Greco v Chaudry

[*1] Greco v Chaudry 2006 NY Slip Op 50798(U) [11 Misc 3d 1090(A)] Decided on March 22, 2006 Supreme Court, Kings County Ruditzky, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2006
Supreme Court, Kings County

Marianna Greco and Anselmo Greco, Plaintiffs,

against

Javaio Chaudry, Defendant.



44488/03

Howard A. Ruditzky, J.

Upon the foregoing papers, defendant Javaio Chaudry moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiffs' complaint on the basis that plaintiff Marianna Greco did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d).

Factual Background [*2]

This is an action to recover damages for personal injuries allegedly sustained by plaintiff Marianna Greco ("plaintiff" or "Ms. Greco") in a May 17, 2003 motor vehicle accident in which a vehicle being operated by plaintiff's husband, Anselmo Greco[FN1] ("Mr. Greco"), came in contact with the defendant's vehicle on 12th Avenue, near the intersection of West 34th Street in the Borough of Manhattan, County, City and State of New York. At the time of the accident, Ms. Greco was a passenger in the vehicle being operated by her husband. During his deposition, Mr. Greco testified that the accident occurred while he was traveling northbound on 12th Avenue at approximately 30 miles per hour. Mr. Greco claims that the defendant, who was operating a limousine, suddenly pulled the limousine out in front of him striking the right side (passenger side) of plaintiffs' vehicle. Ms. Greco was taken from the scene of the accident by ambulance to St. Clare's Hospital in New York City, where she was treated in the emergency room and subsequently discharged. As a result of the accident, plaintiffs claim, in their bill of particulars, that Ms. Greco sustained, inter alia, the following injuries: bulging discs at C3-C4, C4-C5; subligamentous herniation of disc C5-C6; cervical disc disorder with radiculopathy; and paraspinal spasms on the left right along L-S spine and interspinous tenderness at L4-L5 and S1. Plaintiffs further claim that Ms. Greco sustained a "serious injury" in that she sustained severe and permanent injuries to her neck, back and cervical and lumbosacral areas with limitation of motion, was confined to her bed and/or house for a period of two months, and that she remains partially disabled to date.

On or about January 17, 2004, plaintiffs commenced the instant action to recover compensatory and derivative damages arising out of the collision. Plaintiffs allege that the defendant was negligent in the operation, management and control of his motor vehicle. Issue was joined by defendant by the service of a verified answer on or about February 6, 2004.

Defendant's Contentions

In support of his motion for summary judgment, the defendant relies upon plaintiffs' bill of particulars; excerpts from plaintiffs' deposition testimony; excerpts from defendant's deposition testimony; a report of an independent medical examination conducted by Dr. Robert S. April, dated January 19, 2005; medical records from the Emergency Room of St. Clare's Hospital on the date of the accident; an MRI scan of plaintiff's cervical spine, taken on July 19, 2003; and a CPT (Current Perception Threshold) Clinical Evaluation report by Dr. Andre Spindler, dated September 18, 2003.

As to St. Clare's Hospital's Emergency Room medical records, the defendant points out that it only notes plaintiff's complaints of pain related to the surgical site where she had undergone gallbladder surgery three weeks prior to the subject accident. In addition, defendant relies upon the CPT Clinical Evaluation report, which states that a clinical evaluation was performed on plaintiff on September 17, 2003 by Dr. Andre Spindler, at the request of plaintiff's chiropractor, Dr. Rubino. In the report, Dr. Spindler noted that the [*3]plaintiff presented with complaints of radiating low back pain associated with weakness in her lower extremities. Dr. Spindler further noted that there was no significant detection of nerve impairment at any site tested (6 nerves from 3 dermatomes, L4, L5 and S1) and that all measures were within normal parameters. Dr. Spindler ultimately concluded that there were no neurological abnormalities to support the plaintiff's subjective complaints.

Defendant also relies upon the report of its own examining physician, Dr. Robert S. April, who conducted an independent neurological examination of the plaintiff in January, 2005. Dr. April stated that the plaintiff presented with complaints of intermittent pain in her low back and neck, and that she suffered from headaches. Dr. April noted that the plaintiff demonstrated an objectively normal neurological examination, that all reflexes were present and equal in upper and lower limbs, and that there were no spasms of the paraspinal musculature. In addition, the straight leg raising test was negative to 75 degrees bilaterally, bowstring sign was absent, percussion and palpation of the vertebral column were unremarkable, range of motion of the upper limbs was normal, and there was no Tinsel sign or other signs of carpal tunnel syndrome. Dr. April concluded that there were no objective neurological findings to substantiate plaintiff's complaints of pain and that, in his opinion, she was not disabled and therefore required no further treatment. Dr. April further concluded that the accident did not produce permanent neurological residual signs, limitation of function or disability. Dr. April stated that his conclusion was based upon his own observations and plaintiff's history, but admitted that he had not reviewed any of the radiological images.

