Colon v Ofori

[*1] Colon v Ofori 2005 NY Slip Op 52169(U) [10 Misc 3d 1066(A)] Decided on September 23, 2005 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 23, 2005
Supreme Court, Bronx County

Jesus Colon, Plaintiff,

against

Emmanuel K. Ofori, Max Solano, and Sheila Molina, Defendants.



24792/2002



For Plaintiff

Timothy L. Bompart Esq.

97-11 64th Road, Rego Park, NY 11374

For Defendant Ofori

Richard A. Waldron Esq.

Gordon & Silber, P.C.

355 Lexington Avenue, New York, NY 10017

For Defendants Solano and Molina

Mary B. Corrigan Esq.

Picciano & Scahill, P.C.

900 Merchants Concourse, Westbury, NY 11590

Lucy Billings, J.

I. BACKGROUND

Plaintiff sues to recover for injuries sustained May 23, 2002, in a collision in Bronx County between a vehicle owned and operated by defendant Ofori and one owned by defendant Molina and operated by defendant Solano in which plaintiff was a passenger. Defendant Ofori moves, and defendants Solano and Molina cross-move, for summary judgment dismissing the complaint, C.P.L.R. § 3212(b), on the ground that plaintiff has not sustained a "serious injury" entitling him to recover for "non-economic loss." NY Ins. Law §§ 5102(d); 5104(a). Upon oral argument June 21 and July 12, 2005, for the reasons explained below, the court grants both motions only in part and otherwise denies them. C.P.L.R. § 3212(e).

II. APPLICABLE STANDARDS

To obtain summary judgment, defendants must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material factual issues that defendants caused plaintiff to sustain a serious injury. C.P.L.R. § 3212(b); Shaw v. Looking Glass Assoc. LP, 8 AD3d 100, 102 (1st Dep't 2004); Chatah v. Iglesias, 5 AD3d 160 (1st Dep't 2004); Shinn v. Catanzaro, 1 AD3d 195, 197 (1st Dep't 2003). If [*2]defendants satisfy this standard, the burden shifts to plaintiff to rebut defendants' prima facie showing, by producing admissible evidence sufficient to require a trial of material factual issues as to whether he sustained a "serious injury" as defined in Insurance Law § 5102(d). Franchini v. Palmieri, 1 NY3d 536, 537 (2003); Shaw v. Looking Glass Assoc. LP, 8 AD3d at 102; Martin v. Schwartz, 308 AD2d 318, 319 (1st Dep't 2003); Sanchez v. Romano, 292 AD2d 202 (1st Dep't 2002).

III. SERIOUS INJURY

Defendants claim that no objective evidence supports a finding that plaintiff sustained a serious injury. Plaintiff claims that his medical evidence sufficiently raises factual issues regarding serious injury.

A.Defendants' Evidence

Defendant Ofori presents the affirmations of Robert April, M.D., Maria DeJesus, M.D., Michael Katz, M.D., and Lewis Rothman, M.D. Dr. April's examination of plaintiff revealed no neurological abnormalities or restrictions in range of motion in his upper limbs. Dr. DeJesus' neurological examination of plaintiff also revealed no neurological abnormalities. Dr. DeJesus found plaintiff had a full range of motion in his neck and left ankle. Dr. Katz's orthopedic examination of plaintiff revealed a full range of motion in the lumbar spine in flexion, extension, and bending, and a negative straight leg raising test. All these examining physicians conclude that plaintiff's injuries are not permanent. Although Dr. Katz found specific degrees of flexion in plaintiff's left ankle, and Dr. April found plaintiff could bend to 75 degrees, neither physician specifies the normal range of motion, rendering these findings insufficient to establish lack of serious injury. Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350 (2002). Lewis Rothman, M.D., reviewed magnetic resonance imaging (MRI) films of plaintiff's cervical spine taken August 5, 2002, and attests that they show no disc bulge or herniation.

Finally, defendant Ofori relies on plaintiff's own deposition testimony limiting his injuries from the collision to his neck, mid-back, and left ankle. Nowhere, either from plaintiff or his medical records, could defendants or their medical experts discern any fracture ascribed to the May 2002 collision.

Defendants Solano and Molina rely on the reports of Drs. April and DeJesus to support these defendants' cross-motion. In addition to plaintiff's deposition testimony limiting his injuries from the collision to his neck, mid-back, and left ankle, these defendants point to plaintiff's testimony admitting he was looking for work, ceased receiving treatment for his injuries in July 2002, and had no difficulty performing daily living activities after the collision. Based on the evidence on which each defendant relies, each satisfies the initial burden to establish that plaintiff did not sustain a permanent consequential or significant limitation of functioning that qualifies as a serious injury. Thompson v. Abbasi, 15 AD3d 95, 96 (1st Dep't 2005); Bent v. Jackson, 15 AD3d 46, 47 (1st Dep't 2005); Brown v. Achy, 9 AD3d 30, 31 (1st Dep't 2004).

