Uruchima v Medina

[*1] Uruchima v Medina 2005 NY Slip Op 50197(U) Decided on February 18, 2005 Supreme Court, Kings County Harkavy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 18, 2005
Supreme Court, Kings County

Marianna Uruchima, Charles Mizhquri, an infant, by his mother and natural guardian Marianna Uruchima, Martha Mizhquri, an infant, by her mother and natural guardian Marianna Uruchima, and Sammy Robles, an infant, by his mother and natural guardian Marianna Uruchima, Plaintiffs,

against

Edi Molina Medina, Gerald Kearney and Anita Kearney, Defendants. Gerald Kearney and Anita Kearney, Third-Party Plaintiffs, v Acapulco Car Service, Third-Party Defendant.



37281/2003

Ira Harkavy, J.

defendants/third-party plaintiffs Gerald Kearney and Anita Kearney (collectively, "Kearneys" or "Movants") move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the causes of action asserted by plaintiffs Marianna Uruchima, Martha Mizhquri and Sammy Robles on the ground that each plaintiff [FN1] has not suffered a "serious injury" as that term is defined in Insurance Law § 5102 (d).[FN2] Defendant Edi Molina Medina ("Medina") and third-party defendant Acapulco Car Service ("Acapulco", and collectively with Medina, "Cross Movants") cross-move for the same relief on the same ground.

On January 15, 2001, the parties were involved in an automobile collision near the intersection of 65th Street and New Utrecht Avenue in Brooklyn. Plaintiffs were passengers in an automobile, owned and operated by defendant Medina, that collided with another automobile, owned by defendant Anita Kearney and operated by defendant Gerald Kearney. Plaintiffs sustained injuries as a result of the collision.

Thereafter, on or about December 4, 2003, plaintiffs commenced the instant action, alleging that defendants' negligence caused their injuries. The Kearneys interposed an answer that included cross claims against Medina. Subsequently, on or about April 21, 2004, the Kearneys commenced a third-party action against Acapulco, alleging that Acapulco owns the vehicle operated by Medina on the date of the subject accident. A copy of the third-party answer was not included in the motion papers. Discovery is complete, and plaintiffs filed a note of issue and certificate of readiness on May 17, 2004.

To succeed on the instant motions, Movants and Cross Movants must sustain the initial burden of showing that each plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d) (Gaddy v Eyler, 79 NY2d 955 [1992]; see also Ocasio v Henry, [*2]276 AD2d 611 [2000]). In support of their motion, Movants submit a copy of plaintiffs' verified bill of particulars, an affirmation and report of an independent orthopedic examination of each plaintiff conducted by Dr. Armand J. Prisco at Movants' request, and an affirmation and report of an independent neurologic examination of each plaintiff conducted by Dr. Kuldip Sachdev, also at Movants' request. Cross Movants adopt Movants' arguments and submissions.

In their bill of particulars, plaintiffs allege that, as a result of the accident: (1) Marianna Uruchima suffered a "L5-S1 nerve root dysfunction" and traumatic synovitis of her left knee; (2) Martha Mizhquri suffered vertebral derangement with associated restrictions of motion of her cervical and lumbar spinal regions; and (3) Sammy Mizhquri suffered a "subluxation complex" with associated restriction of motion of his cervical spinal region.

Dr. Prisco reviewed the imaging records of each plaintiff and examined each plaintiff on April 28, 2004. He tested the range of motion of the neck and back of each plaintiff and found entirely normal results. He further tested the reflexes, circulation and arterial pulsation of each plaintiff and again found normal results. He also noted the absence of any indicia of tenderness, spasm or muscle atrophy in each plaintiff. Lastly, he tested the range of motion of Marianna Uruchima's left knee and found no objective evidence of damage.

Based on these tests, Dr. Prisco diagnosed Marianna Uruchima with resolved sprains of the lumbar and cervical spinal regions as well as resolved traumatic synovitis of her left knee. He also diagnosed Marta Mizhquri and Sammy Robles with resolved sprains of the lumbar and cervical spinal regions. He concluded that no plaintiff had a permanent orthopedic disability and that no further treatment was necessary as the result of the accident. Lastly, he opined that each plaintiff is capable of carrying out his or her customary daily activities.

