Opinion
Index No. TS-300112-18/KI
11-19-2021
YB, Plaintiff, v. Daniela C. CAREY and Thomas F. Carey, Defendants.
Daniel Eric Rausher, Esq., 186 Joralemon Street, Suite 701, Brooklyn, NY 11201, (718) 596-7333, Counsel for Plaintiff James G. Bilello & Associates, 875 Merrick Avenue, Westbury, NY 11590, (516) 229-4353, Counsel for Defendants
Daniel Eric Rausher, Esq., 186 Joralemon Street, Suite 701, Brooklyn, NY 11201, (718) 596-7333, Counsel for Plaintiff
James G. Bilello & Associates, 875 Merrick Avenue, Westbury, NY 11590, (516) 229-4353, Counsel for Defendants
Sandra E. Roper, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION
NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2
AFFIRMATION IN SUPPORT & EXH. ANNEXED 3-4
AFFIRMATION IN OPPOSITION & EXH. ANNEXED 5-6
REPLY & EXH. ANNEXED 7-8
INTRODUCTION
Defendant moves This Honorable Court by Notice of Motion for Summary Judgment pursuant to CPLR 3212 premised upon Plaintiff's failure to have sustained a Serious Injury pursuant to NY INS 5104 (a) as defined by NY INS 5102 (d) and for such other and further relief deemed just and proper. For the reasons set forth below, Defendant's Motion for Summary Judgment is hereby GRANTED .
PROCEDURAL AND FACTUAL HISTORY
This personal injury action in negligence commenced by Plaintiff YB arises from Motor Vehicle Accident (MVA) involving collision of Defendants’ motor vehicle with 15 year-old minor Pedestrian YB on October 29, 2010 at or around 1:22 PM on McDonald Avenue near its intersection with Bay Parkway in Brooklyn, New York. YB was thereafter transported by ambulance to the Maimonides Medical Center Emergency Department in which medical records stated that he was "hit by a slow-moving car and c/o lower back and left foot pain" (affirmation in opposition, exhibit A). ED Discharge Instructions states the primary diagnosis as "Motor vehicle accident (MVA) — unspecified injury" and the secondary diagnosis as "Contusion — foot" (id. ). ED attending physician, Dr. Patrick McGrory, concluded after a series of tests and x-rays that YB's diagnosis did not require admission, but he may be sore with neck and shoulder muscle pain for which icing was instructed (id. ). ED x-ray report of the sacrum coccyx, dated October 29, 2010 although indicating no fracture, found a transitional segment at L5-S1 on the left (id. ).
About a week thereafter after missing school, YB sought treatment from Dr. Ahmed A. ElSoury of Recover Medical on November 5, 2010. During YB's examination a series of tests were conducted: Disability Index; Neck Disability Index Questionnaire; Oswestry Low Back Pain Disability Questionnaire; Roland Morris Disability Questionnaire; Shoulder Pain and Disability Index; and Knee Score Questionnaire but no range of motion tests (see affirmation in opposition, exhibit A). Dr. ElSoury diagnosed Plaintiff with displacement of lumbar intervertebral discs; Lumbar sprain /strain; Lumbar radiculitis ; Lumbago; and Contusion of the left foot, and recommended the following therapy treatments: Hot/Cold packs, Electrical stimulation, Therapeutic massage, Ultrasound, Range of motion and stretching exercises with frequency of three to four times a week, and referred Chiropractic Specialist, Nicolas A. Fennelli, DC and Acupuncture Specialist, Natalia Shatokhin, LAc and Physical Therapist (name illegible). LAc Shatokhin evaluated YB on same date finding that his chief complaint was moderate constant bilateral back pain (did not specify what part of back) and complained of mild periodic left toe pain. Oriental Medical Diagnosis as Foot Tai Yin SP, Foot Tai Yang UB, Foot Yang Ming ST, and Foot Jue Yin LV was checked off by LAc Shatokhin and treatment recommendation of three times a week as needed of distal acupuncture points and local acupuncture points without specification of body part or parts to be treated. Further, on same date, Chiropractic Specialist, Nicolas A. Fennelli, DC of Alignment Chiropractic Care P.C. examined Plaintiff and found the following Range of Motion (ROM) measurements:
Plaintiff failed to provide credentials with cv for Dr. ElSoury, therefore unsure as to his specialty.
| Cervical Normal/Actual | Lumbar Normal/Actual | |
| Flexion | 80/40 | 80/30 |
| Extension | 70/30 | 30/15 |
| Right Rotation | 90/40 | 35/15 |
| Left Rotation | 90/50 | 35/20 |
| Right Lateral Flexion | 45/20 | 25/10 |
| Left Lateral Flexion | 45/25 | 25/15 |
(affirmation in opposition, Exhibit A). DC Fennelli crossed out the ROM for Thoracic on the form without explanation whereas Dx Codes, indicated which were checked off: 739.1, Cervical Subluxation; 739.2, Thoracic Subluxation; 739.3, Lumbar Subluxation; 846.1, Sacroilliac Spist; 847.0, Cervical Sprain /Strain; 847.1, Thoracic Sprain /Strain; 847.2, Lumbar Sprain /Strain.
