Miuccio v Kaloyios

[*1] Miuccio v Kaloyios 2006 NY Slip Op 50624(U) [11 Misc 3d 1079(A)] Decided on April 7, 2006 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2006
Supreme Court, Richmond County

JACQUELINE MIUCCIO, Plaintiff,

against

STEVEN KALOYIOS and JAMES M. SICA, Defendants.



12201/2002

Philip G. Minardo, J.

Upon the foregoing papers, defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff's injuries fail to meet the statutory threshold of "serious injury" as defined in Insurance Law §5102(d) is granted.

This matter rises out of a two vehicle accident which occurred on July 2, 1999 at the intersection of Jewett Avenue and College Avenue, in Staten Island, New York. As a result, plaintiff claims to have sustained "serious injuries", including permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; and significant limitation of use of a body function system.

In support of the motion for summary judgment, defendants have submitted the June 8,

2005 affirmations of a neurologist, R.C. Krishna, M.D., and an orthopedist, Dr. Philip Keats (see Defendants' Exhibits D an E). Although Dr. Krishna has quantitatively determined, e.g., the range of motion in plaintiff's cervical and thoracolumbar spine, his failure to relate those findings to "normal" renders his affirmation legally insufficient to establish a prima facie case for dismissal (see [*2]Fakhoury v Kinlock,, 2006 NY Slip Op 1576 [2d Dept]). However, this same deficiency does not appear in the affirmation of Dr. Keats, who compares plaintiff's measured range of motion as revealed upon objective testing to normal range of motion and concludes that while plaintiff's subjective complaints are causally related to the accident of July 2, 1999, the minimal objective findings discernible during his orthopedic examination are inconsistent with disc herniation. In his opinion, plaintiff sustained "no disability from an orthopedic standpoint" (Defendants' Exhibit "D").

In opposition to the motion, plaintiff asserts that since neither of defendants' examining physicians reviewed the affirmed lumbar MRI report of Dr. Novak, they have failed to meet their initial burden of proof (see Lesser v Smart Cab Corp., 283 AD2d 273, 274). To the extent applicable, said MRI report states that plaintiff sustained a left lateral disc herniation at L5-S1, compressing the left S1 nerve root, diffuse disc bulging at L4-5, and disc dissection at L4-5 (see Plaintiff's Exhibit "E"). Plaintiff contends that movants' failure to demonstrate that these disc injuries are not causally related to the accident warrants denial of the motion (see Mullings v Bonilla, 1 AD3d 417).

The effect of the failure of a defense medical expert to address an MRI report was recently addressed by the Second Department in Kearse v New York City Tr Auth., (16 AD3d 45). In an effort to resolve an apparent conflict between its holdings in Kowalek v Picariello (306 AD2d 249 [2003]) and Bernabel v Perollo, (300 AD2d 330 [2002]), the Court in Kearse concluded that a defendant "who submits admissible proof that the plaintiff has a full range of motion, and that he or she suffers from no disability causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain serious injury within the meaning of Insurance Law §5102(d), despite the existence of an MRI which shows herniated or bulging discs. . . Thus, the failure of a defendant's medical expert to address the findings contained in MRI reports reviewed as part of his or her examination is academic in the face of that expert's finding of a full range of motion and a lack of disabilities causally related to the motor vehicle accident (Kearse v New York City Tr Auth., 16 AD3d at 49-50, citing Bernabel v Perullo, supra).

At bar, Dr. Keats' affirmation refers to but does not discuss plaintiff's MRI. Nevertheless, the doctor was able to conclude that plaintiff has normal range of motion and that despite minimal objective findings, she has no orthopedic disability. In the opinion of this Court, this finding of minor, "mild or slight limitation of use" resulting from the accident is sufficient to meet defendants' initial burden of establishing that plaintiff did not sustain a serious injury (Gaddy v Eyler, 79 NY2d 955 [1992]; see Pommells v Perez, 4 NY3d 566 [2005].

In opposition, plaintiff has failed to raise a triable issue of fact. As applicable, plaintiff's out-of-state chiropractor, Dr.Findley [FN1] and Dr. Kenneth Hansraj of the Special Spine Institute, each base their opinions upon a single examination of plaintiff conducted more than six years after the accident, and neither address the six year gap in treatment (see Stowe v Simmons , 253 AD2d 422 [1998]). Accordingly, neither report is sufficient to raise an issue of fact under the "permanent consequential limitation of use" or "significant limitation of use" categories of serious injury (see Arjona v Calcano, 7 AD3d 279, 280; Vaughan v Baez, 305 AD2d 101, 102). The same is true of plaintiff's claim under the "permanent loss of use" category, as none of her claimed injuries are [*3]alleged to include the total loss of use of any body organ, member, function or system" as defined by Insurance Law §5102(d) (see Oberly v Bangs Ambulance, 96 NY2d 295).

Finally, plaintiff has failed to submit any competent medical evidence to support her claim that the accident rendered her unable to perform substantially all of her usual and customary daily activities for not less than 90 of the 180 days immediately following the accident (see Sante-Aime v Ho, 274 AD2d 569 [2000]).

In light of the above, it is hereby

ORDERED that defendants' motion for summary judgment is granted and the complaint dismissed; and it is further

ORDERED that the Clerk shall enter judgment accordingly.

E N T E R ,

J.S.C.

Dated: April 7, 2006

cd Footnotes

Footnote 1:The court notes the supporting affidavit of Dr. Findley consists of a notarized "affirmation" that lacks the certification required by CPLR 2309(c).