Dr. Sachdev reviewed the imaging records of each plaintiff and examined each plaintiff on April 28, 2004. He administered tactile, spasm, sensation and range of motion tests on each plaintiff. He found no evidence of spasm, muscular atrophy or deformity. He also found that each plaintiff's appearance, range of motion, muscle strength, coordination and reflexes were entirely normal.

Dr. Sachdev diagnosed Marianna Uruchima with a resolved sprain of her cervical, thoracic and lumbar spinal regions. He diagnosed Marta Mizhquri with a contusion of the nose and a resolved sprain of the cervical, thoracic and lumbar spinal regions. He did not render a diagnosis for Sammy Robles.

Dr. Sachdev noted the absence in each plaintiff of any objective evidence of a neurologic disability. He concluded that no plaintiff needs further treatment or has suffered a permanent injury resulting from the accident.

Thus, by submitting the affirmations and reports of Dr. Prisco and Dr. Sachdev, Movants and Cross Movants have met their initial burden of establishing the lack of credible objective evidence to support plaintiffs' claims of each having sustained a "serious injury" [*3]and have thereby shifted the burden to plaintiffs to come forward with evidence sufficient to raise a triable issue of fact with respect thereto (Lopez v Senatore, 65 NY2d 1017 [1985]; Licari v Elliot, 57 NY2d 203 [1982]).

In opposition, plaintiffs tender various medical reports and the affidavit of Dr. Melinda Keller, a chiropractor. Dr. Keller reviewed the prior medical records of each plaintiff and examined each plaintiff on July 21, 2004. In her affidavit, she opines that the MRI of Marianna Uruchima's spine demonstrates abnormal curvature. She administered tactile tests and found spasms in each plaintiff. She performed range of motion tests on each plaintiff and found that, on average, each plaintiff's range of motion was impaired by 35-40 percent. She opines that the losses of ranges of motion will result in arthritic deposits, causing greater losses in the future.

Dr. Keller's overall impression is that each plaintiff suffered severe trauma to his or her spine. She then opines that the losses of ranges of motion are permanent and thus will impair the customary and daily activities of each plaintiff.

The court finds that plaintiffs have demonstrated the existence of an issue of fact with respect to whether each has suffered a "serious injury" for the purposes of Insurance Law § 5102 (d). The chiropractor's affidavit was based on a recent medical examination and noted decreases in ranges of motion and positive objective test results for each plaintiff's neck and back. The chiropractor's opinion was based on objective evidence, including, inter alia, plaintiffs' imaging reports. Lastly, the chiropractor opined both that the injuries to each plaintiff were permanent and causally related to the subject accident. These factors are sufficient to raise a triable issue of fact (Balanta v Stanlaine Taxi Corp., 307 AD2d 1017, 1018 [2003]; see also Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345 [2002]). Moreover, the court notes that the chiropractor's affidavit is in proper form (see e.g. Sanchez v Romano, 292 AD2d 202, 203 [2002]; CPLR 2106).

"Whether a limitation of use or function is significant or consequential...relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel v Green, 84 NY2d 795, 798 [1995] [internal quotations omitted]). Here, Dr. Keller performed objective tests and found that each plaintiff's motions are restricted by a specific amount. While a plaintiff's pain from "soft tissue" neck and back injuries alone is insufficient to constitute a serious injury (see e.g. Pierre v Nanton, 279 AD2d 621 [2001]; Guzman v Paul Michael Mgt., 266 AD2d 508, 509 [1999]), in this case, Dr. Keller's conclusions are "supported by objective medical evidence" (Toure, 98 NY2d at 353 [2002]). Considered in the light most favorable to plaintiffs (id.), the court determines that their injuries are not "minor, mild or slight" (Licari, 57 NY2d at 236) so as to preclude a finding of a "serious injury." Accordingly, the motion and cross motion are denied.

This constitutes the decision and order of the court.

E N T E R, [*4]

J. S. C. Footnotes

Footnote 1: Movants and Cross Movants are not seeking summary judgment dismissing the causes of action asserted by Charles Mizhquri, who, according to plaintiffs' verified bill of particulars, suffered a fracture of the nasal bone. All further references to plaintiffs exclude Charles Mizhquri.

Footnote 2: Insurance Law § 5102(d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of 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."