Dr. ElSoury thereafter referred YB to Julius Tapan for Physical Capacity Testing on December 2, 2010 and a Re-Evaluation of the Physical Capacity Testing on December 31, 2010. On December 8, 2010, Dr. Elsoury conducted a Spinal Range of Motion Exam, Lumbar Range of Motion Exam, and Computerized Muscle Testing Exam on Plaintiff. On the Spinal Range of Motion Exam report, Cervical and Thoracic sections were left blank. Lumbar indicated the following:
| Norm | Rep 1 | Rep 2 | Rep 3 | Valid | Max | Avg | Dev | Impair | |
| Left Lateral | 25 + | 10 | 10 | 11 | Yes | 11 | 10 | 1° | 3% |
| Right Lateral | 25 + | 9 | 9 | 9 | Yes | 9 | 9 | 0° | 5% |
| Min Lordosis | 15 + | 9 | |||||||
| Flexion | 60 + | 35 | 34 | 34 | Yes | 35 | 34 | 1° | 5% |
| Extension | 25 + | 12 | 12 | 13 | Yes | 13 | 12 | 1° | 5% |
(affirmation in opposition, exhibit A). On same date, Boubert Carline, PA prescribed Thermophore, LSPO Flexible Elastic, Orthopedic Lumbar Cushion, Bed Board, and Egg Crate Mattress for Plaintiff. Additionally, Plaintiff received an MRI of the lumbar spine at Excel Imaging, P.C. (id .).
By report dated December 5, 2010, Board Certified Radiologist Dr. Mark Shapiro reviewed YB's December 2, 2010 MRI and found "T1 and T2 weighted images in multiple planes through the intervertebral disc spaces demonstrate straightening of the normal lumbar lordosis. There is a levoscoliosis The L3-4 and L4-5 discs are normal in height and signal. There are left foraminal herniations, creating nerve root impingement" (affirmation in opposition, exhibit A). At December 22, 2010 appointment, Dr. ElSoury's report stated that multi trigger point injections at lumbar left and lumbar right were administered to help release tension and muscle spasms and E.M.S. Unit 4 Lead/Accessory Kit, E.M.S. Placement Belt, Infra-Red Heating Lamp, Massager, and Hydrotherapy Whirlpool were prescribed. Dr. ElSoury thereafter referred YB for physical therapy three to four times a week for four weeks on his lower back and left foot using hot moist packs, ultrasound, therapeutic massage, electrical stimulation/TENS, therapeutic exercises, therapeutic activities, manual therapy techniques, and aqua med.
Dr. Stephen Wilson of PMR at Austin Diagnostic Medical, P.C. conducted neurological evaluation and electro-diagnostic studies on January 24, 2011 and reported YB's lower back pain, radiating from the left buttock, left lower extremity is associated with paresthesia and tingling sensation in the left lower extremity and toes. Dr. Wilson further states upon a general physical examination, "[m]oderately painful spasm of the paravertebral musculature in the lumbar area. Tenderness and pain at palpation of some trigger points at lower back on left side. Range of Motion: Flexion, Extension, Lateral Bending, Lateral rotation — decreased. Pain on Extreme ROM" (affirmation in opposition, exhibit A). A Nerve Conduction Study (NCV) and Electromyography (EMG) (B) LE were ordered due to the prolonged complaints of low back pain, paresthesia in lower extremities, which were not abated with therapy. Dr. Wilson recommended a continuation of "[c]hiro, massage, accu and PT 3-4 times weekly to relieve pain and muscle spasm, increase ROM and muscle strength, and achieve structural integrity" and home exercise was discussed (id. ). Dr. Wilson's prognosis states in part, "The patient has experienced derangement of function of the lumbo-sacral spine. Superimposed upon natural aging and degenerative process in the patient's spine, this injury, most probably, will result in a permanent reduction in the normal range of motion of the lumbar spine" (id. ).
YB's lumbo-sacrum was treated with acupuncture on November 8, 2010, November 12, 2010, November 16, 2010, November 19, 2010, November 20, 2010, November 29, 2010, December 2, 2010, December 18, 2010, December 20, 2010, December 24, 2010, December 29, 2010, January 3, 2011, January 10, 2011, January 14, 2011, January 17, 2011, January 28, 2011, and February 2, 2011. YB's initial physical therapy evaluation on November 8, 2010 with complaints of lower back and foot pain resulted in treatments with hot packs, massage, and electrical stimulation on the lumbosacral area on November 8, 2010, November 10, 2010, November 12, 2010, November 16, 2010, November 17, 2010, November 19, 2010, November 22, 2010, November 24, 2010, November 29, 2010, December 2, 2010, December 3, 2010, December 7, 2010, December 8, 2010, December 17, 2010, December 21, 2010, January 28, 2011, February 3, 2011, February, 7, 2011, February 9, 2011, and February 14, 2011 (affirmation in opposition, exhibit A).
