Tetteh v Vault Trust

[*1] Tetteh v Vault Trust 2005 NY Slip Op 51447(U) [9 Misc 3d 1108(A)] Decided on July 7, 2005 Supreme Court, Bronx County Salerno, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2005
Supreme Court, Bronx County

BENJAMIN TETTEH, Plaintiff,

against

VAULT TRUST and ANTHONY L. RAKOCZY, Defendants.



21097/03



Plaintiffs Attorney

Robert A. Hyams, Esq.

475 Fifth Avenue

New York, New York 10017

212-267-7947

Defendant Vault Trust

McCabe, Collins, McGough & Fowler

114 Old Country Road

Mineola, L.I. N,Y, 11501

516-741-6266

Defendant - Anthony L. Raboczy

Martin, Fallon & Mulle

100 East Carver Street

Huntington, L.I. NY 11747

631-421-1211

George D. Salerno, J.

Motion by Defendant, ANTHONY L. RAKOCZY, and Cross Motion by Defendant, VAULT TRUST, seeking summary judgment dismissing the Complaint of Plaintiff, BENJAMIN TETTEH, on the basis that Plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d), are denied.

This is an action to recover damages for personal injuries allegedly sustained by Plaintiff in a January 11, 2002 motor vehicle accident at the intersection of 10th Avenue and 36th Street in Manhattan. Plaintiff contends that Defendant RAKOCZY negligently operated Defendant VAULT TRUST's (VAULT) motor vehicle, thereby causing a collision with a Chevrolet Astro driven by Plaintiff.[FN1] Plaintiff asserts that Defendant RAKOCZY, traveling north on 10th Avenue, drove through a red traffic signal, entered the intersection, and struck Plaintiff's automobile on the rear passenger side as Plaintiff traveled from west to east on 36th Street. (See Plaintiff's Deposition, dated May 20, 2004, annexed to Plaintiff's Exhibit "F").

As a result of the accident, Plaintiff claims: a herniated nucleus pulposus C5-C6 deforming the thecal sac and spinal cord diffusely; diffuse posterior bulging discs at C4-C5 and C6-C7 disc space levels deforming the thecal sac and spinal cord diffusely; central posterior bulging C3-C4 disc deforming the thecal sac; hypertrophic changes of the bilateral zygapophyseal joints and joints of Luschka at C5-C6 and to a lesser extent C4-C5 and C6-C7; loss of normal disc height and signal intensity at C5-C6 and C6-C7 disc space levels; straightening of the normal cervical curvature; acute cervical and lumbosacral sprain; and possible bilateral cervical radiculopathy. (See Plaintiff's Verified Bill of Particulars, dated January 30, 2004, annexed to Defendant RAKOCZY's Exhibit "D").

The proponent of a motion for summary judgment carries the initial burden to tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. See Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986). See DeAngelo v. Fidel Corp. Services, Inc., 567 NYS2d 454, 455 (1st Dept. 1991).

Pursuant to Insurance Law §5102(d), "serious injury" includes the following:

a personal injury which results in permanent loss of use of a body organ, member, function, or system; permanent consequential limitation of use of a body organ or member; significant [*2]limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent 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.

Insurance Law § 5102(d) (McKinney 2000).

In support of the Motion to dismiss for failure to meet the serious injury threshold, Defendant RAKOCZY submits the affirmations of Dr. R.C. Krishna, a neurologist, and Dr. Michael J. Katz, an orthopedist. (See Defendant's RAKOCZY 's Exhibits "E" and "F", dated September 13, 2004 and August 10, 2004, respectively).

Dr. Krishna concedes that Plaintiff "had sustained a cervical and lumbar strain injury" and "was experiencing some neck and back pain." (See Dr. Krishna's Affirmation, dated September 13, 2004, annexed to Defendant RAKOCZY's Exhibit "E"). Yet, he ultimately concludes Plaintiff is not disabled.

Dr. Krishna sets forth quantitative range of motion assessments and percentages for Plaintiff's cervical and lumbar spines; but, he fails to define "normal" ranges of motion. Although he makes a conclusory statement that "claimant's examination is normal," he does not specifically state how he deemed Plaintiff's range of motion to be normal. (See Dr. Krishna's Affirmation annexed to Defendant RAKOCZY's Exhibit "E"). Moreover, when compared to Dr. Henry Hall's "normal" range of motion standards,[FN2] Dr. Krishna's findings reveal limitations in Plaintiff's range of motion.

In addition, Dr. Krishna did not examine any of Plaintiff's medical records such as the MRI report or NCV study results.[FN3] This disregard of objective evidence parallels defendants' doctor's failure to address MRI results in Dioguardi v. Weiner.[FN4] In Dioguardi, the Court determined the defendants were not entitled to judgment as a matter of law on the issue of the plaintiff's serious injury due, in part, to the defendants' doctor's affirmation, which did not confirm whether he had examined the plaintiff's MRIs.

