Pinkhasov v Olivieri
Annotate this CaseDecided on April 4, 2006
Supreme Court, Kings County
Vyachelslav Pinkhasov, RAISA MISHPATOVA and SVETLANA PINKHASOVA, AN INFANT BY HER FATHER AND NATURAL GUARDIAN, VYACHELSLAV PINKHASOV, Plaintiffs,
against
Wilbur Olivieri and ORLANDO NEGRON, Defendants.
4767/2002
Laura L. Jacobson, J.
Defendants move for an order pursuant to CPLR section 3212, for summary judgment due to plaintiff's failure to meet the threshold limits set by New York State Insurance Law sections 5102 and 5104. In an affirmation in support, plaintiff Vyachelslav Pinkhasova requests that he be granted summary judgment against plaintiffs Raisa Mishpatova and Svetlana Pinkhasova on the counterclaim. On April 4, 2006, the court was informed that the claims of plaintiffs Mishpatova and Pinkhasova have been settled. Consequently, the only remaining issue is defendants' allegation that plaintiff Vyachelslav Pinkhasov did not sustain a "serious injury" as a result of the motor vehicle accident.
This action stems from a motor vehicle accident that occurred on July 2, 2001. Plaintiffs allege that the vehicle operated by defendant Orlando Negron and owned by defendant Wilbur Olivieri collided with plaintiff's vehicle on 63rd Road and 98th Street in Queens, New York.
Plaintiff Vyachelslav Pinkhasov
Plaintiffs allege in their bill of particulars that as a result of the accident, plaintiff Vyachelslav Pinkhasov sustained the following injuries: bulging discs at L4-5 and L5-S1; cervical straightening; cervical radiculopathy; cervical sprain/strain; lumbosacral radiculopathy; lumbar sprain/strain; depression; headaches; anxiety; fear and emotional upset and shock.
In support of the motion, defendants submitted a duly affirmed medical report completed by orthopedist William J. Kulak, M.D. who examined plaintiff on February 16, 2005. Dr. Kulak reported that plaintiff stated that he had suffered no trauma prior to or subsequent to the motor vehicle accident. He noted that plaintiff was a 46 year old barber who had resumed work. Dr. Kulak performed range of motion tests on plaintiff and although he quantified some of his results, he failed to compare them to normal standards. Dr. Kulak noted that he reviewed an x-ray of plaintiff's lumbosacral spine taken on the date of the accident. He stated that the x-ray report of plaintiff's lumbosacral spine was negative, indicating pre-existing congenital anomalies of sacralization of L5 and pre-existing osteopenia indicating disuse of the lower spine before the accident. He noted that the multiple pre-existing findings can produce symptoms absent any injury. He also reported that he reviewed MRI's of plaintiff's cervical spine on May 18, 2001 and lower back dated May 24, 2001 which were taken approximately six weeks before the accident. He found that the MRI of plaintiff's spine revealed multiple levels of degenerative disc disease and disc herniations all predating the accident. He stated that a May 24, 2001 MRI of plaintiff's right shoulder revealed pre-existing subacromial narrowing which can produce symptoms to the right shoulder girdle area and cervicodorsal spine prior to the accident. In Dr. Kulak's opinion, although plaintiff had pre-existing symptoms, plaintiff had no disability and no permanency as a result of the July 7, 2001 accident.
Defendants also submitted the affirmed medical report of neurologist Daniel J. Feuer, M.D. dated January 25, 2005. He stated that at the time of the examination, plaintiff complained of recurrent headaches and low back pain. He reported that the plaintiff denied any previous history of trauma. However, Dr. Feuer noted that plaintiff's medical records revealed a medical consultation by Dr. Riaz describing the accident of "July 2, 2000". He also reported that plaintiff's medical records also included MRI testing of plaintiff's cervical spine, lumbar spine and brain dated May 18, 2001 through May 24, 2001. Dr. Feuer performed range of motion tests on plaintiff's cervical spine, thoracic spine and lumbosacral spine but he failed to quantify his results. Dr. Feuer's diagnosis was a normal neurological examination and he found no disability or permanency.
