Kennedy v Gerchikov

[*1] Kennedy v Gerchikov 2006 NY Slip Op 50379(U) [11 Misc 3d 1064(A)] Decided on March 14, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2006
Supreme Court, Kings County

PAUL J. KENNEDY and KERRY GIOVE, Plaintiffs,

against

DMITRIY MIKHAYL GERCHIKOV and DMITRIY GERCHIKOV, Defendant(s).



2801/04

Laura L. Jacobson, J.

Defendants move for an order pursuant to CPLR section 3212 dismissing plaintiffs' complaint on the ground that plaintiffs have not sustained serious injury within the meaning of Insurance Law §5102(d). Plaintiff cross moves for an order pursuant to CPLR section 3212, granting summary judgment in favor of plaintiff. Plaintiffs commenced this action seeking damages for injuries allegedly sustained on September 4, 2003 on Ocean Parkway in the vicinity of its intersection with Gravesend Neck Road in Brooklyn, New York. Plaintiffs allege that the motor vehicle [*2]operated by defendant Dmitriy Gerchikov and owned by defendant Dmitriy Mikhayl Gerchikov collided with their vehicle.

Plaintiff Paul J. Kennedy

In his bill of particulars, plaintiff Kennedy alleges that he sustained the following injuries: lumbar spine posterior disc herniation at the L5-S1 levels; lumbar spine strain, sprain, derangement and radiculopathy with pain and tenderness radiating to the extremities; thoracic spine posterior disc herniation at the T6-T7 level; thoracic spine strain, sprain, derangement and radiculopathy with pain and tenderness radiating to the extremities; cervical spine strain, sprain, derangement and radiculopathy with pain and tenderness radiating to the extremities; left knee sprain and strain; closed head injury; post-concussion syndrome; post traumatic stress disorder; bilateral knee and hip pain; left shoulder injury. Plaintiff alleged that the injuries were permanent in nature.

In support of the motion, defendants submitted a medical report, affirmed pursuant to CPLR 2106, and completed by their medical expert Edward A. Toriello M.D., an orthopedic surgeon who examined the plaintiff on April 21, 2005. Dr. Toriello reported that plaintiff Kennedy is 42 years old and he continued to complain of low back pain. Dr. Toriello conducted range of motion tests of plaintiff's cervical spine, lumbar spine, shoulders, elbows, wrists, hands, hips, and knees. In his report, Dr. Toriello quantified his results and compared them to normal standards which he also quantified. All of plaintiff Kennedy's range of motion were within normal limits. Dr. Toriello's impression was that the plaintiff revealed evidence of a resolved cervical hyper extension injury, resolved low back strain and resolved left thigh contusion. Dr. Toriello found that plaintiff Kennedy has no evidence of disability and he felt that plaintiff is presently able to perform the duties of his occupation.

Defendants also submitted the duly affirmed medical reports completed by radiologist A. Robert Tantleff, M.D. Dr Tantleff reported that he reviewed the September 19, 2003 MRI films of plaintiff Kennedy's thoracic spine and the October 17, 2003 MRI films of plaintiff Kennedy's lumbar spine. Dr. Tantleff's impression of the MRI of plaintiff Kennedy's thoracic spine was as follows: chronic degenerative discogenic disc disease and thoracic spondylosis with maintenance of the neural foramina despite region facet arthropathy. There is mild costovertebral junction osteoarthritic changes as noted. At T6/7 there is minimal left anterior focal disc protrusion of no consequence. This does not compress the thoracic cord or compromise the exit zone of the neural foramen. Furthermore, in association with the foregoing there is disc degeneration, desiccation and discovertebral endplate spurring which further confirms the chronicity of these findings. There is no evidence of acute disc herniations. In Dr. Tantleff's opinion, the findings are consistent with the plaintiff's age. Dr. Tantleff asserts that the findings are chronic, longstanding and not causally related to the motor vehicle accident but are consistent with wear-and-tear of the normal aging process. Dr. Tantleff's impression of the MRI films of plaintiff's lumbar spine was as follows: chronic degenerative discogenic disc disease and lumbar spondylosis as described. The neural foramina are maintained There is mild regional facet arthropathy. There is no MR [*3]evidence of muscle spasm of the deep muscles adjacent to the lumbar spine. At L5/S1 there is central focal degenerative noncompressive disc herniation which is central and slightly left paracentral in position and which does not a compress, deviate or displace the thecal sac, exiting nerve or nerve roots or intrude into the exit zone of the neural foramen and/or lateral recess. There is no evidence of central canal, lateral recess or neural foraminal stenosis at this or any level nor is there evidence of mass effect on the thecal sac or exiting nerve roots. Furthermore, in association with the foregoing there is disc degeneration, desiccation, loss of height and discovertebral endplate spurring which further confirms the chronicity of these findings. Based on the images submitted, there is no evidence of recent trauma or annular edema of any of the outermost annuli noted to suggest a recent herniation. TL4/5 and L5/S1 levels are the commonest levels for discal degeneration in the lumbar spine accounts for approximately 87% of all degenerative changes in the lumbar spine. Again, Dr. Tantleff determined that the findings were age related and not causally related to plaintiff's motor vehicle accident.

