Baez v Jones

[*1] Baez v Jones 2006 NY Slip Op 51370(U) [12 Misc 3d 1182(A)] Decided on May 15, 2006 Supreme Court, Bronx County Salerno, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2006
Supreme Court, Bronx County

Cesar Baez and Efrain DeLeon, Plaintiffs,

against

Wade Jones and Jamal Thurmond, Defendants.



14915/03

George D. Salerno, J.

Defendants move for an order pursuant to CPLR 3212, dismissing plaintiffs' complaint contending plaintiff Baez [FN1] did not sustain a serious injury as defined by Insurance Law § 5102(d). [FN2] Plaintiff commenced this action to recover damages for personal injuries allegedly sustained by plaintiff in a motor vehicle accident that occurred on April 4, 2000.

Plaintiff's verified bill of particulars alleges that Baez sustained the following injuries:

a) Disc herniation at the C5-C6 and C6-C7, reversal normal cervical

curve. b) Disc herniation lumbosacral spine at the L4-L5 and straightening of normal lumbar curve consistent.c) Cervical and lumbosacral sprain, strain and radiculopathy; Post- concussion syndrome. [FN3]

Enacted in 1973, The Comprehensive Automobile Insurance Reparations Act, or "No Fault Law," mandates that drivers' insurance policies compensate injured parties for "basic economic loss" sustained in accidents within New York State, regardless of fault. However, to initiate a suit for additional damages against the other car's driver or owner [FN4] a party to an [*2]automobile accident must suffer "serious injury" pursuant to Insurance Law § 5102(d), which provides: "Serious injury" means 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.

Insurance Law § 5102(d) (McKinney 2000) (quotes in the original)

The Court of Appeals of New York has acknowledged that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries." Toure v. Avis, 98 NY2d 345, 350 (2002). Plaintiffs must furnish objective proof of injury, not merely subjective complaints, to satisfy the serious injury threshold of Insurance Law § 5102(d). However, to prevail on a motion for summary judgment, the defendant "bears the initial burden to present competent evidence that the plaintiff has no cause of action." Brown v. Achy, 9 AD3d 30, 31 (1st Dept. 2004).

To support their motion, defendants submit the affirmation of Dr. Philip Keats, an Orthopedic Physician who reviewed plaintiff's relevant medical records, in particular the MRI report of plaintiff's cervical spine dated April 18, 2000, and the MRI report of plaintiff's lumbar spine dated May 5, 2000. Dr. Keats performed a physical examination of plaintiff on November 11, 2004 (about four years after the accident). Dr. Keats found plaintiff's range of motion normal regarding plaintiff's cervical, thoracic, and lumbosacral spine. In his opinion plaintiff (Baez) demonstrated no disability, is capable of performing daily activities and is able to return to his occupation.

In addition, defendants submitted the affirmed report of Dr. Sharma, a board certified Neurologist and Psychiatrist. He examined plaintiff on October 25, 2004 and part of the history [*3]he recorded concerned plaintiff's physical therapy after the accident which lasted "for approximately two to three months." [FN5] Dr. Sharma's affirmed report [FN6] refers to his review of the MRI report dated April 18, 2000 which allegedly identified cervical disc herniations, and his review of the MRI report dated May 5, 2000 relating to plaintiff's lumbar disc herniation. No records were provided for review by Dr. Sharma regarding plaintiff's alleged medical treatment after the accident. According to Dr. Sharma, plaintiff can perform all of his normal daily activities, continue to work, walk normally and plaintiff demonstrated his ability to perform certain tasks without lack of coordination. Dr. Sharma opined that "the changes reported" (presumably by the radiologist who took plaintiff's MRI's) are representative of "pre-existing conditions" and plaintiff "reached pre-accident status." [FN7]

Plaintiff is employed as an assistant manager with a company that "develops film work." [FN8] After the accident occurred plaintiff continued to operate his motor vehicle, but soon after the accident he allegedly began experiencing neck pain and lower back pain causing him to go to a clinic for medical treatment. Plaintiff, although stating that he received therapy three (3) times a week, could not recall the name of the chiropractor or the names of doctors who treated him at "Amsterdam Medical". [FN9] Plaintiff testified that he was absent from work about one week.[FN10] When asked whether plaintiff was in possession of photographs depicting the damage to his vehicle, and although his vehicle was repaired, plaintiff's response was "I don't know". Plaintiff's chief complaints, at the time he was deposed, was neck pain and headaches. Other than indicating that he could only lift 40 or 50 pounds after the accident plaintiff failed to identify other activities that he was able to do before the accident which he cannot do since the accident [FN11] No therapy or treatment records were submitted by plaintiff.

Plaintiff's opposition is composed of the affirmed report of Dr.Craig Antell who is a osteopathic physician. Dr. Antell's report refers to a "psychiatric consultation" [FN12] of plaintiff that occurred on April 29, 2005. The accident that plaintiff claims is the cause of his injury took place [*4]on April 4, 2000, five years before his consultation. A fortiori, Dr. Antell's opinion which addresses the cause of plaintiff's alleged permanent injury is based solely on the history provided by plaintiff during his consultation, and his review of the MRI reports of a radiologist who performed the imaging studies shortly after the automobile accident. Dr. Antell did not review plaintiff's bill of particulars and other than the MRI reports, he did not review other medical records relative to plaintiff's treatment which allegedly occurred after the accident.