Dr. ElSoury performed follow up examination on March 2, 2011, to determine the effectiveness of therapeutic measures on Plaintiff's complaints. These tests were a spinal range of motion exam, lumbar range of motion exam, and a computerized muscle testing exam. The spinal range of motion exam returned the following results for Plaintiff's lumbar on that date:
| Norm | Rep 1 | Rep 2 | Rep 3 | Valid | Max | Avg | Dev | Impair | |
| Left Lateral | 25 + | 12 | 14 | 13 | Yes | 14 | 13 | 1° | 3% |
| Right Lateral | 25 + | 11 | 12 | 11 | Yes | 12 | 11 | 1° | 3% |
| Min Lordosis | 15 + | 10 | |||||||
| Flexion | 60 + | 35 | 38 | 36 | Yes | 38 | 36 | 2° | 5% |
| Extension | 25 + | 13 | 14 | 12 | Yes | 14 | 13 | 1° | 5% |
(affirmation in opposition, exhibit A). Further, Dr. ElSoury reported YB's lumbosacral spine ROM on March 23, 2011 as the following:
| Lumbosacral Spine Normal/Actual | |
| Flexion | 90/45 |
| Extension | 30/15 |
| Right Rotation | 30/15 |
| Left Rotation | 30/15 |
| Right Lateral Flexion | 35/20 |
| Left Lateral Flexion | 35/20 |
(affirmation in opposition, exhibit A). It was not until follow-up examination on April 6, 2011 that YB first complained of interscapular/mid back pain to Dr. ElSoury. Dr. ElSoury's report concluded, "as a direct result of the injuries sustained by [Plaintiff] on October 29, 2010, there were extremes of joint movement with concomitant stretching and tearing of the muscolo-ligamentous structures of the lumbar spine and other affected areas It is my opinion that such weakness might predispose the areas affected to further aggravation that might not have been otherwise bothering the [Plaintiff] before the accident [T]hese areas will be permanently weakened resulting in significant and permanent restricted mobility" (id. ). Further, Dr. ElSoury reports that "to a reasonable degree of medical certainty the condition that the patient has developed is solely related and has a direct causal relationship to the accident of October 29, 2010" (id. ).
Defendant's orthopedic medical expert Dr. Gregory Chiaramonte examined YB on April 6, 2016 and reviewed: verified bill of particulars, MRI report of the lumbar spine, from Excel Imaging, P.C., dated 12/02/2010, emergency department and other medical records from Maimonides Medical Center, dated 10/29/2010, x-ray report of the sacrum coccyx, from Maimonides Medical Center, dated 10/29/2010, progress notes from Maimonides medical center, dated 10/29/2010, evaluation report dated 04/06/2011, by Ahmed A. Elsoury, M.D., initial acupuncture evaluation, report dated 11/05/2010, by Nccaom, consultative report dated 01/24/2011, by Stephen Wilson, M.D., physical capacity testing (static lift) evaluation report dated 12/02/2010, physical capacity testing (static lift) re-evaluation report dated 12/31/2010, progress notes dated 11/05/2010 through 01/28/2011 (illegible signature), physical therapy initial evaluation report dated 11/08/2010, illegible signature, injection report from Recover Medical Services, P.C., dated 12/22/2010, physical therapy treatment record dated 11/19/2010 through 12/02/2010, from Ahmed A. Elsoury, M.D.’s office, chiropractic examination report dated 11/05/2010, illegible signature, spinal range of motion and computerized muscle testing report from Recover Medical Services, M.D., dated 12/08/2010 and 03/02/2011, EMG/NCV testing report from Austin Diagnostic Medical, P.C., dated 01/24/2011, NIOSH Static Strength Testing report dated 12/02/2010 and 12/31/2010, outcome assessment testing summary report dated 11/05/2010, and ED discharge instructions from, Maimonides Medical Center, dated 10/29/2010 (see affirmation in support, exhibit G).
Dr. Chiaramonte found no muscle spasm upon palpation over the parathoracic muscles and over the paralumbar muscles. There were no complaints of tenderness upon palpation over the parathoracic and paralumbar muscles. Plaintiff's straight leg raise was negative. There was no heat, swelling, effusion, erythema, crepitus, instability, and atrophy appreciated of Plaintiff's left ankle and foot. Dr. Chiaramonte's report concluded that "there is no evidence of a permanent disability there is no need for orthopedic treatment including physical therapy" (affirmation in support, exhibit G). According to Dr. Chiaramonte's April 6, 2016 report (id. ), Plaintiff's range of motion on that date are as follows:
| Cervical Normal/Actual | Lumbar Normal/Actual | |
| Flexion | 50°/50° | 60°/80° |
| Extension | 60°/60° | 25°/25° |
| Right Rotation | 80°/80° | |
| Left Rotation | 80°/80° | |
| Right Lateral Flexion | 45°/45° | 25°/25° |
| Left Lateral Flexion | 45°/45° | 25°/25° |
| Right Ankle/Foot Normal/Actual | Left Ankle/Foot Normal/Actual | |
| Dorsiflexion | 20°/20° | 20°/20° |
| Plantar Flexion | 40°/40° | 40°/40° |
| Sub Inversion | 30°/30° | 30°/30° |
| Sub Eversion | 20°/20° | 20°/20° |
Defendant's radiologic medical expert Dr. Evan Mair reviewed YB's December 2, 2010 MRI of lumbar spine and concluded by report dated August 19, 2017, "the straightening and curvature of the lumbar spine is a nonspecific finding, which may be related to muscle spasm or patient positioning during exam ... the findings of degenerative disc desiccation and narrowing, and multilevel disc bulging, and absence of disc tear or herniation, are not causally related to the reported injury of October 29, 2010" (affirmation in support, exhibit G).
