or admissible form, shall consist of affidavits or affirmations (Pagano v. Kingsbury, 182 AD2d 268, 587 N.Y.S.2d 692 [2nd Dept. 1992]). The proof must be viewed in a light most favorable to the non-moving party. ( Cammarere v. Villanova, 166 AD2d 760, 562 N.Y.S.2d 808, 810 [3rd Dept. 1990]).
The plaintiff has alleged by way of her bill of particulars that she has sustained the following injuries: Lumbosacral nerve root lesion and bilateral L5-S1 radiculopathy; persistent low back pain with radiation into the left thigh and frequent severe sharp pain shooting into the left gluteal area; severe restriction of straight leg raising, possible up to 0 degrees on the right and 60 degrees on the left; persistent left hip and buttock pain with radiation into the left thigh; severe restriction of joint function at L1-L5 and the left ilium; severe amount of hypertonic muscle contraction in the lumbar paraspinal muscles bilaterally and gluteal muscles on the left with a strong degree of pain and discomfort; abnormal somatosensory evoked potentials (SSEP) of the lower extremities indicative of (+) bilateral L5-S1 sensorineural radiculopathy; needle electrorayography revealed evidence of enervation potentials of the right and left L5-S1; lumbar strain/sprain; thoracic sprain and upper back pain; severe cervical sprain with persistent fixation at C3-T6 and hypertonicity and spasm of the muscles in the cervical paraspinal muscles bilaterally and upper thoracic muscles bilaterally and with pain which radiates into the left shoulder to the lateral aspect of the arm; loss of motion in the C5-C7 segments upon flexion and extension; and plaintiff's condition has been determined to be chronic and persistent.
The defendants in support of the instant motion have submitted the affirmed reports of Frederick S. Mortati, M.D., a neurologist and Stephen E. Borkow, M.D., an orthopedist. Dr. Mortati conducted an examination of the plaintiff on September 22, 2004 and also had an opportunity to review relevant medical records. After such examination and review he concluded that "this patient's left low back and thigh pains are not on the basis of a lumbosacral radiculopathy or any other neurological pathology" and the results of the neurological examination, were normal. Dr. Borkow examined the plaintiff on November 10, 2004 as well as reviewed relevant medical records and stated in his affirmed report that she sustained a cervical and lumbar sprain with no objective evidence of orthopedic disability. Accordingly, based upon the foregoing, the movants have demonstrated, as a matter of law that the plaintiff has not sustained a serious injury. (see Reeves v. Scopaz, 227 AD2d 606, 643 N.Y.S.2d 620 [2nd Dept. 1996]; Horan v. Mirando, 221 AD2d 506, 633 N.Y.S.2d 402 [2nd Dept. 1995])
In opposition thereto, the plaintiff has submitted the reports of two of her treating physicians: Allamprabhu S. Patil, M.D., a neurologist, dated and affirmed on August 2, 2005 and Gregory Papadopoulus, D.C., a chiropractor dated and sworn to on August 2, 2005. It is well settled that "to successfully oppose the motion, plaintiffs must set forth competent medical evidence based upon objective medical findings and diagnostic tests to support [their] claim * * *' of a serious injury ( Tankersley v. Szesnat, 235 AD2d 1010, 1012, 653 N.Y.S.2d 184, quoting Eisen v. Walter Samuels, 215 AD2d 149, 150, 626 N.Y.S.2d 109)." ( Trotter v. Hart, 285 AD2d 772, 728 N.Y.S.2d 561, 562 [3rd Dept 2001]) However, Dr. Patil's report indicates that the plaintiff first sought treatment on June 6, 2001 and was not examined by him again until May 21, 2005, a gap of approximately 4 years Dr. Papadopoulus began treatment on May 25, 2001 and continued treatment until October 19, 2001 which appears to have been her final treatment date. Neither report addresses the almost four year gap in treatment. It has consistently been held that failure to explain an extended gap between the termination of the plaintiff's initial treatment and his present course of treatment, renders the medical proof insufficient to establish a serious injury. ( Uber v. Heffron, 286 AD2d 729, 730 N.Y.S.2d 174 [2nd Dept. 2001]; Medina v. Zalman Reis, 239 AD2d 394, 658 N.Y.S.2d 37 [2nd Dept. 1997])
Accordingly, based on the foregoing and the circumstances presented herein, the plaintiff has failed to raise an issue of fact as to whether she has sustained a serious injury as set forth in Insurance Law 5102 (d), and as such, the defendants' motion for summary judgment is granted.
This constitutes the decision and order of the Court.
Submit judgment.