To prove Plaintiff did not suffer serious injury, Defendants must submit "the affidavits or affirmations of medical experts who examined [Plaintiff] and conclude that no objective medical findings support [his] claim." Grossman v. Wright, 268 AD2d 79, 84 (2nd Dept. 2000)[emphasis added]. Because Dr. Krishna reviewed neither Plaintiff's MRI nor NCV study and did not offer an objective basis of comparison for Plaintiff's range of motion, his report does not satisfy Defendants' initial burden. Absent objective evidence supporting his claims, Dr. Krishna's assertions more closely resemble "[t]he mere parroting of language tailored to meet the statutory requirements" for Defendants to prevail on a summary judgment motion. Id. at 84.

After acknowledging that Plaintiff had suffered a cervical and lumbosacral sprain, and Plaintiff's complaints of "[p]ain in the neck occasionally," Dr. Katz notes that Plaintiff's "below [*3][the] knee amputation [of the leg]" was unrelated. (See Dr. Katz's Affirmation annexed to Defendant RAKOCZY's Exhibit "F"). Like Dr. Krishna, though, Dr. Katz neither reviews Plaintiff's MRI nor explains whether Plaintiff's range of motion deviated from the normal. Dr. Katz's assertions are undermined by a lack of evidentiary support similar to that weakening Dr. Krishna's findings, again raising the question of whether Defendants established a prima facie case for summary judgment.

Once the moving party satisfies its initial burden, it shifts to the opponent, who must produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. In this case, even if Defendants' submissions were sufficient to meet their "initial burden to establish a prima facie case that Plaintiff's alleged injuries did not meet the serious injury threshold under the No-Fault Law," the Plaintiff herein has raised triable issues of fact with respect thereto. Toure v. Avis, 98 NY2d 345, 352 (2002).

Plaintiff opposes Defendants' Motion and Cross Motion by submitting: an MRI report, dated January 24, 2002, sworn to by Dr. Robert Scott Schepp, a neuroradiologist; the January 26, 2005 affidavit of Dr. Henry Hall, Plaintiff's treating chiropractor, along with a chiropractic treatment record, dated January 12, 2005, chronicling the frequency and nature of Plaintiff's visits.

In his January 11, 2005 affirmation, Dr. Schepp attests to supervising Plaintiff's cervical spine MRI on January 23, 2002 and refers to the diagnosis, reiterating that the MRI shows:

[A] herniated nucleus pulposus at C5-C6 deforming the thecal sac and spinal cord diffusely. The C4-C5 and C6-C7 disc space levels demonstrate diffuse posterior bulging discs deforming the thecal sac and spinal cord diffusely. Central posterior bulging at C3-C4 is identified deforming the thecal sac without compressing or deforming the spinal cord. Hypertrophic changes of the bilateral zygapophyseal joints and joints of Luschka at C5-C6 and to a lesser extent C4-C5 and C6-C7 is identified Loss of normal disc signal intensity and height is identified from all visualized intervertebral disc space levels most marked at the C5-C6 and C6-C7 disc levels. I also note that the straightening of the normal cervical curvature is consistent with muscle spasm.

(See Dr. Schepp's Affirmation, dated January 11, 2005, annexed to Plaintiff's Exhibit "C")[emphasis added].

As he derives his diagnosis from an MRI, Dr. Schepp's medical conclusions concerning Plaintiff's January 23, 2002 condition are clearly supported by data that "constitute [purely] objective evidence providing an ample medical foundation in support of [Plaintiff's] subjective complaints of pain and thus raise a triable issue of fact." Lesser v. Smart Cab Corp., 283 AD2d 273, 274 (1st Dept. 2001)[emphasis added].

The Affidavit of Dr. Henry Hall, Plaintiff's treating chiropractor, is especially useful in showing the triable issues of fact, because it is extraordinarily detailed, and it juxtaposes his January 11, 2002 findings (determined soon after the accident) with his impressions upon re-examination on December 15, 2004 (almost two years after the accident).

Dr. Hall reports Plaintiff complained of neck pain and stiffness and back pain during his January 11, 2002 visit, shortly after the accident. Dr. Hall examined Plaintiff, evaluating his ranges of motion as follows: [*4]

Range of motion was assessed through evaluation using a goniometer. The range is determined by actively moving the affected area by hand to its end range. The end range is measured objectively via detection of myospasm in the specific plane. It should be noted that subjective patient pain is not a determining factor when measuring specific planar motion.

(See Dr. Hall's Affidavit, dated January 26, 2005, annexed to Plaintiff's Exhibit "A")[emphasis added].