YB filed Summons and Verified Complaint in Kings County Supreme Court under Index No. 18222/13 on October 15, 2013. Issue was joined on November 18, 2013 upon Defendants’ filing Verified Answer. YB appeared for an examination before trial on March 4, 2016. On April 30, 2018, the matter was transferred to Kings County Civil Court pursuant to CPLR § 325 (d) without challenge to the Serious Injury Threshold. Upon Plaintiff's filing of the Note of Issue, Defendants moved to strike the note of issue, which was granted by decision and order dated January 24, 2020. YB filed intervening personal injury action in New York State Supreme Court Kings County on June 12, 2020, titled YB v New York University , Index No. 515860/2020. This instant Motion for Summary Judgment pursuant to CPLR § 3212 premised upon NY INS 5104 (a) dismissing the complaint was filed on January 13, 2021. Upon Plaintiff's application and Defendants’ consent, oral argument was adjourned twice for a total of over 7 months. Without any justification, excuse, or communication, Plaintiff failed to appear for oral argument held on September 30, 2021.
DISCUSSION
In this instant matter, Defendant moves by notice of motion to establish that as a matter of law, the admissible evidence tendered within the motion papers make out a prima facie entitlement to summary judgment pursuant to CPLR 3212 for which the standard of proof is set forth by CPLR 3212 (b), which states:
"Supporting proof ; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion."
It is well-established law that summary judgment is a drastic remedy in that it deprives the non-movant party of her day in court and should only be granted if there is no material and triable issue of fact ( Sillman v Twentieth Centurv-Fox Film Corp. , 3 NY2d 395 [1957] ; Alvarez v Prospect Hosp. , 68 NY2d 320 [1986] ). The burden is upon movant to make its prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to demonstrate the absence of any material issue of fact ( Winegrad v New York Univ. Med. Center , 64 NY2d 851, 853 ; Zuckerman v City of New York , 49 NY2d 557, 562 ; Sillman v Twentieth Century-Fox Film Corp. , 3 NY2d 395, 404 ; see also Giuffrida v Citibank , 100 NY2d 72 [2003] ). It must clearly appear to the court that unequivocally there is no material and triable issue of fact presented from the motion papers ( Di Menna & Sons v City of New York , 301 NY 118 [1950] ). Where the court finds an existence of such an issue or where the issue may be so deemed "arguable" requires denial of summary judgment ( Braun v Carey , 280 App Div 1019 [3d Dept 1952] ; Barrett v Jacobs , 255 NY 520, 522 [1931] ). "Issue-finding, rather than issue-determination, is the key to the procedure" for the court ( Esteve v Avad , 271 App Div 725, 727 [1st Dept 1947] ; Gravenhorst v Zimmerman , 236 NY 22, 38-39 [1923] ). In evaluating a motion for summary judgment, a court is not to engage in determining credibility of an issue, but rather whether there exists an issue that requires determination of credibility ( S.J. Capelin Assoc. v Globe Mfg. Corp. , 34 NY2d 338 [1974] ). Moreover, where the court finds that there is even one material relevant issue that requires determination of credibility, in and of itself is sufficient for denial of motion ( Sillman v Twentieth Century Fox Film Corp. , 3 NY2d 395, 404-05 [1957] ). Where the court finds but a scintilla of doubt as to the existence of a triable issue of fact in dispute, summary judgment must be denied ( Moskowitz v Garlock , 23 AD2d 943 [3d Dept 1965] ).
When reviewing the motion, the papers must be strictly scrutinized in the light most favorable to the opposing party and inferences that may be drawn therefrom must be accepted as true ( Dykeman v Heht , 52 AD3d 767, 769, 861 NYS 2d 732 [2d Dept 2008] ; see Pearson v Dix McBride , 63 AD3d 895, 883 [2nd Dept 2009] ; Robinson v Strong Mem. Hosp. , 98 AD2d 976 [4th Dept 1983] ). Movant has the initial burden of coming forward with admissible evidence to support the finding of a prima facie entitlement as to warrant the court's directing judgement in movant's favor as a matter of law notwithstanding sufficiency of opposition or lack thereof ( Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985] ). Once movant's burden has been met, burden to rebut then shifts to the opposition to demonstrate, by admissible evidence, the existence of a material factual issue in dispute requiring a factfinder's determination at trial (see Friends of Animals v Associated Fur Mfrs. , 46 NY2d 1065, 1067 [1979] ; see also Alvarez v Prospect Hosp. , 68 NY2d 320 [1986] ; Zuckerman v Citv of New York , 49 NY2d 557 [1980] ). Opposition must "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he [or she] rests his [or her] claim or must demonstrate an acceptable excuse" for failure to so do ( id. at 560 ; Pride Acquisitions LLC v Benson , 2012 NY Misc LEXIS 5839, 2012 NY Slip Op 33065 [U] [Sup Ct 2012]). Conclusory vague contrived protestations not relevant nor material to overcome the burden to defeat judgement as a matter of law cannot be relied upon. Nor may opposition papers to rebut rely upon general overbroad allegations or mere immaterial non-relevant facts or law, unsupported by competent admissible evidence sufficient to require a trial ( Fileccia v Massapequa Gen. Hosp., 63 NY2d 639 [1984] ; Bustamonte v Koval , 98 AD2d 739 [2d Dept 1983] ; Pan v Coburn , 95 AD2d 670 [1st Dept 1983] ; Himber v Pfizer Labs. , 82 AD2d 776 [1st Dept 1981] ; Baldwin v Gretz , 65 AD2d 876 [3d Dept 1978] ; Century Ctr. Ltd. v Davis , 100 AD2d 564 [2d Dept 1984] ). Thus, where non-movant provides such admissible proof as to the existence of any material issue of fact that lends itself to doubt, equivocation or credibility then this issue of fact must be determined by the factfinder either by judge or jury precluding summary judgement ( Moskowitz v Garlock , 23 AD2d 943, 259 NYS 2d 1003 [3d Dept 1965] ).