The issue presented for review by the Court of Appeals in People v. Sugden, 35 NY2d 453, 323 NE2d 169, 363 NYS2d 923 (1974), was whether an expert may base his opinion on an out of court written statement of a witness. The Court held that the expert could base his opinion on material not in evidence provided the information is accepted by experts in the particular field. This issue was again revisited in Borden v. Brady, 92 AD2d 983, 461 NYS2d 497(3d Dept. 1983) where the Court held that it was an error to permit plaintiff's medical expert to testify on the issue regarding the permanency of plaintiff's condition based on out of Court material. Shortly after the Borden opinion, supra , the Court of Appeals in Hambsch v. New York City Transit Authority, 63 NY2d 723, 469 NE2d 516, 480 NYS2d 195 (1984), held that the opinion in evidence must be based on facts in the record or personally known to the witness (see Wagiman v. Bradshaw, 292 AD2d 84, 739 NYS2d 421 [2d Dept. 2001] ); Deluca v. Liu, 297 AD2d 307, 746 NYS2d 183 [2d Dept. 2002] ). Here Dr. Antell's opinion regarding the permanency of plaintiff's injury is not premised on his review of plaintiff's medical records except the MRI reports on his treatment of plaintiff. Dr. Antell never reviewed the MRI films taken of plaintiff's cervical and lumbar spine and although he states that he reviewed "objective medical records" none are mentioned or submitted. He also noted that "an EMG would be helpful in further evaluating" plaintiff's injuries.

It is the report rendered by Dr. Steven Brownstein, a radiologist, regarding plaintiff's cervical and lumbar herniations that Dr.Antell reviewed to reach his conclusion that plaintiff's condition is permanent. Dr. Brownstein who [FN13] states in his affidavit that he reviewed "MRI film" of plaintiff's cervical spine which according to Dr. Brownstein evidences cervical herniations. Furthermore, Dr. Brownstein also states that he reviewed plaintiff's MRI and in his opinion there is present a focal disc herniation at L4-L5. This portion of his opinion is unassailable, however the issue here is not his findings regarding disc herniations but his conclusion that plaintiff's herniations are a direct result of an automobile accident that occurred on April 4, 2000. Dr. Brownstein has no information regarding plaintiff's history and his opinion is devoid of his review or reliance upon plaintiff's medical history or medical records. In sum Dr. Brownstein's affidavit to the extent that he attributes plaintiff's herniations to the April 4 , 2000 accident is without medical support.

In addition, no acceptable explanation is offered by plaintiff regarding the cessation of treatment for over four years after the accident. Dr. Antell's self- serving statement regarding plaintiff's cessation of treatment clearly militates against his contention that the plaintiff sustained a serious injury. (see Pommells v. Perez, 4 NY3d 566, 830 NE2d 278, 797 NYS2d 380 (2005); Li H. Li v. Woo Sung Yun, 2006 N.Y.Slip. Op. 2170, 2006 NY App. Div. Lexis 3496, [2nd Dept. 2006]; Barzey v. Clarke, 2006 NY Slip. Op. 2148; 2006 NY App. Div. Lexis 3476 [*5][2d Dept.. 2006] ).

The affirmed report of Dr. Antell did not explain the lengthy gap in treatment and as the Court held in Li H. Li v. Woo Sung Yun, supra , the absence of such evidence is insufficient to raise a triable issue of fact as to whether plaintiff sustained a serious injury.

Accordingly, defendants' motion is granted and this case is dismissed.

This constitutes the decision and order of this Court.

Dated: May 15, 2006

J.S.C. Footnotes

Footnote 1: Plaintiff De Leon's claim was dismissed.

Footnote 2: Insurance Law § 5104(a) regulates actions for damages incurred in automobile accidents by limiting the right to recover for non-economic loss to parties who suffer "serious injury" as defined by § 5102.

Footnote 3: Plaintiff's bill of particulars, Defendants Exhibit "C".

Footnote 4: Insurance Law § 5102(a) (McKinney 2000), in relevant part, provides: "Basic economic loss" means, up to fifty thousand dollars per person of the following combined items...: (1) All necessary expenses incurred for: (i) medical, hospital..., surgical, nursing dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation;....and (iv) any other professional health services; all without limitation as to time, provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury. (2) Loss of earnings from work which the person would have performed had he not been injured...up to two thousand dollars per month for not more than three years from the date of the accident causing the injury.

Footnote 5: Defendants' Exhibit "E".

Footnote 6: Defendants' Exhibit "F".

Footnote 7:id.

Footnote 8: Defendants' Exhibit "D", p. 6.

Footnote 9: id. p. 29.

Footnote 10: id. p. 30.

Footnote 11: id. p. 34. Plaintiff's deposition was held on September 14, 2004. Defendants' Exhibit "D".

Footnote 12: Plaintiff's Exhibit "1".

Footnote 13: Plaintiff's Exhibit "3".