Dr. Hall sets forth his January 11, 2002 quantitative results as follows:

Table 1. Cervical Spine Exam Findings(01/02) Table 2. Lumbar Spine Exam Findings (01/02)

Range of MotionNormalTestRange of MotionNormalTest

Flexion 6030 painFlexion 9040 pain

Extension 5020 painExtension 3010 pain

Left Rotation 8040 painLeft Rotation 3015 pain

Right Rotation 8035 painRight Rotation 3010 pain

Left Lateral Flexion 4020 painLeft Lateral Flexion 20 5 pain

Right Lateral Flexion 4010 painRight Lateral Flexion 20 5 pain

Table 3. Orthopedic and Neurological Testing (01/02)

After performing the above tests and examining the cervical spine MRI report, Dr. Hall rendered his January 11, 2002 diagnosis, stating:

[A] culcified diffused herniated nucleus pulposus C5/C6 deforming the thecal sac and spinal cord diffusely; [the] C4/C5 and C6/C7 disc space levels demonstrate diffuse posterior bulging discs deforming the thecal sac and spinal cord diffusely; [a] central posterior bulging disc C3/C4 deforming the thecal sac; hypertrophic changes of the bilateral zygapophyseal joints and joints of Luschka at C5/C6 ; loss of normal disc signal intensity and height identified from all visualized intervertebral disc space levels most marked at the C5/C6 disc space levels; straightening of the normal cervical curvature ; Cervicalgia; Cervicocranial Syndrome; and Low Back Syndrome.

(See Dr. Hall's Affidavit annexed to Plaintiff's Exhibit "A")[emphasis added].

Upon re-examination on December 15, 2004, nearly two years after the accident and Plaintiff's initial visit, Dr. Hall observes Plaintiff continues to endure "difficulty with excessive standing/walking bending in rising to walk after sitting with excessive/moderate repeated lifting [and] with excessive/moderate repeated twisting and turning." (See Dr. Hall's Affidavit annexed to Plaintiff's Exhibit "A"). Dr. Hall again performed the objective range of motion tests, deriving similar results as follows:

Table 4. Cervical Spine Exam Findings (12/04) Table 5. Lumbar Spine Exam Findings (12/04)

Range of Motion Normal Test Range of Motion Normal Test Flexion 60 35 pain Flexion 90 50 pain Extension 50 30 pain Extension 30 15 pain Left Rotation 80 45 pain Left Rotation 30 20 pain [*5]Right Rotation 80 40 pain Right Rotation 30 10 pain Left Lateral Flexion 40 20 pain Left Lateral Flexion 20 10 pain Right Lateral Flexion 40 25 pain Right Lateral Flexion 20 10 pain

Table 6. Orthopedic and Neurological Testing (12/04)

Positive Achilles, 1 right Positive Maximum for Compression Positive Cervical Distraction Positive Kemp's Positive Lesagues, 30 degrees right Positive Soto Hall, C4/C5 Positive Linders/Valsalvas/Bach Positive Shoulder Depression, Bilateral Sensory Nerve Deficit Noted on Pinwheel Testing at C4/C5, right and L5/S1, left

Though Plaintiff's December 2004 test results suggest an improved range of motion, Plaintiff still exhibits a noticeable deficiency compared to the data associated with a normal range of motion. Offering his prognosis for Plaintiff, Dr. Hall concludes his report by providing:

The patient, as a direct result of the accident on 01/11/02, sustained permanent injuries to his spine, muscular, and neurological systems [W]hen last seen at our office on December 15, 2004, we found the patient to be still suffering from the residual effects of the injuries suffered on the accident of 01/1/02. It is clear that this patient has sustained a significant trauma to the cervical and his lumbar spine and it is felt that this patient has a significant restriction of range of motion and thus a significant limitation of the use of a body organ, function or system. The patient can expect to experience frequent bouts of pain in the future In my professional opinion, the injuries are causally related to the accident.

(See Dr. Hall's Affidavit annexed to Plaintiff's Exhibit "A")[emphasis added].

It is well-established that "to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury. ... An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose, and use of the affected body organ, member, function or system." Toure v. Avis, 98 NY2d 345, 350 (2002).

Dr. Hall successfully opposes Defendants' motions for summary judgment, because Dr. Hall "submit[s] quantitative objective findings in addition to an opinion as to the significance of the injury." Id. at 84. Consistent with the standard expressed in Arjona v. Calcano,[FN5] Dr. Hall [*6]provides objective evidence of the magnitude and duration of Plaintiff's injury by comparing his diagnosis contemporaneous with the accident with a subsequent diagnosis upon re-examination.

