Newman v Law Off. of Robert P. Tusa

[*1] Newman v Law Off. of Robert P. Tusa 2006 NY Slip Op 50983(U) [12 Misc 3d 1160(A)] Decided on May 22, 2006 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2006
Supreme Court, Richmond County

Louise Newman, Plaintiff,

against

Law Office of Robert P. Tusa, As Administrator for the Estate of Maurice Grosso, Defendant.



11508/2002

Judith N. McMahon, J.

On May 5, 1999, the plaintiff's vehicle was struck in the rear by an automobile owned and operated by defendant Maurice Grosso. In June, 2002, the plaintiff commenced this action and issue was joined by service of an answer by the defendant. The issue of liability was conceded by the defendant. Thereafter, on May 10, 2006, a non-jury trial was conducted as to the issue of damages only, and at its conclusion the defendant moved pursuant to CPLR 4401 to dismiss the complaint for failure to establish a prima facie case in that the plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102(d).

At the trial, plaintiff Louise Newman testified that she received massage and heat therapy from May 11, 1999 through October 12, 1999, from Dr. Anna Samadi at A & S Medical Center. The plaintiff was also seen by a neurologist, Dr. Yelena Ilina, who ordered an EMG. On May 21, 1999, the plaintiff had an MRI which indicated a disc bulge at C4-C5. The plaintiff testified that she stopped treatment because of the discontinuance of no-fault benefits and her belief that nothing else could be done for her pain. The plaintiff also testified that she now requires assistance with her daily housekeeping chores such as the laundry and vacuuming, and no longer plays softball.

Dr. Jorge Rivero testified that he examined the plaintiff on March 14, 2006, but he had never seen her prior to that date. Dr. Rivero also reviewed the plaintiff's MRI films and EMG. Based on his examination of the plaintiff, he opined that the plaintiff had a permanent partial disability of the use of her cervical spine of 7% and a permanent partial disability of the use of her lumbar spine of 8%.

Initially, the plaintiff failed to adequately explain the over six-year gap in medical treatment. Although she asserted that the gap in treatment was due to a lack of medical insurance and her subjective belief that there was nothing else that could be done for her, she failed to submit any corroborative proof to substantiate these bare allegations. Neither the plaintiff's treating physicians nor her expert at trial mentioned that further treatment would not be beneficial and/or that the plaintiff had attained the maximum potential in terms of therapy (see, [*2]McNamara v. Wood, 19 AD3d 921 [3d Dept. 2005]; Thompson v. Abassi, 15 AD3d 95 [1st Dept. 2005]). Thus, the explanation offered by the plaintiff was legally insufficient to explain the gap in treatment (see, Pommells v. Perez, 4 NY3d 566 [2005]; Neugebauer v. Gill, 19 AD3d 567 [2d Dept. 2005].

Even if the plaintiff's explanation was sufficient to explain the gap in treatment, the plaintiff failed to establish that she suffered a serious injury as defined in Insurance Law § 5102(d). The expert's conclusion that the plaintiff sustained a 7% loss of use of her cervical spine and 8% loss of her lumbar spine established neither a significant nor consequential injury (see, Ibragimov v. Hutchins, 8 AD3d 235 [2d Dept. 2004]; Paczhowski v. Santiago, 5 AD3d 575 [2d Dept. 2004]; Trotter v. Hart, 285 AD2d 772 [3d Dept. 2001]). Moreover, neither the plaintiff's nor her expert's testimony established that the plaintiff was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the accident (see, Ibragimov v. Hutchins, 8 AD3d 235, supra; Ramos v. Incorporated Village of Freeport, 6 AD3d 687 [2d Dept. 2004). Accordingly, it is

ORDERED that the defendant's motion pursuant to CPLR 4401 on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted and the court directs judgment for the defendant.

The Clerk is directed to enter judgment accordingly.

E N T E R,

Dated: May 22, 2006

J.S.C.

OCA e-submission: no Judge E-Mail