Defendant avers that the medical records merely establish that at the time the MRIs were taken, they revealed that the plaintiff had evidence of a non-impinging herniated disc at C5-C6 and non-impinging bulges at C3-C4 and C4-C5, which does not constitute a serious injury. Defendant also avers that the plaintiff cannot succeed on a claim that the injuries that she sustained in the subject accident prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. In this regard, defendant argues that at the time of the accident, plaintiff was not employed; and her bill of particulars states that she was only confined to her bed and/or house for a period of two months.

Plaintiffs' Contentions

In opposition to the motion, plaintiffs argue that the defendant has failed to sustain his burden of demonstrating that Ms. Greco did not sustain a serious injury. More specifically, plaintiffs contend that the defendant did not submit any expert film to refute the findings in the plaintiff's MRI reports, and that the report by defendant's examining physician, Dr. April, failed to mention said MRIs. Further, plaintiffs assert that the defendant failed to show that the injuries sustained by Ms. Greco were not serious and/or caused by the subject accident. As an initial matter, plaintiffs note that Ms. Greco underwent two MRIs, one of her cervical spine and the other of her lumbosacral spine. In this regard, plaintiffs rely upon the [*4]affirmation of Dr. A. Ramasubramaniam, a radiologist, wherein he noted that the MRI of plaintiff's cervical spine revealed subligamentous herniation disc at C5-C6 and bulging discs at C3-C4 and C4-C5. Dr. Ramasubramaniam further noted that the MRI of plaintiff's lumbosacral spine revealed central herniation of L4-L5 and L5-S1 discs with compression of the thecal sac.

Plaintiffs also rely upon the medical affidavit of Dr. Rubino, the chiropractor who initially treated the plaintiff. Dr. Rubino states that he began treating plaintiff on May 23, 2003, six days after the accident. Dr. Rubino noted that his initial examination of plaintiff revealed that the Formal Compression and Jackson Compression tests were both positive bilaterally, the Soto Hall test was positive, and the right and left cervical paraspinal regions had edema, myospasm and tenderness. Dr. Rubino set forth quantitative range of motion assessments and percentages for plaintiff's cervical and lumbar spines. Some of his findings include: (1) limitations of the cervical spine (namely, flexion at 40 degrees [normal is 45], extension at 50 degrees [normal is 55], left and right rotation at 60 degrees [normal at 70], and left and right lateral flexion at 30 degrees [normal at 40]); (2) limitations of the lumbar spine (namely, flexion at 60 degrees [normal is 75], right rotation at 20 degrees [normal is 30], left rotation at 20 degrees [normal is 30], left lateral flexion at 20 degrees [normal is 35], and right lateral flexion at 20 degrees [normal is 35]); (3) Fabre Patrick's test was positive on the right; (4) straight leg raising test positive on right; (5) Kemps test positive on right; (6) Yeoman's test positive bilaterally; and (7) Valsalva's Maneuver was positive. Dr. Rubino also found that plaintiff's right and left thoracic paraspinal regions had edema, myospasm and tenderness. Dr. Rubino further noted that he continued treating the plaintiff until March 2004, at which time he felt that she had reached maximum medical improvement and that any further treatment would be palliative in nature.

Dr. Rubino examined the plaintiff again on July 18, 2005. He noted that his examination revealed the following limitations with respect to the cervical spine: extension at 50 degrees (normal is 55), and left and right rotation at 65 degrees (normal at 70). He also noted the following limitations as to the lumbar spine: flexion at 65 degrees (normal is 75), extension at 25 (normal is 30), left and right lateral flexion at 30 degrees (normal is 35), and straight leg raising test positive on right and left at 60 degrees. Dr. Rubino ultimately concluded that the plaintiff's injuries were "clinically correlated" to the cervical and lumbosacral MRIs the plaintiff underwent which revealed disc bulges at C3-C4, C4-C5, as well as herniations at C5-C6, L4-L5 and L5-S1. He further concluded that the plaintiff's injuries, which resulted in a significant limitation of use of both cervical and lumbar spines, were caused by the subject motor vehicle accident.

Plaintiff also relies upon the medical affirmation of Dr. Mihir Bhatt, who examined the plaintiff on June 27, 2003. Dr. Bhatt performed an EMG which was consistent with a right C5-C6 radiculopathy. He next examined the plaintiff on July 18, 2005, and found that she had hypothesia in the right thumb and shoulder and a positive straight leg test. Dr. Bhatt concluded that [*5]the plaintiff's injuries resulted in a significant limitation of use of her cervical and lumbar spines, which were caused by the subject motor vehicle accident.

Discussion

Pursuant to Insurance Law § 5102(d), "serious injury" includes the following:

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 eighty days immediately following the occurrence of the injury or impairment.

