Adams v Pierrette
Annotate this CaseDecided on March 23, 2006
Supreme Court, Bronx County
Tricia Adams, Plaintiff(s),
against
Heribert Pierrette, Innocent Augustin, Elrac, Inc., and Anil Chagarlamudi, Defendant(s).
21666/03
John A. Barone, J.
This is a personal injury action arising from an automobile accident which occurred on August 30, 2002. Plaintiff was a passenger in one of the vehicles involved and has sued the operators and owners of all vehicles involved in the incident. Defendant Heribert Pierette and Innocent Augustin have moved for summary judgment on two grounds. First, they allege that plaintiff has failed to establish liability against them. Second, they contend that plaintiff fails to meet the serious injury threshold requirements of Insurance Law §5102(d). Co-defendants have joined in the second contention but oppose the first.
Taking the second argument first the court must deal with one of the more thorny questions in the field of personal injury actions. When does an allegation of "soft tissue" injury qualify as a viable claim under the "no-fault" law of New York? Although the respective Appellate Division and the Court of Appeals have written learnedly and at length on this issue it remains a difficult one to resolve since each case rests on its own specific facts, with only an analogous relationship to previous cases.
In an effort to control the rising level of personal injury litigation the New York State Legislature enacted the "Comprehensive Automobile Insurance Reparations Act" (L. 1973 ch. 13). This legislation was known then and now as the No-Fault Law. Its goal according to Governor Rockefeller was to limit costs to consumers and to relieve court congestion. Governor's Memorandum 1973 McKinney's Session Laws of NY at 2335. The plan was to compensate injured parties for basic economic loss, through mandatory private insurance when such was the result of the operation of a motor vehicle. Compensation was to be without reference to fault. Insurance Law §§5102(a); 5103.
A plaintiff retains the right to initiate a suit only if she has sustained a serious injury as defined by Insurance Law §5102(d). As applicable to this case such injury would be "a personal injury which results in... 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 [*2]and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
In opposition to the defendant's motion, plaintiff averred in her own affidavit supported by the affirmation of counsel and treating physician that as a result of the accident she has sustained posterior lumbar disc herniation at L5/S1; a cervical disc bulge at C3/4; straightening of the cervical curvature; bilateral L5 lumbar radiculopathy, median nerve entrapment of the right wrist and limitation of range of motion of the cervical and lumbar spine. She also complains of post traumatic headaches; as well as pain due to lumbar sprain and strain and swelling.
The affirmation of Peter Kwan, MD., defendant's treating physician lists the following tests performed by himself and others to reach his diagnosis of plaintiff's condition. MRI's of the lumbar and cervical spine performed by Robert Diamond, MD; an EMG study of the lower extremities and an NCV study of the upper extremities performed by Dr. Kwan and various motion tests performed by Dr. Kwan.
As a result of these injuries, plaintiff states that she suffers neck and back pain, severe headaches and limitation of motion. This prevented her from returning to her job and rendered her unable to attend to her newborn baby (she was nine months pregnant at the time of the accident) as she otherwise would have. Specifically she claims to have severe pain lifting her child and in changing and dressing and nursing the child. This same pain forced her to rely on family members to perform household chores and prevented her from/or limited her in pursuing recreational activities or engaging in sexual intercourse.
The question is whether these injuries set forth by plaintiff and the medical proof she has submitted is sufficient to constitute and substantiate a serious injury under the criteria set forth in Insurance Law §5102. The determination of this question is dependent upon the determination of certain underlying issues.
Plaintiff has set forth sufficient evidence to support her claim of a disc herniation. Specifically her treating physician Dr. Kwan in his report, based on the MRI report of Dr. Robert Diamond, concludes that she sustained a disc herniation at L5/S1 and a right side disc bulge at C3/4. However proof of a herniated or bulging disc absent additional medical evidence of significant physical limitation is not alone sufficient to establish a serious injury. Pommells v. Perez 4 NY3d 566, 797 NYS 2d 380, 830 NE 2d 278.
Dr. Kwan noted significant limitation of motion and stated that palpitation tests which he performed disclosed lower lumbosacral spasms and tenderness. Dr. Kwan states that these tests in conjunction with the MRI, EMG and NCV tests already performed were consistent with plaintiffs subjective complaints noted above. Plaintiff contends that all of these results constitute sufficient objective medical to allow for the continuance of the case. Defendants maintain that none of these injuries can be deemed permanent under the law and have submitted affirmations from Dr. Andrew Weiss, MD and Dr. Michael Carciente, MD, in support thereof. [*3]
Not surprisingly, defendants' experts are in substantial agreement with each other and in substantial disagreement with plaintiff's expert. They reviewed the same MRI reports, EMG reports and neurodiagnostic test results as plaintiff and performed physical examination and motion tests similar to plaintiff's examining physician. They concluded there were no residual disabilities related to the motor accident. They found no significant limitation of motion and flexibility and no spasms.
Additionally plaintiff contends that separate and apart from the issue of permanent injury, plaintiff has satisfied §5102 in the alternative in that the injury required her to miss four months work due to the accident and submits a no fault wage verification from her employer in support thereof. Plaintiff thus contends that she has made sufficient showing, pursuant to the statute, that during the 180 days following the accident she could not engage in her usual and customary activities. Defendants counter that plaintiff's four months absence from work after the accident is due to the fact that at the time of the accident plaintiff was nine months pregnant and delivered her child and then took an additional 3-4 months before resuming her work.
