Giraldo v Shemelyak

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[*1] Giraldo v Shemelyak 2005 NY Slip Op 50710(U) Decided on March 17, 2005 Supreme Court, Kings County Jacobson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2005
Supreme Court, Kings County

Lenore Giraldo and Georgia Delquaglio, Plaintiffs

against

Sopya Shemelyak and Kuldip S. Parihar, Defendant(s)



607/03

Laura Jacobson, J.

Defendants moved for an order granting summary judgment and dismissing the complaint on the ground that plaintiff Lenore Giraldo has not sustained serious injury within the meaning of Insurance Law §5102(d). Plaintiffs cross moved for an order granting summary judgment on the issue of liability. This action stems from a two car collision which occurred on July 21, 2000. Plaintiff Lenore Giraldo claimed damages for personal injuries and plaintiff Georgia Delquaglio interposed a claim for property damage.

In her bill of particulars, plaintiff alleges that the injuries she sustained included the following: compressing the thecal sac and spinal cord; scoliosis convex to the right; loss of signal at C5-C6; spinal stenosis; muscular spasm; chronic post-traumatic cevical myofascitis with bilateral radiculopathy; cervical spine facet capsulitis at the C7-C6-C5 vertebral levels; posterior bulging intevertebral disc at L5-S1; narrowing at L5-S1; straightening of the lordosis with muscle spasm; [*2]scoliosis convex to the left; facet capulitis at L5; post-traumatic bilateral shoulder arthropathy; chronic post-traumatic cephalgia. In her supplemental bill of particulars, plaintiff's alleges that her injuries include the following: cervical flexion and extension 50% deficit; cervical rotation 50% deficit; forward flex 33% deficit; straight leg raising 33%; squat 50% deficit. Plaintiff also stated that she was out of work for three months.

On behalf of the defendant, plaintiff was examined by orthopedist Dr. Martin Wolpin, and in his report dated June 23, 2004, he concluded that there was no evidence of objective orthopedic pathology. Dr. Wolpin stated that the examination of plaintiff's neck revealed a normal lordotic curve. He stated that plaintiff could extend the neck to neutral and flex the neck to 20 degrees. Lateral bending of the neck was 10 degrees bilaterally. There was no evidence of palpable spasm in the anterior or posterior aspect of the neck. Dr. Wolpin reported that plaintiff actively restricted forward flexion of her back at 40 degrees. Lateral bending was 20 degrees bilaterally and there was no evidence of palpable spasm.. With regard to her shoulders, forward flexion and abduction was described as 180 degrees bilaterally. Dr. Wolpin reported that plaintiff was able to perform straight leg raising to 90 degrees. He stated that there was no Lasegue's sign. Dr. Wolpin reviewed the MRI studies of plaintiff's cervical and lumbar spine. He stated that the MRI of plaintiff's cervical spine showed hard disc bulges at C2-3 and C3-4 which were due to normal wear and tear. No acute changes were seen. With regard to the MRI of plaintiff's lumbar spine, Dr. Wolpin stated that the study showed evidence of degenerative disc narrowing at L5-S1 with an annular central disc bulge and there was no evidence of an acute traumatic disc herniation. Dr. Wolpin stated that there was no evidence of orthopedic pathology other than plaintiff's voluntary restriction of forward flexion.

Defendants submitted the first pages of two separate reports of plaintiff's treating physician. One is the first of three pages, and the other the first of six. It is not clear if the omission of pages was intentional, but the incomplete reports will not be considered.

Defendant did not submit any other medical reports addressing plaintiff's medical condition and functioning as a result of the accident. Dr. Wolpin stressed the lack of objective evidence of pathology but in his range of motion tests, he stated plaintiff's degree of functioning but failed to state the standards he used to determine normal functioning (see Qu v. Doshna,12 AD3d 578)

Dr. Wolpin's report was completed more than two years after the accident. Plaintiff claims that she was unable to complete her usual and customary activities for 90 of the first 180 days following the accident. In her bill of particulars, she alleges injuries other than those that were the subject of MRI studies conducted shortly after the accident, and defendants failed to address plaintiff's functioning in the 180 day period following the accident ( see Nembhard v Delatorre, 2005 WL 534435). Therefore, defendant has not made a prima facie showing that plaintiff has not sustained serious injury and plaintiff's papers need not be considered (see Jones v. Jacob, 1AD3d 485, 2nd Dept. 2003). Accordingly, defendant's motion is denied.

Defendants oppose plaintiff' motion for summary judgment which is dated November 3, 2004. [*3]The note of issue was filed on April 21, 2004 and plaintiff offers no explanation for the delay in making this motion. There are no facts that were not known before the note of issue was filed. Accordingly, plaintiff's motion is denied for failure to show good cause.(see Miceli v. State Farm, 3 NY3d 725, Brill v. City of New York, 2 NY3d 648, Perry v. Pagano, 267 AD2d 290, Stransky v. Tannenbaum, 262 AD2d 301 ).

This constitutes the decision and order of this court.

`

ENTER:

LAURA JACOBSON, JSC

 

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