Clark v Baldinucci

[*1] Clark v Baldinucci 2005 NY Slip Op 51778(U) [9 Misc 3d 1124(A)] Decided on August 2, 2005 Supreme Court, Suffolk County Pitts, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2005
Supreme Court, Suffolk County

Catherine M. Clark and JOHN CLARK, Plaintiffs, -and

against

Ciro R. Baldinucci, Defendant.



4533/2003



Edward J. Cohen, Esq., Atty for the Plaintiffs

90 East Main Street, Bay Shore NY 11706

Joseph G. Gallo, Esq., Atty for the Defendant

P. O. Box 9347, Uniondale NY 11553

Arthur G. Pitts, J.

ORDERED that defendant Ciro R. Baldinucci's motion for summary judgment is granted under the circumstances presented herein. ( CPLR 3212; Insurance Law 5102 (d))

This action arose out of a motor vehicle accident that occurred on January 7, 2002 on the Northern State Parkway at or near its intersection with Route 110, Huntington, Suffolk County, New York in which plaintiff Catherine M. Clark allegedly sustained a serious personal injury. Plaintiff John Clark, Catherine M. Clark's spouse, has brought a derivative action. As a basis of [*2]the instant motion, the defendant asserts that the plaintiff has not sustained such serious injury as defined by Insurance Law 5102 (d).

Clark v Baldinucci Index No. 4533/03 Page 2

Said section provides in part that "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 and eighty days immediately following the occurrence of the injury or impairment." ( Insurance Law 5102 (d) ) In the context of the plaintiff's claims, the term "consequential" means important or significant ( Kordana v. Pomellito, 121 AD2d 783, 503 N.Y.S.2d 198 , 200 [ 3rd Dept. 1986] , App. Dis. 68 NY2d 848, 508 N.Y.S.2d 425) The term, "significant" as it appears in the statute has been defined as "something more than a minor limitation of use" and the term "substantially all" has been construed to mean "that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment"

( Licari v. Elliott, 57 NY2d 230, 455 N.Y.S.2d 570 [1982] )

On a motion for summary judgment to dismiss the complaint for failure to set forth a prima facie case of serious injury as defined by Insurance Law 5102 (d), the initial burden is on the defendant "to present evidence, in competent form, showing that the plaintiff has no cause of action" ( Rodriguez v. Goldstein, 182 AD2d 396, 582 N.Y.S.2d 395, 396 [ 1st Dept. 1992] ) . Once the defendant has met the burden, the plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. ( DeAngelo v. Fidel Corp. Services, Inc., 171 AD2d 588, 567 N.Y.S.2d 454, 455 [ 1st Dept. 1991] ). Such proof in order to be in a competent or admissible form, shall consist of affidavits or affirmations ( Pagano v. Kingsbury, 182 AD2d 268, 587 N.Y.S.2d 692

[2nd Dept. 1992] ). The proof must be viewed in a light most favorable to the non-moving party. ( Cammarere v. Villanova, 166 AD2d 760, 562 N.Y.S.2d 808, 810 [ 3rd Dept. 1990] ).

The plaintiff has alleged by way of her bill of particulars that she has sustained the following injuries: Herniated disc at L5-S1; disc bulge at L4-5; lumbosacral spine sprain; bulging disc C4-5 and C5-6; cervical spine sprain; right carpal tunnel syndrome; right shoulder sprain; supraspinatus tendonosis/tendonopathy, right shoulder; right hand contusion.