In opposition to the motion, plaintiffs submitted an affidavit by plaintiff Kennedy stating that as a result of the September 4, 2003 accident, he sustained injuries to his back and neck. Plaintiff Kennedy alleges that he has received medical treatment for the injuries from the day of the accident to the present and he is currently under the care of Dr. Hausknecht. Plaintiff asserted that the pain in his back and neck prevents him from participating in activities such as walking, sitting and sleeping. Plaintiff Kennedy states that his injuries limit his ability to perform such daily activities as bending and household chores.

Plaintiff also submitted an affidavit from plaintiff's treating physician Dr. Alan Hausknecht. Dr. Hausknecht stated that he initially saw plaintiff Kennedy on September 11, 2003 for injuries sustained in the September 4, 2003 accident. He reported that the plaintiff complained of severe neck, head and low back pain radiating into the shoulders and legs, and also of severe headaches. Dr. Hausknecht stated that on September 11, 2003, he performed a thorough neurological examination on plaintiff Kennedy which indicated that the plaintiff sustained a concussion; post-concussion syndrome; cervical sprain and strain; thoracic sprain and strain; lumbosacral sprain and strain; and post-traumatic stress disorder. He stated that plaintiff Kennedy's diagnostic tests revealed MRI of the lumbosacral spine on 10/17/03 revealed posterior disc herniation L5-S1; and MRI of the thoracic spine dated 9/19/03 revealed posterior disc herniation at T6-T7. Dr. Hausknecht asserted that he referred plaintiff Kennedy for physical therapy and to his knowledge plaintiff has received continuous treatment well into the present year, 2005. He stated that he saw the plaintiff in September, October, November and December of 2003 and throughout 2004. He stated that on his March 3, 2005 re-examination of the plaintiff, he found that plaintiff's condition had worsened and he felt that plaintiff Kennedy should continue with a mild progressive exercise program. Dr Hausknecht reported that his examination of plaintiff Kennedy on August 16, 2005, revealed tenderness and stiffness in the lumbar region. He stated that plaintiff had restriction of extension, flexion and rotation at 50 per cent of normal. He stated that plaintiff had pain-associated difficulty doing rapid rhythmic alternating movements, standing on his heels and toes. Dr. Hausknecht's diagnosis remained lumbosacral radiculopathy and he renewed plaintiff's medications. Dr Hausknecht found that the plaintiff had sustained a causally-[*4]related permanent, painful disability at both the cervical and lumbar spine. In his opinion, with a reasonable degree of medical certainty, the plaintiff's condition will worsen with passing time and plaintiff will require intermittent evaluations and treatments and may require surgery.

Defendant has made a prima facie showing of entitlement to summary judgment shifting the burden to plaintiff to establish the existence of a triable issue of fact. Here, plaintiff has failed to meet his burden. The only medical report submitted in admissible form was the affidavit of Dr. Hausknecht. Although the plaintiff's treating physician found that the plaintiff sustained a permanent injury and recommended a course of treatment, he failed to set forth a satisfactory basis for his claim. While Dr. Hausknecht asserted that plaintiff sustained a 50% limitation in range of motion in the lumbosacral region, he failed to set forth the tests that he used to arrive at this conclusion, or to quantify the results of those tests (see Bailey v. Ichtchenko, 11 AD3d 419 [2nd Dept. 2004]). Furthermore, plaintiffs failed to submit sufficient evidence to establish that he was unable to perform substantially all of his daily activities for not less than 90 of the180 days immediately following the accident (see Sainte-Aime v Ho, 274 AD2d 569 [2nd Dept. 2005]). Consequently, defendant is entitled to summary judgment against plaintiff Kennedy.

Plaintiff Kerry Giove

In her bill of particulars plaintiff Kerry Giove alleges that she sustained the following injuries: lumbar spine posterior disc herniation at the L5-L5 levels; lumbar spine paracentral disk herniation at the L5-S1 level; lumbar spine strain, sprain, derangement and radiculopathy with pain and tenderness radiating to the extremities; cervical spine strain, sprain, derangement and radiculopathy with pain and tenderness radiating to the extremities; thoracic spine strain, sprain, derangement and radiculopathy with pain and tenderness radiating to the extremities; right wrist injury; right elbow injury; post traumatic headaches; right rib injury with pain on deep inspiration; right shoulder rotator cuff tendinitis; multiple bruises in the right leg; left shoulder injury and posttraumatic stress disorder.