INSURANCE LAW 5102(d) SERIOUS INJURY THRESHOLD MOTION FOR SUMMARY JUDGMENT
Deliberation in a motion for summary judgment personal injury action pursuant to Comprehensive Motor Vehicle Insurance Reparations Act, NY INS Article 51, commonly known as the No-Fault Law is uniquely nuanced. Whereas a mere scintilla of doubt or an issue that is arguable may end the inquiry as sufficient to defeat a motion for summary judgment as a matter of law in other personal injury cases, not necessarily so in a No-Fault personal injury action. Pursuant to NYS INS 5104 (a) as well developed in precedential case law, due deliberation in a Serious Injury Threshold motion for summary judgment demands a heightened level of scrutiny, analysis, and evaluation of the substantive contents of competing admissible medical evidence or lack thereof. So much so, deliberation requires hyper-focused determination of the characterization and depiction of alleged limitations as to whether mild, minor or slight. Notwithstanding such inquiry is deemed necessary in the Serious Injury context, it nevertheless, veers ever so close to encroaching upon the role of factfinder. However, it has been well established as salient permissible inquiry in the Serious injury context (see Broderick v Spaeth , 241 AD2d 898 [2d Dept 1997], lv denied 91 NY2d 805 [1998] ; see also Gaddy v Eyler , 167 AD2d 67, 72 [3d Dept 1991], affd 79 NY2d 955 [1992] ; Mikl v Shufelt , 285 AD2d 949, 950, 728 NYS 2d 816 [3d Dept 2001] ). Unaddressed, ignored or overlooked inconsistency in admissible evidence in personal injury matters generally in and of itself, is sufficient to raise material triable issue of fact to defeat motion for summary judgment. Whereas, in Serious Injury motion for summary judgment, unaddressed, ignored, or overlooked inconsistency in the contents of the admissible medical evidence by either party which may have indeed otherwise raised or controverted a mere scintilla of doubt or may be deemed arguable in and of itself, may nevertheless be fatal to offending party's position (see Devito v Anatra , 189 AD3d 1175,1176, 134 NYS 3d 237, 238 [2d Dept 2020] ; Rosa v Delacruz , 158 AD3d 571, 71 NYS 3d 55 [1st Dept 2018] ; Lamar v Anastasi , 188 AD3d 1637, 1638, 135 NYS 3d 717, 719 [4th Dept 2020] ). It is insufficient to merely remain silent on a material issue of fact within the medical records with the expectation that such silence in and of itself, no matter how thorough on all other medical evidence, will suffice to grant Serious Injury Threshold motion for summary judgment dismissal as a matter of law or, alternatively, in denial for rebuttal opposition's silence. Allowance of such litigation tactics would serve to frustrate and undermine the legislative intent underlying the No-Fault Law, to "eliminate statutorily-insignificant injuries or frivolous claims" ( Toure v Avis Rent a Car Sys. , 98 NY2d 345, 351, 774 NE2d 1197, 1200, 746 NYS 2d 865, 868, 2002 NY LEXIS 1994, *13 [2002] ). The recurring vexing dilemma for due deliberation in furtherance of the legislative intent is the separation of serious injury cases, "which may proceed in court, from the mountains of other auto accident claims, which may not" ( Pommells v Perez , 4 NY3d 566, 571, 830 NE2d 278, 280-281, 797 NYS 2d 380, 382-383, 2005 NY LEXIS 1041, *3 [2005] ). A defendant's two main arguments made pursuant to No-Fault Law is either lack of causation; or plaintiff's personal injuries alleged in complaint as further amplified in bill of particulars fails to fit within one of the enumerated categories as defined by NY INS 5102 (d) :
"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 eighty days immediately following the occurrence of the injury or impairment.
The first five of the enumerated categories are rather straightforward and generally unimpeachable as prima facie serious injury. In this instant matter however, 15 year-old Pedestrian Plaintiff alleges soft-tissue injuries claiming limitations pursuant to the most litigious final four of the defined categories: permanent loss of use of a body organ, member, function or system; permanent consequential limitation of a body organ or member; significant limitation of use of a body function or system; and 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 90 days during the 180 days immediately following the occurrence of the injury or impairment.
Notwithstanding a general principle in the motor vehicle accident personal injury Bar, "Steel [vehicle] should never touch Flesh [pedestrian]" (The Late Leon A. Milman, Esq.) , the advent of the No-Fault Law Serious Injury Threshold significantly constrains this principle.