B.Plaintiff's Rebuttal

In an affirmation dated January 31, 2005, Daniel L. Schweitzer, M.D., attests that he examined plaintiff May 29, 2004, finding restrictions in his cervical spine of 44% in right rotation, 56% in left rotation, 67% in extension, and 50% in flexion. Dr. Schweitzer also found reduced deep tendon reflexes in the knees and ankles. Upon reviewing MRI films of plaintiff's cervical spine, Dr. Schweitzer found bulging and probable herniation at C6-C7, with impingement of the spinal cord. Dr. Schweitzer concludes that plaintiff's injuries are permanent and attributes them to the May 2002 collision.

Plaintiff also presents his own deposition testimony and affidavit setting forth the restrictions on his ability to perform daily activities. Together with Dr. Schweitzer's report regarding plaintiff's limitations of motion, his evidence sufficiently raises factual issues as to [*3]significant limitations from the collision that qualify as a serious injury. Id. at 32. Dr. Schweitzer also sufficiently establishes that plaintiff sustained permanent consequential limitations from the collision. Sepulveda v. Reyes, 19 AD3d 297 (1st Dep't 2005); Brooks v. Zises, 16 AD3d 221 (1st Dep't 2005).

C.Reply and Sur-Replies

In reply, Ofori points out that plaintiff failed to establish he sustained a rib fracture from the collision and did not explain a two year treatment gap. The court permitted the parties to submit sur-replies on these issues.

In his January 2005 affirmation, Dr. Schweitzer attests that he reviewed an x-ray of plaintiff's ribs taken January 21, 2005, which showed a healing fracture "commensurate with" an x-ray report of July 26, 2002. Aff. of Timothy L. Bompart, Ex. B ¶ 8. This finding fails to support a causal connection between the fracture and the May 2002 collision, particularly in light of plaintiff's silence regarding any symptoms relating to his rib. The x-ray report of the fracture, moreover, is not in admissible form. Copeland v. Kasalica, 6 AD3d 253, 254 (1st Dep't 2004); Shinn v. Catanzaro, 1 AD3d at 197. Dr. Schweitzer's supplemental affirmation of May 9, 2005, based on his review of an unidentified x-ray and plaintiff's medical history and affidavit, fares no better in establishing a fracture caused by the May 2002 collision. Thus, despite being provided ample opportunity, plaintiff has not offered adequate medical support for a rib fracture constituting a serious injury related to the collision. NY Ins. Law § 5102(d); Montgomery v. Pena, 19 AD3d 288, 290 (1st Dep't 2005); Suarez v. Abe, 4 AD3d 288, 289 (1st Dep't 2004).

As to the gap in plaintiff's treatment, plaintiff attests in his affidavit of February 1, 2005, that he received physical therapy from May through August 2002 and, because he was advised he would no longer benefit from further treatment, he did not visit any physician until Dr. Schweitzer examined him in May 2004. The physical therapy records are not in admissible form. Thus no medical evidence supports the advice plaintiff claims he received.

Although Dr. Schweitzer did not advise plaintiff he would no longer benefit from physical therapy and cannot attest when plaintiff reached that point, Dr. Schweitzer may and does attest that plaintiff would not benefit from further treatment as of the time Dr. Schweitzer examined plaintiff, which sufficiently explains a gap in treatment. Toure v. Avis Rent A Car Sys., 98 NY2d at 355; Turner-Brewster v. Arce, 17 AD3d 189, 190 (1st Dep't 2005); Brown v. Achy, 9 AD3d at 34-35. If plaintiff continued physical therapy longer than necessary, it is of no consequence. If he ceased prematurely, that fact is probative of whether he maximized his recovery and thus of the duration and ultimate consequences of his injuries, which bear on damages, but do not necessarily negate completely the baseline seriousness of his injuries.

IV.CONCLUSION

Since plaintiff has explained the gap in his treatment and raised material factual issues regarding both significant and permanent consequential limitations, NY Ins. Law § 5102(d), the court denies defendants' motion and cross-motion for summary judgment insofar as plaintiff claims these categories of serious injury. Insofar as he claims a fracture as a basis for serious injury, however, the court grants the motion and cross-motion. C.P.L.R. § 3212(e). E.g., Burford v. Fabrizio, 8 AD3d 784, 785-86 (3d Dep't 2004); Hoffman v. Stechenfinger, 4 AD3d 778, 779-80 (4th Dep't 2004). This decision constitutes the court's order. The court will mail copies to the parties' counsel.

DATED: September 23, 2005

_____________________________

LUCY BILLINGS, J.S.C.