The final issue underlying plaintiffs claim of serious injury is the gap in defendants treatment of thirty-two months. Defendants contend that this is fatal to her claim of serious injury. Dr. Kwan on behalf of plaintiff, has affirmed that the reason for this gap was that plaintiff had reached a plateau and had achieved maximum medical improvement but that her symptoms persisted.
Based on the record herein the court is unable to resolve the issue of serious injury at this time in defendant's favor.
As to the question of a permanent loss of use of body function or system. Plaintiff has made subjective complaints that as a result of the accident she is unable to attend to her children or perform her tasks at work in the manner which she had previously carried on these activities. Her examining physician Dr. Kwan points to objective medical tests: MRI, EMG and neurological test as well as subjective motion tests he has conducted and concludes that there is these substantiate plaintiff's permanent loss of function. Reviewing the same objective test data and conducting their own physical examinations Drs. Weiss and Carciente arrive at diametrically opposed conclusions. There is simply no way to resolve these differences at this stage of the litigation.
In setting forth their respective claims, experts for plaintiff and defendant cannot simply make conclusory statements regarding the state of plaintiffs injury. Both sides must base their opinions of objective evidence Junco v. Ranzi, 288 AD2d 440; Papadonikolakis v. First Fid. Learning Group, 273 AD2d 299; Lowe v. Bennett 122 AD2d 728; Hewan v. Collazzo 223 AD2d 425. In this case, as set forth above, both sides are relying upon the same set of objective tests. Plaintiff in relying on Dr. Kwan's testimony on medical tests has gone beyond mere subjective complaints. Toure v. Avis Rent a Car,98 NY2d 345. In addition Dr. Kwan's report provides a sufficient objective evidence as to duration extent or degree of injury claimed by plaintiff. Arjona [*4]v. Calcano , 7AD 3rd 279.
It is true that Dr. Kwan conclusions are vigorously contested by Drs. Weiss and Carciente. Nevertheless, conflicting medical evidence on the issue of serious injury does not provide a sufficient basis for a court to grant summary judgment.Cassaanol v. Williamsburg Plaza Taxi ,234 AD2d 208. Conflicting medical evidence as to permanency and significance of a plaintiff's injury warrant denial of summary judgment. Noble v. Ackerman, 252 AD2d 392. The question of "dueling experts" in this case should properly be resolved at trial, when the learned physicians will be required to defend their respective conclusions.
As to the question of the 90/180 day standard, plaintiff say she was unable to return to work for approximately 120 days. She says she intended to return shortly after the delivery of her second child but that the accident related injury prevented her from doing so. Once again Dr. Kwan states that the objective medical evidence supports this claim. Defendants contend that substantially all of defendants absence from work was the result of her desire to stay home with their newborn infant. Drs. Weiss and Carciente state that the medical results do not substantiate that plaintiff was unable to return to work. The plaintiffs claim here seems to resolve itself into an issue of credibility. Once again the court is unable to resolve this dispute short of trial.
Finally there is the question of the 3½ year gap in the plaintiffs treatment. As stated above such a gap if unexplained, can be fatal to a plaintiff's case. Pommells, supra. In his affirmation as noted above, Dr. Kwan states that in his medical opinion the plaintiff had achieved maximum medical benefit from her treatment and no further treatment was indicated although the conditions would persists.
In Brown v. Dunbar the companion case to Pommells, supra at 577 the Court of Appeals concluded, "A plaintiff need not incur the additional expense of consultation, treatment or therapy, merely to establish the seriousness or causal relation of the injury." Likewise in Brown v. Achy the Appellate Division, First Department concluded that a gap in treatment when properly explained is not fatal to the plaintiff's claim. 9 AD3d 30.
Once again we are faced with an issue more properly reserved for trial.
That portion of the motion by defendants Pierette and Augustin seeking summary judgment on liability due to a rear end collision is denied.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of facts as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320. The burden then transfers to the opponent to show that there are issues of fact that must be denied by a trier of fact. The Court of Appeals has stated in the case of Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065: [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the Court as a matter of law in directing judgment' in his favor (CPLR 3212[b]) and he must do so by tender of [*5]evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact'. Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form.
In the matter before the court movant contends that he is entitled to summary judgment because he was hit in the rear end of his vehicle. A rear end collision on its own is enough to show a prima facie case of negligence, however, the opponent then is allowed to set forth how the accident occurred, and bring up issues to rebut the inference of negligence created by the unexplained collision. Leal v. Wolff 224 AD2d 392. In the case at hand, defendant Augustin states that the vehicle he drove was stopped and hit in the rear. However, defendant Chagarlamudi testifies in his deposition that seconds before impact the defendant Augustin's vehicle was still moving and that the traffic was stop and go approaching the fork as vehicles waited for oncoming traffic before proceeding towards the left. Defendant Chagarlamudi further testifies that at least half of the Augustin vehicle was in his lane, and was trying to cut in front of his vehicle, and that the cars were so close that defendant Chagarlamudi tried to stop, but the other car was still moving into his lane when the contact occurred. When the evidence herein, especially the depositions of the two operators, is viewed in the light most favorable to the non-moving party (see, Assaf v. Ropog Cab Corp., 153 AD2d 520) it is clear that issues of fact exist as to the positions of the cars at the time of impact, and as to whether one defendant was attempting to cut off the other. The deposition of both Augustin and Chagarlamudi clearly set up issues and question of fact that need to be decided by a trier of fact. A review of the proffered testimony shows that the stories set forth therein are in conflict and factual determinations, including those of credibility must be made.
The motion and cross-motions are denied.
This constitutes the decision and order of this Court.
Date:
John A. Barone, JSC
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