90/180 DEFINED CATEGORY
Pedestrian 15 year-old High School Student Plaintiff, though transported by ambulance from the site of the subject accident on October 29, 2010 to Maimonides Medical Center Emergency Department, was discharged after approximately 4 hours. It was a week later that he sought further medical treatment. At deposition, Plaintiff testified that he was confined to bed for one week after the accident and that he was confined to home for one and half weeks after the accident. Plaintiff's testimonial admissions clearly evinces that he was not prevented from performing substantially all the material acts constituting his customary daily activities as a result of a medically determined injury or impairment of a non-permanent nature during the required statutory period of at least 90 days within the first 180 days following the subject accident. By his own admission, Plaintiff fails to raise a triable issue of fact pursuant to this defined category (see Licari v Elliott , 57 NY2d 230, 236, 441 NE2d 1088, 1091, 455 NYS 2d 570, 573, 1982 NY LEXIS 3699, *14, 33 ALR 4th 759 [1982] ; Strenk v Rodas , 111 AD3d 920, 920, 976 NYS 2d 151, 152, 2013 NY App Div LEXIS 7886, *2, 2013 NY Slip Op 7959, 1, 2013 WL 6183885 [2d Dept 2013] ; Hasner v Budnik , 35 AD3d 366, 368, 826 NYS 2d 387, 388-389, 2006 NY App Div LEXIS 14556, *4, 2006 NY Slip Op 9168, 2 [2d Dept 2006] ). Thus, Defendant has met its burden to have established prima facie that Plaintiff did not sustain a Serious Injury pursuant to the 90/180 Day defined category, which is wholly irrefutable, irrebuttable and not meaningfully challenged in opposition by Plaintiff.
Permanent Loss of Use of a Body Organ, Member, Function or System
Here, Plaintiff's alleged injuries are all soft tissue with quantitative and qualitative limitations of use. Findings of degrees of limitations are insufficient to establish permanent loss of use. It is well established, there must be a total loss of use in order to satisfy the Serious Injury threshold ( Oberly v Bangs Ambulance , 96 NY2d 295, 297, 751 NE2d 457, 727 NYS2d 378 [2001] ; Hock v Aviles, 21 AD3d 786, 788, 801 NYS 2d 572, 574, 2005 NY App Div LEXIS 9155, *4-5, 2005 NY Slip Op 6732, 2 [1st Dept 2005] ; Crespo v Kramer , 295 AD2d 467, 468, 744 NYS2d 187 [2d Dept 2002] ). Consequently, it is obvious that Defendant has met its prima facie burden that Plaintiff did not sustain a Serious Injury pursuant to the permanent loss of use of a body organ, member, function, or system, which was likewise not meaningfully challenged in opposition by Plaintiff.
Permanent Consequential Limitation of a Body Organ or Member
It is well established, to prove permanency of medically determined injury pursuant to NY INS 5102 (d) of a permanent consequential limitation of a body organ or member, although there is no requirement that contemporaneous quantitative measurements be proffered (as opposed to qualitative), there must be recent medical finding of continuing disability or limitation of use as result of the accident ( Perl v Meher , 18 NY3d 208, 217, 960 NE2d 424, 428, 936 NYS 2d 655, 659, 2011 NY LEXIS 3320, *7, 2011 NY Slip Op 8452, 4 [2011]revg 74 AD3d 930, 931, 902 NYS 2d 632 [2d Dept 2010] ). Defendant's expert Dr. Chiaramonte affirms in the admissible medical examination of a then, 20 year-old Plaintiff (held on April 6, 2016, 6 years after the accident) that alleged injuries have been resolved notwithstanding lumbar spine hyperflexion of 80 degrees (normal being 60 degrees). In conclusion, Dr. Chiaramonte found "no evidence of a permanent disability Mr. YB offers no complaints as a result of this examination and left the examining area stable and unchanged" (affirmation in support, exhibit G). Defendant thus satisfied prima facie burden that Plaintiff did not sustain Serious Injury of a permanent consequential limitation of a body organ or member pursuant to NYS INS 5102 (d). Where permanent consequential limitation is alleged, "plaintiffs are ... required to demonstrate restricted range of motion based on findings both contemporaneous to the accident and upon recent findings" ( Perl v Meher , 18 NY3d 208 at 217 ). Here, Plaintiff failed to provide admissible competent medical evidence of recent findings of continuing limitations from this subject accident to rebut and defeat Defendant's prima facie case of no serious injury. Plaintiff's attempt to rebut in arguing the alleged existence of recent medical records of continuing treatment and finding of limitations without any admissible proof, fails woefully. Plaintiff proffers an unsworn and thus lacking in probative value, 2019 MRI and merely alludes to alleged recent medical records after eight-year gap in treatment. In Reply, Defendant provides proof of subsequent intervening personal injury action filed by Plaintiff in New York State Supreme Court Kings County on June 12, 2020, titled YB v New York University , Index No. 515860/2020. After which, without any justification, excuse, or communication whatsoever and after Plaintiff's application for several adjournments, Plaintiff did not appear for oral argument to address the gap in treatment (last cognizable medical treatment date of March 23, 2011) in relation to Plaintiff's subsequent unrelated personal injury accident (alleged date of November 7, 2019). Such that, an eight-year gap between last cognizable medical treatment and the alleged new accident interrupts and intervenes the chain of causation as to permanency of claimed injuries from this subject accident (see Pommells v Perez , 4 NY3d 566, 570-571, 830 NE2d 278, 797 NYS 2d 380 [2005] ). As discussed supra, a party may not merely remain silent on an issue in expectation that the mere silence in and of itself shall create the scintilla of triable fact or the arguable triable issue of fact sufficient to defeat a Serious Injury threshold motion for summary judgment. On the contrary, Plaintiff chose to ignore and remain silent here on this unexplained gap in treatment after cessation of treatment argued by Defendant, whilst amid an intervening unrelated personal injury action, after introducing through mere intimations and hints of uncorroborated inadmissible medical treatment records in Plaintiff counsel's affirmation, which is lacking in personal knowledge, of alleged recent continuing treatment is of no moment and is hereto wholly and completely disregarded. To give license to such litigation tactics and practices similarly frustrates the overarching legislative intent of the No-Fault Law. Thus, Plaintiff fails to rebut Defendant's prima facie case for summary judgment as a matter of law pursuant to NYS INS 5102 (d) defined category of a permanent consequential limitation of a body organ or member.