In support of the motion defendant submitted the duly affirmed medical report of Dr. Toriello who examined plaintiff Giove on April 21, 2005. Dr. Toriello reported that the plaintiff is a 32 year old unemployed woman who was a seat belted passenger in the front seat at the time of the motor vehicle accident. He stated that Plaintiff Giove continued to complain of low back pain. Dr. Toriello performed range of motion tests on plaintiff Giove's cervical spine, lumbosacral spine, shoulders, elbows, wrists, hands, hips and knees. Dr. Toriello quantified his results and compared them to normal standards which he also quantified. All were within normal range. Dr. Toriello's impressions were that plaintiff Giove reveals evidence of a resolved cervical hyper extension injury, resolved low back strain and resolved right thigh contusion. In Dr. Toriello's opinion, plaintiff Giove revealed no evidence of disability from any orthopaedic injury sustained in the accident and the plaintiff does not require further physical therapy treatment. Dr. Toriello felt that the plaintiff could presently perform the duties of her occupation.

Defendant also submitted the duly affirmed medical report of Dr. Tantleff. Dr. Tantleff reviewed [*5]the MRI of plaintiff Giove's lumbar spine taken on 9/19/03. He described the films as grainy and blurry. Dr. Tantleff's findings were as follows: MRI examination of the lumbar spine reveals longstanding chronic degenerative discogenic disc disease and lumbar spondylosis. He stated that there is no evidence of an acute disc herniation. In Dr. Tantleff's opinion, the findings are consistent with the plaintiff's age and are not causally related to the September 4, 2003 motor vehicle accident. Dr. Tantleff stated that the findings are chronic longstanding processes requiring years to develop as presented and are consistent with wear-and-tear of the normal aging process. Dr. Tantleff asserted that it is improbable that a medically uncomplicated traumatic event would be causal of multilevel discal abnormalties in the lumbar spine and there is no evidence of acute trauma to plaintiff Giove's lumbar spine.

In opposition to the motion plaintiff's submitted an affidavit from plaintiff Giove in which she alleges that she has been receiving medical treatment for the injuries sustained in the accident from the day of the accident to the present. Plaintiff alleges that she is currently under the care of Dr. Hausknecht. Plaintiff Giove alleges that as a result of the accident, she currently suffers from pain and discomfort in her back and neck and limitation of motion of her lower back and neck which prevents her from participating in activities such as walking, sitting and sleeping. She stated that her injuries limit her ability to perform such daily activities as bending, lifting and household chores.

Plaintiff's also submitted the medical affidavit of Dr. Hausknecht. Dr. Hausknecht reported that he initially saw plaintiff Giove on September 11, 2003 for the injuries that she sustained in the motor vehicle accident on September 4, 2003. He stated that she presented with complaints of severe neck and low back pain radiating down both shoulders and down both legs. Dr. Hausknecht reported that plaintiff's September 11, 2003 examination indicated post closed head injury; concussion; post-concussion syndrome; cervical sprain and strain; injuries to her right and left shoulders, right elbow; right wrist; thoracic sprain and strain; lumbosacral sprain and strain; injuries to both knees and post-traumatic stress disorder. Dr. Hausknecht noted that a MRI of plaintiff Giove's lumbosacral spine revealed posterior disc herniation at L4-L5 and a paracentral disc herniation at L5-S1. He stated that he referred plaintiff Giove for physical therapy and to his knowledge she received continuous treatment until approximately March of 2005. He reports that plaintiff has subsequently presented herself to him and his associates and that she was seen throughout the remainder of 2003, all of 2004 and into 2005. He. Stated that his most recent examination of plaintiff Giove occurred on August 16, 2005. He stated that his examination revealed that there is a generalized stiffness and tenderness in the lumbar region and there is restriction of extension, flexion and rotation at 50 per cent of normal. He noted that straight leg raisng signs are positive at 20 degrees. He stated that there was lumbar radiculopathy and he prescribed motrin and stated that plaintiff will continue her home stretching exercise routine. In Dr. Hausknecht's opinion, plaintiff Giove sustained a causally-related permanent, painful disability at both the cervical and lumbar spines. Dr. Hausknecht stated with a reasonable degree of medical certainty that plaintiff's condition will worsen with passing time and she will require intermittent evaluations and treatments and may require invasive treatment and surgery. [*6]

Here again, defendant has made a prima facie showing of entitlement to summary judgement and plaintiffs have failed to establish the existence of a triable issue of fact. Dr. Hausknecht's affirmation was insufficient because it failed to setforth the tests that he used to arrive at his conclusion or to quantify the results of those tests (Bailey v. Ichtchenko, supra). Moreover, plaintiffs failed to submit sufficient evidence to establish that she was unable to perform substantially all of her daily activities for not less than 90 of the 180 days immediately following the accident (see Saint-Aime v. Ho, supra). Consequently, defendant is entitled to summary judgement against plaintiff Giove.

Accordingly, defendants' motion for summary judgment is granted and the complaint is dismissed. Plaintiffs' cross motion for summary judgement is denied.

This constitutes the decision and order of this court.

ENTER:

LAURA L. JACOBSON, JSC