Dr. Hall not only provides quantitative proof of Plaintiff's limitations, but also furnishes a qualitative description of the injury's effects on Plaintiff's daily routine, providing:

Due to the injuries sustained in the motor vehicle accident the patient cannot perform various activities involving his social life and ordinary tasks such as house lifting, bending, cleaning, laundry, and exercising. It is also my understanding that the patient's work hours were limited since the accident and has limited to this day which is an expected consequence of the injuries he sustained.

(See Dr. Hall's Affidavit annexed to Plaintiff's Exhibit "A").

This evidence suggests an injury clearly more significant that some "minor, mild or slight limitation of use insufficient to constitute a serious injury within the definition of the No-Fault statute." Arjona v. Calcano, 7 AD3d 279, 280 (1st Dept. 2004).

Like the medical experts in both Vargas v. New York City Transit Authority [FN6] and Noble v. Ackerman,[FN7] Dr. Hall submits "objective medical findings, [which] in conjunction with [the] opinion that the injuries were caused by the accident, and that the limitations [are] significant and permanent, are sufficient to make out a prima facie case that [P]laintiff suffered serious injury." Vargas v. New York City Transit Authority, 254 AD2d 175, 176 (1st Dept. 1998). Also, unlike the plaintiff's chiropractor in Kupka v. Emmerich,[FN8] Dr. Hall acknowledges Plaintiff's prior injuries sustained in 1994 and 1998 accidents, discounts any connection between those accidents and Plaintiff's current injuries, and attributes his current injuries to the 2002 accident. ("In my professional opinion, the injuries sustained are causally related to the [2002] accident.")

Finally, Dr. Hall's appointment record shows Plaintiff consistently visited him from January 2002 to August 2003. Dr. Hall explains that Plaintiff underwent a "comprehensive program consisting of intermittent traction and chiropractic manipulation. Ultrasound and electrical stimulation with massager and deep tissue work were used as needed." (See Dr. Hall's Affidavit annexed to Plaintiff's Exhibit "A"). Dr. Hall also adequately explains any gap in treatment, stating that "[t]he patient's treatment concluded as his injuries were determined to be permanent and further regular treatment would not be beneficial other than [for] temporary relief." (See Dr. Hall's Affidavit annexed to Plaintiff's Exhibit "A")[emphasis added]. In this regard, the Court of Appeals recently held that, where a plaintiff's doctor stated that any further medical treatment would be "only [*7]palliative in nature, ... plaintiff's cessation of treatment was explained sufficiently to raise an issue of fact and survive summary judgment." Pommells v. Perez, No. 126 SSM 5, 2005 NY LEXIS 1041, at *16 (Court of Appeals, April 28, 2005).

Because the burden always remains with the proponent of the issue, for Defendants to prevail, their submissions must outweigh Plaintiff's evidence as to the presence of serious injury. Even "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994); 300 East 34th Street v. Habeeb, 248 AD2d 50, 56 (1st Dept. 1997).

The role of the court is to determine if bona fide issues of fact exist, not to resolve issues of credibility. The court's function in determining a motion for summary judgment is issue finding rather than issue determination. See Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. See Stone v. Goodson, 8 NY2d 8, 12 (1960); Sillman v. Twentieth Century-Fox Film Corp., supra .

Under all of the circumstances, there are triable issues of fact as to whether Plaintiff sustained a "serious injury" within the meaning of Insurance Law.

Accordingly, Defendants' Motion and Cross Motion are denied. This constitutes the decision and order of this court.

Dated July 7, 2005-

George D. Salerno, J.S.C. Footnotes

Footnote 1: Plaintiff's cousin owned the Chevrolet Astro bearing the license plate number KFA3OV NEWYORK.

Footnote 2: Dr. Henry Hall, Plaintiff's chiropractor, provides an objective, numerical standard to which he compares Plaintiff's cervical and lumbar ranges of motion.

Footnote 3: In preparing his report, Dr. Krishna reviewed only Plaintiff's Verified Bill of Particulars.

Footnote 4: Dioguardi v. Weiner, 288 AD2d 253, 254 (2nd Dept. 2001).

Footnote 5: Arjona v. Calcano, 7 AD3d 279 (1st Dept. 2004) (where the court maintained "a plaintiff must offer some objective evidence of the extent or degree of his alleged physical limitations and their duration").

Footnote 6: 254 AD2d 175, 176 (1st Dept. 1998) (where the plaintiff's chiropractor, Dr. Lizzio, submitted an affidavit and medical narrative report, detailing his "treatment, testing, medical opinion, and prognosis concerning the plaintiff's injuries").

Footnote 7: 252 AD2d 392, 394 (1st Dept. 1998) (where the plaintiff's physician, Dr. Waltz, "provided evidence of injuries to [the] plaintiff's cervical spine and disc, resulting in chronic pain and decreased range of motion. It was [further] asserted that the injuries were caused by the accident and were permanent in nature.").

Footnote 8: 2 AD3d 595 (2nd Dept. 2003).