Significant Limitation of Use of a Body Function or System
In this instant matter, Defendants satisfied their prima facie burden establishing that Plaintiff did not sustain serious significant injuries to his left foot nor his cervical, thoracic nor lumbar spine within the meaning of the No-Fault Insurance Law by proffer of competent medical evidence (see Toure v Avis Rent A Car Sys. , 98 NY2d 345, 774 NE2d 1197, 746 NYS2d 865 [2002] ; Gaddy v Eyler , 79 NY2d 955, 956-957, 591 NE2d 1176, 582 NYS2d 990 [1992] ). Defendants’ experts provided the competent medical admissible evidence: Dr. Chiaramonte, who examined Plaintiff and concluded after quantitative range of motion diagnostic measurements in comparison to clinical norms and qualitative clinical observations that Plaintiff had normal use of left foot and cervical, thoracic, and lumbar spine, as well as Dr. Mair's examination of the MRI films attributing Plaintiff's lumbar spine injuries to preexisting degenerative condition which is not causally related to subject accident. Although degeneration and desiccation are predominantly found in the older patient demographic, Dr. Chiaramonte specifically referenced this 15 year-old Plaintiff's sacrum-coccyx x-ray results at Maimonides Medical Center Emergency Department on the day of the subject accident which found "a transitional segment at L5-S1 on the left" (affirmation in opposition, exhibit A). Since Plaintiff denied any prior accident or sustaining of injuries before the subject accident at examination with Dr. Chiaramonte, it has been deemed that such x-ray finding in such a 15 year-old of the sacrum coccyx is congenital in origin and therefore a preexisting condition. Thus, it is Plaintiff's own medical treatment records that initially evinces preexisting lumbar spine condition consistent with Defendants’ expert finding of degeneration and desiccation even though Plaintiff is of the young age of 15 years-old.
"Lumbosacral transitional vertebrae (LSTVs) are a congenital vertebral anomaly of the L5-S1 junction in the spine. "Transitional vertebra" is a fairly common spinal deformity, in which the lowest vertebrae of the spine, the fifth lumbar vertebra, is partially fused to the top of sacrum here we have a vertebral birth defect that is found in pain-free people about as often as it is found in cases of back pain." Transitional vertebrae are a fairly common spinal deformity (Paul Ingraham, PainScience, Transitional Vertebrae Are a Fairly Common Spinal Deformity , https://www.painscience.com/biblio/transitional-vertebrae-are-a-fairly-common-spinal-deformity.html [Feb. 15 2021], citing Alexios Apazidis , Pedro A Ricart, Christopher M Diefenbach & Jeffrey M Spivak, The Prevalence of Transitional Vertebrae in the Lumbar Spine , Spine J. 2011 Sep 11 (9): 858—62 [2011] available at https://pubmed.ncbi.nlm.nih.gov/21951610/ [last accessed Nov. 19, 2021]).
"Lumbosacral transitional vertebrae (LSTV) are congenital spinal anomalies, in which an elongated transverse process of the last lumbar vertebra fuses with varying degree to the "first" sacral segment" (Jeffrey M. Jancuska, BA, Jeffrey M. Spivak, MD & John A. Bendo, MD, A Review of Symptomatic Lumbosacral Transitional Vertebrae: Bertolotti's Syndrome , Int J Spine Surg. 2015; 9: 42. [Jul 29, 2015] available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4603258/ [last accessed Nov. 19, 2021]).