In opposition to the motion, plaintiff submitted an affidavit in which he stated that he had never injured his neck or back before the accident. Plaintiff alleges that as a result of the impact from the accident he experienced pain in his neck and lower back Plaintiff asserts that he was taken from the accident by ambulance to the hospital where he was examined and x-rays were taken. He stated that the next day he sought additional medical care and he was examined by Dr. Riaz who performed various tests. He stated that he received three months of physical therapy and [*2]treatment following the accident. He contends that he stopped treatment because his no-fault benefits ended and he could not afford to pay doctor's bills out of his own pocket. Plaintiff also contends that be stopped treatment because he believed that further treatment would be useless. Plaintiff alleges that since the time of this accident, he has not re-injured his neck or back.
Plaintiff also submitted the duly affirmed medical report of neurologist Aric Hausknecht, M.D.,
who examined plaintiff on October 18, 2005. He reported that at the time of the examination, plaintiff complained of lower back pain associated with numbness and tingling in his feet. Dr. Hausknecht noted that plaintiff's past medical history was negative and plaintiff denied any other history of back problems. He stated that plaintiff was diagnosed with a prolactinoma and he has received nonoperative care. Dr. Hausknecht performed range of motion tests on plaintiff's lumbar spine. Dr. Hausknecht found limitation in plaintiff's forward flexion of 60 degrees while normal is 90 degrees. He stated that he reviewed plaintiff's MRI of the lumbar spine taken on August 6, 2001, and he agreed with Dr. Solomon's finding of a disc bulge at L4-5 and L5-S1. Dr. Hausknecht's impression was lumbosacral derangement with L4-5 and L5-S1 disc bulges and associated readiculopathy. Dr. Hausknecht found plaintiff to be a reliable historian. He stated that plaintiff had no prior history of lower back problems. In Dr. Hauskecht's opinion, with a reasonable degree of medical certainty, plaintiff's injuries were causally related to the motor vehicle accident and they were permanent in nature. He stated that plaintiff had reached maximal medical improvement and his prognosis is poor for any further recovery. He stated that plaintiff is an appropriate candidate for epidural steroid injection and for L5-S1 discectomy.
The legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries (Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345, 350 [2002]). While it is clear that the Legislature intended to allow plaintiffs to recover for non-economic injuries in appropriate cases, it had also intended that the court first determine whether or not a prima facie case of serious injury has been established which would permit a plaintiff to maintain a common-law cause of action in tort.( Licari v. Eliot, 57 NY2d 230, 237 [1982]). As such, the courts have required objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold (Toure v. Avis Rent A Car Systems, Inc., supra). Defendants' medical reports which fail to quantify some results or to compare those results to normal standards are insufficient to make a prima facie showing of entitlement to summary judgment as a matter of law (see Qu v. Doshna, 12 AD3d 578 [2nd Dept. 2004]). Nevertheless, defendants made a prima facie showing based upon defendants' medical experts' allegation that plaintiff's condition is the result of a degenerative process or a pre-existing condition and not causally related to the motor vehicle accident (see Meeley v. 4 G's Truck Renting Co., Inc., 16 AD3d 26 [2nd Det. 2005]). However, plaintiff's medical expert's findings based on objective evidence including MRI's, tests and reports, raises issues of fact as to whether the plaintiff sustained serious injury with the meaning of the New York State Insurance Law (see Toure v. Avis Rent A Car, supra). Furthermore, the parties conflicting medical expert affidavits create material issues of fact (see Garcia v. Long Island MTA, 2 AD3d 675 [2nd Dept. 2003]). Additionally, plaintiff has provided a satisfactory explanation for the gap in treatment of his injuries (see Williams v. [*3]New York City Trans. Auth., 12 AD3d 365 [2nd Dept. 2003]).
Accordingly, defendants' motion for summary judgment is denied as to plaintiff Vyachelslav Pinkhasov and is moot as to plaintiffs Raisa Mishpatova and Svetlana Pinkhasova..
This constitutes the decision and order of the court.
ENTER:
LAURA L. JACOBSON, JSC
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