Fonrose v Winter
Annotate this CaseDecided on May 4, 2005
Civil Court, Kings County
Kervens Fonrose, Plaintiff(s)/Petitioner(s),
against
Sherron Winter, Defendant(s)/Respondent(s).
42886-2003
Milagros A. Matos, J.
Defendant Sherron Winter moves, pursuant to CPLR §3212, for an order granting summary judgment on the ground that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law §5102(d). [*2]
On a motion for summary judgment for the failure to sustain a "serious injury" within the meaning of Insurance Law §5102(d), the movant must make a prima facie showing that the injured plaintiff did not sustain a serious injury within the meaning of the statute. Once this is established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained. (see Grossman v. Wright, 268 AD2d 79, 84 [App Div, 2d Dept. 2000]; Gaddy v. Eyler, 79 NY2d 955 [1992]).
This personal injury action arises out of a motor vehicle accident that occurred on March 3, 2002, at Ithaca Avenue and Linden Blvd., Brooklyn, NY. The accident occurred when defendant attempted to exit a parking space and struck plaintiff's vehicle. Plaintiff was treated in the emergency room of Brookdale Hospital Medical Center for complaints of pain in the right wrist. Plaintiff was diagnosed with a right wrist strain and discharged the same day. On 3/26/02, the plaintiff was seen at Cross Bay Medical, P.C., complaining of neck pain, lower back pain and shoulder pain. He was seen by several different specialists at this medical center and referred for therapy treatment three (3) times per week. The physical therapy consisted of acupuncture, deep heat massage, hydrocollator for the spine, TENS unit, ultrasound therapeutic massage and range of motion exercises for a period of four (4) months.
In his Verified Bill of Particulars, plaintiff alleged the following injuries:
a) Significant limitation of use and/or permanent consequential loss of use and/or permanent loss of use of cervical and lumbar spines
b) C5-6 radiculopathy;
c) Lumbosacral spine strain;
d) L4-5 disc herniation with ventral impingement on thecal sac;
e) Positive cervical Jackson's compression test bilaterally;
f) Positive lumbar FabERE-Patrick test bilaterally;
g) Posttraumatic cervical spine syndrome;
h) Posttraumatic lumbar sprain syndrome;
i) Posttraumatic cervical radiculopathy with compression of nerve root;
j) Posttraumatic lumbosacral radiculopathy with compression of nerve root
k) Disc herniation at L4-5 with ventral impingement on thecal sac
l) C5-6 disc thinning and disc bulging with ventral impingement on thecal sac
m) straightening of cervical lordotic curve.
In support of his motion, defendant submits the affirmed medical reports of Dr. Carl Weiss, an orthopedist, Dr. Edward Weiland, a neurologist, and Dr. Richard Heider, a radiologist. Dr. Weiss conducted a physical examination of the plaintiff on March 30, 2004, and reviewed the record for the Brookdale Hospital emergency room. He concluded that plaintiff "suffered a sprain of the right wrist from which he has recovered completely" and that "there is no permanency." Dr. Weiland conducted a neurologic consultation on March 31, 2004, and reviewed the emergency room record from Brookdale Hospital. He concluded, "I can find no evidence of any lateralizing neurological deficits at the present time," and "I find for no primary [*3]neurologic disability at the present time as it relates to the injuries reportedly occurring on 3/3/02." Dr. Heider reviewed an MRI of the lumbar spine performed on 4/3/02. It was his impression that the MRI revealed a "central L4-5 disc herniation" and that "the findings represent the earliest stages of degeneration disease and was present at the time of the accident only one month earlier."
Based on the evidence, defendant has met his initial burden to establish a prima facie case that plaintiff's alleged injuries did not meet the serious injury threshold within the meaning of Insurance Law §5102(d). (see Toure v. Avis Rent A Car, 98 NY2d 345, 774 NE2d 1197, 746 NYS 865 [2002]; Gaddy v. Eyler, 79 NY2d 955 [1992]).
In support of his position that a triable issue of fact exists, plaintiff submits his personal affidavit, dated March 8, 2005 and an affidavit from Dr. Fred Schmidt, D.C., dated March 18, 2005. In his affidavit, plaintiff avers that he still has lower back pain from this accident. He quantifies the lower back pain as "7 on a scale of 1 to 10". He claims the lower back pain is brought on by standing or sitting for long periods of time and that each onset of pain lasts about fifteen (15) to twenty (20) minutes.
On December 29, 2004, Dr. Fred Schmidt conducted an evaluation of the plaintiff, who reported complaints of occasional soreness in the lower back and difficulty standing or sitting for extended time periods. Dr. Schmidt further conducted cervical and lumbar range of motion studies by using a goniometer. The doctor found an 11% restriction in flexion (reporting that plaintiff had 80 degrees of flexion where the normal amount is 90 degrees) in the Thoraco-lumbar range of motion. Based on his examination, Dr. Schmidt concluded that the plaintiff suffered a "permanent range of motion restriction lumbar spine and mild residual strain of lower lumbar spine L5-S1" as a result of the motor vehicle accident of March 3, 2002. He further concluded that "the patient's prognosis is very favorable for full recovery with some follow up stretching and strengthening."
The plaintiff has failed to present objective medical proof of a serious injury causally related to the accident. (Licari v. Elliot, 57 NY2d 230 [1982]). Further, any significant lapse of time between the conclusion of the medical treatments of the plaintiff after the accident and the physical examination conducted by the plaintiff's expert had to be adequately explained. (see Smith v. Askew, 264 AD2d 834 [App Div, 2d Dept. 1999]; Batista v. Olivo, 2005 NY Slip Op 02984 [App Div, 2d Dept]). Neither the plaintiff nor his chiropractor offer an explanation for the two and a half year gap between the initial course in treatment after the accident, which lasted about four months, and the most recent examination.
In the recent case of Pomells v. Perez, the Court of Appeals found that a gap in treatment wherein plaintiff ended physical therapy six months after the accident and sought no other treatment until years later in connection with the case was "in reality, a cessation of all treatment." (Pomells v. Perez, 2005 NY Slip Op 03277 [2005], citing Franchini v. Palmieri, 1 NY3d 539 [2003]). Thus, where plaintiff failed to provide an explanation for his failure to [*4]continue medical treatment as in this case, plaintiff has not met his burden of showing a serious injury.
Further, the evidence fails to establish that plaintiff sustained a total loss of use of a body organ, member function or system to be compensable under the "permanent loss of use" exception to the no-fault remedy. (see Oberly v. Bangs Ambulance, 96 NY2d 295 [2001]). Finally, the plaintiff did not satisfy the 90/180 category of the statute since there was no proof that plaintiff was unable to perform his usual and customary activities after the accident. (see Licari v. Elliot, 57 NY2d 230 [1982]; Gaddy v. Eyler, 79 NY2d 955 [1992]).
Accordingly, the defendant is entitled to summary judgment dismissing the complaint. This is the Decision and Order of this Court.
Dated:May 4, 2005
MILAGROS A. MATOS
Judge, Civil Court
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