Accordingly, burden then shifted to Plaintiff to rebut Defendant's prima facie case by demonstrating that there is a triable issue of fact for the jury to determine whether there is serious injury under this defined category for the left foot and cervical, thoracic and lumbar spine. In rebuttal, Plaintiff supported his claims by proffer of the affirmation of treating Dr. ElSoury incorporating the treatment records of chiropractor, acupuncturist and physical therapist, which were reviewed and relied upon by Defendants’ experts. Although chiropractor, acupuncturist, physical therapist and Maimonides Medical Center medical records were not certified by jurat, Defendants experts’ reliance on these records render these medical records admissible for Plaintiff's use in his rebuttal. Another unique anomaly albeit well established allowable practice in No-Fault Serious Injury threshold motions (see Irizarry v Lindor , 110 AD3d 846, 848, 973 NYS2d 296, 298, 2013 NY App Div LEXIS 6627, *5, 2013 NY Slip Op 6659, 2, 2013 WL 5629608 [2d Dept 2013] ; Shafiqul Azam v New York City Health & Hosps. Corp. , 98 AD3d 595, 596, 949 NYS2d 722 [2012] ; Zarate v McDonald , 31 AD3d 632, 633, 819 NYS2d 288 [2006] ; Thompson v Abbasi , 15 AD3d 95, 97, 788 NYS2d 48 [2005] ). A "minor, mild or slight limitation of use [is] classified as insignificant within the meaning of the [No-Fault] statute" ( Licari v Elliott, 57 NY2d 230, 236 [1982] ; Scheer v Koubek, 70 NY2d 678 [1987] ; Gaddy v Eyler , 79 NY2d 955, 957, 582 NYS2d 990, 991, 1992 NY LEXIS 927, *3, 591 NE2d 1176 [1992] ). Where findings of sprains, strains and mildly diminished or no diminution of quantitative range of motion as it is found here for Plaintiff's left foot injury, it has not been deemed to constitute Serious Injury (see Scotto v Suh , 50 AD3d 1012, 1013, 857 NYS 2d 185, 186, 2008 NY App Div LEXIS 3563, *2, 2008 NY Slip Op 3629, 1 [2d Dept 2008] ; Vishnevsky v Glassberg , 29 AD3d 680, 681, 815 NYS2d 152 [2006] ; Shepley v Helmerson , 306 AD2d 267, 760 NYS2d 228 [2003] ). There was but mere mention of contusion to the left foot and painful left toe with acupuncturist noting Oriental diagnosis with no specific treatments beyond icing. Indeed, the acupuncturist and physical therapy notes for the most part indicated treatments to the lower back and no mention of treatments to left foot nor cervical and thoracic spine. Although admissibility of Plaintiff's unsworn medical records is not at issue, failure of Plaintiff's treating physician affiant Dr. ElSoury or any other treating doctor to address or remain silent on Defendants’ Dr. Chiaramonte and Dr. Mair's findings of preexisting degeneration and desiccation of the lumbar spine, which is Plaintiff's major complaint, as initially discovered in Plaintiff's x-ray on the day of the subject accident is fatal to Plaintiff's rebuttal (see Devito v Anatra , 189 AD3d 1175, 1176, 134 NYS 3d 237, 238, 2020 NY App Div LEXIS 7768, *2, 2020 NY Slip Op 07544, 1, 2020 WL 7379972 [2d Dept 2020] ; Mnatcakanova v Elliot , 174 AD3d 798, 800, 106 NYS 3d 112 [2d Dept 2019] ; Zavala v Zizzo , 172 AD3d 793, 99 NYS 3d 354 [2d Dept 2019] ; Cavitolo v Broser , 163 AD3d 913, 914, 81 NYS 3d 188 [2d Dept 2018] ). Plaintiff's Dr. ElSoury found that all injuries were causally connected to the subject accident, without any explanations of preexisting findings causing degeneration in lumbar spine based upon Plaintiff's x-ray. Plaintiff's treating Dr. Stephen Wilson's "most probably" statement as to preexisting injury and degeneration is speculative and conclusory and fails to meaningfully address Defendants’ Dr. Chiaramonte and Dr. Mair's findings. Plaintiff counsel's attempt to remedy this deficit of competent medical submissions through his affirmation is of no probative value and cannot be considered as admissible evidence in this inquiry, but merely legal argument devoid of corroborating admissible medical evidence. Further, Plaintiff's argument as to Dr. Chiaramonte's failure to report quantitative ranges of motion for thoracic spine is without merit where, Plaintiff's Dr. ElSoury likewise did not so provide. Further, that Defendant's Dr. Mair found bulges but no herniations is also of no moment since it is well established such findings do not signify per se Serious Injury sans significant quantitative limitations, which was clearly addressed by Dr. Chiaramonte, and sans causation, which was also clearly addressed by Defendant's Dr. Mair and buttressed by Plaintiff's very own treatment x-ray which Plaintiff failed to effectively address (see Pommells v Perez , 4 NY3d at 571 ). Further, Plaintiff's argument as to Dr. Chiaramonte's failure to explain range of motion hyperflexion of the lumbar spine of 80 degrees in comparison to the norm of 60 degrees, is deemed inconsequential in this deliberation given the totality of the circumstances here. It is concluded that with the totality of all the circumstances herein supra, with a less than six-month period of non-aggressive treatments of mostly lumbar spine, none to left foot and mere mention of cervical and thoracic without specific treatments performed, with a ten-year gap in treatment without explanation by Plaintiff, renders left foot and cervical, thoracic and lumbar spine injuries complained of as not fitting within this defined category pursuant to NY INS 5102 (d). Therefore, Plaintiff fails to rebut Defendants’ prima facie case of no Serious Injury as to significant limitation of use of a body function or system.
For the foregoing reasons, Defendant's Motion for Summary Judgment pursuant to CPLR 3212 premised upon NY INS 5104 (a) is hereby GRANTED ;
This Case is Dismissed.
This constitutes the opinion, decision, and order of This Honorable Court.
SO ORDERED.