The defendant in support of the instant motion has submitted the affirmed reports of Richard A. Pearl, M.D., a neurologist and Joseph P. Stubel, M.D., an orthopedist and Melissa Sapan Cohen, M.D., a radiologist. Dr. Pearl conducted an examination of the

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plaintiff on May 7, 2004 and also had an opportunity to review relevant medical records. After such examination and review he diagnosed the plaintiff with having sustained "a cervical and lumbosacral sprain." He further concluded that "there are no objective findings to indicate neurological injury, need for neurological healthcare, testing or neurological disability..... the claimant did have preexisting degenerative condition of the spine as documented on image studies." Dr. Stubel also examined the plaintiff on May 7, 2004 as well as reviewed relevant medical records and stated in his affirmed report that "it is my opinion that the accident reported on 1/7/02 has a causal relationship to the symptoms described. Based on the findings at the time of this examination, I find the claimant to exhibit no objective signs of disability with reference to the above stated accident and injuries. I feel no further orthopedic treatment or physical therapy treatment is required. I feel there is no need for surgery. She can perform her usual activities of daily living and her usual work." Dr. Cohen after reviewing MRIs performed on the plaintiff on March 16, 2002 concluded that as to the cervical spine the plaintiff "has very minimal degenerative changes at the C4-C5 and C5-C6 levels. There is no evidence of trauma related injury on the submitted cervical spine MRI." As to the lumbosacral spine MRI, Dr. Cohen found the that the plaintiff "has mild degenerative changes at L4-L5 and L5-S1. There is no evidence of trauma related injury on the submitted lumbosacral spine MRI." With regard to the right shoulder MRI, she found that the plaintiff "has degenerative changes of the acromioclavicular joint with resultant disease of the supraspinatus tendon. There is no evidence of trauma-related injury to the submitted right shoulder MRI." As to the plaintiff's allegation of having sustained carpal tunnel syndrome as a result of the subject accident, the defendant has proffered a report from the Hand Surgery Associated of Long Island dated March 18, 1997 which indicates that she sought treatment of said injury substantially prior thereto. Accordingly, based upon the foregoing, the movant has demonstrated, as a matter of law that the plaintiff has not sustained a serious injury. ( see Reeves v. Scopaz, 227 AD2d 606, 643 N.Y.S.2d 620 [2nd Dept. 1996] ; Horan v. Mirando, 221 AD2d 506, 633 N.Y.S.2d 402 [ 2nd Dept. 1995] )

In opposition thereto, the plaintiff has submitted the report dated April 4, 2005 and affirmed on April 19, 2005 of Mitchell Ehrlich, M.D., her treating physician. It is well settled that "to successfully oppose a motion for summary judgment, the plaintiff 'must set forth competent medical evidence based upon objective medical findings and diagnostic tests to support [their] claim * * * ' of a serious injury (Tankersley v. Szesnat, 235 AD2d 1010, 1012, 653 N.Y.S.2d 184, quoting Eisen v. Walter & Samuels, 215 AD2d 149, 150, 626 N.Y.S.2d 109)." ( Trotter v. Hart, 285 AD2d 772, 728 N.Y.S.2d 561, 562 [3rd Dept 2001] ) However, Dr. Ehrlich's report indicates that the plaintiff first

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sought treatment on January 8, 2002 which continued until April 25, 2002. Thereafter, Dr. [*4]Ehrlich did not treat or examine the plaintiff until February 28, 2005 and his diagnosis of the plaintiff's injuries are a result of an examination which occurred on March 30, 2005. His affirmed report fails to address the almost three year gap in treatment. It has consistently been held that failure to explain an extended gap between the termination of the plaintiff's initial treatment and his present course of treatment, renders the medical proof insufficient to establish a serious injury. ( Uber v. Heffron, 286 AD2d 729, 730 N.Y.S.2d 174 [2nd Dept. 2001] ; Medina v. Zalman Reis, 239 AD2d 394, 658 N.Y.S.2d 37 [2nd Dept. 1997] )

Accordingly, based on the foregoing and the circumstances presented herein, the plaintiff has failed to raise an issue of fact as to whether she has sustained a serious injury as set forth in Insurance Law 5102 (d), and as such, the defendant's motion for summary judgment is granted.

Submit judgment.

J.S.C.

Clerk's Use Only: Final Disposition