When a defendant moves for summary judgment to dismiss the action, the burden is placed upon the defendant to prove, through admissible evidence, that the plaintiff failed to meet the statutory threshold of "serious injury" (see Lagois v Public Administrator of Suffolk County, 303 AD2d 644 [2003]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). To prove plaintiff did not suffer serious injury, defendant must submit "the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support [her] claim" (Grossman v Wright, 268 AD2d 79, 84 [2000]; Turchuk v Town of Wallkill, 255 AD2d 576 [1998]). Once the defendant has shown, prima facie, that the plaintiff did not sustain a serious injury, the burden shifts to the plaintiff, who then must present a triable issue of fact through admissible evidence to successfully oppose defendant's summary judgment motion (see Grossman, 268 AD2d at 84; Monette v Keller, 281 AD2d 523 [2001]; Ocasio v Henry, 276 AD2d 611 [2000]).

Here, defendant's examining physician, Dr. April, opined that the subject accident did not result in plaintiff's limitation of function, but he failed to set forth any quantitative range of motion assessments or percentages to support his conclusion. Moreover, in reaching his conclusion, Dr. April admitted that he did not review the radiological images (the MRIs) taken of plaintiff's spine. Because Dr. April did not review plaintiff's MRI reports, and did not offer an objective basis of comparison for plaintiff's range of motion, the defendant has failed to satisfy his initial burden (see Dioguardi v Weiner, 288 AD2d 253 [2001][court determined the defendants were not entitled to judgment as a matter of law on the issue of the plaintiff's serious injury due, in part, to the defendants' doctor's affirmation, which did not confirm whether he had examined the plaintiff's MRIs]).

Moreover, even assuming arguendo that the defendant met his burden, in opposition to the defendant's motion, the plaintiffs have submitted sufficient evidence creating a triable issue of fact with regard to their claim that Ms. Greco sustained a "serious injury" (see Insurance Law § 5102[d]; Gaddy, 79 NY2d at 956- 957; Toure v Avis, 98 NY2d 345, 352 [2002]). The plaintiffs submitted a sworn affidavit of Ms. Greco's treating chiropractor who stated the degree to which the plaintiff's movement (range of motion) was restricted in her cervical and lumbar spines, and quantified those limitations (see Toure, 98 NY2d at 350; Ramos v Dekhtyar, 301 AD2d 428 [2003] [court found sufficient objective medical evidence to defeat summary judgment within a chiropractor's affidavit where the chiropractor determined there to be numeric limitations based on range of motion tests that were conducted by the chiropractor]; Rosado v Martinez, 289 AD2d 386 [2001]; Vitale v Lev Exp. [*6]Cab Corp., 273 AD2d 225 [2000] [quantified restricted ranges of motion measured by objective range of motion test was sufficient to defeat summary judgment]; see also, Meyer v Gallardo, 260 AD2d 556 [1999]; Lombardi v Columbo, 259 AD2d 524 [1999]; Yahya v Schwartz, 251 AD2d 498 [1998]; Cenat v Cutler, 251 AD2d 362 [1998]; Pareti v Giglietta, 221 AD2d 607 [1995]). Though Dr. Rubino's July 2005 test results of the plaintiff suggest an improved range of motion, plaintiff still exhibits a noticeable deficiency compared to the data associated with a normal range of motion. Additionally, Dr. Rubino adequately explains any gap in treatment, stating that he concluded treating the plaintiff in March 2004 "at which time [he] felt she had reached maximum medical improvement and that any further treatment would be only palliative in nature" (see Pommells v Perez, 4 NY3d 566, 577 [2005] [where a plaintiff's doctor stated that any further medical treatment would be "only palliative in nature, ... plaintiff's cessation of treatment was explained sufficiently to raise an issue of fact and survive summary judgment"]). This evidence is sufficient to create a triable issue of fact with regard to the plaintiff's allegation that she sustained a serious injury (see Vitale, 273 AD2d at 225; Ventura v Moritz, 255 AD2d 506 [1998]).

It is well settled that the role of the court in entertaining a summary judgment motion is to determine if bona fide issues of fact exist, not to resolve issues of credibility. Stated differently, the court's function in determining a motion for summary judgment is issue finding rather than issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (see Sillman, 3 NY2d at 404) Under all of the circumstances, there are triable issues of fact as to whether plaintiff sustained a "serious injury" within the meaning of the Insurance Law. Accordingly, defendant's motion is hereby denied.

This constitutes the decision and order of the Court.

Dated: March 22, 2006E N T E R,

____________________________

J. S. C.

Footnotes

Footnote 1: Mr. Greco, who was not seriously injured in the accident, brings, inter alia, a derivative claim to recover damages for the loss of consortium of his wife.