Moreta v Hamlin

[*1] Moreta v Hamlin 2006 NY Slip Op 51704(U) [13 Misc 3d 1206(A)] Decided on April 7, 2006 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, Bronx County

Audon Moreta and Juliana Fernandez, Plaintiffs

against

Christopher M. Hamlin, Ford Credit Titling Trust, Jem Sanitation of NJ Inc., and Kareem F. Stoute, Defendants



16592/2003



For Plaintiff Fernandez

Harlan Budin Esq.

Budin, Reisman, Kupferberg & Bernstein LLP

112 Madison Avenue, New York, NY 10016

For Defendants Hamlin, Ford Titling Trust, and JEM Sanitation of NJ Inc.

Jeffrey D. Fippinger Esq.

White & McSpedon, P.C.

875 6th Avenue, New York, NY 10001

For Defendant Stoute

Richard E. Weber Esq.

Maloof, Lebowitz, Connahan & Oleske, PA

299 Broadway, New York, NY 10007

Lucy Billings, J.

I.BACKGROUND

Plaintiffs sue to recover for injuries sustained October 3, 2002, in a collision between a vehicle owned by defendants JEM Sanitation of NJ Inc. and Ford Motor Credit Titling Trust and operated by defendant Hamlin and a vehicle owned and operated by defendant Stoute, in which plaintiff Fernandez rode. Defendants Hamlin, Ford Motor Credit, and JEM Sanitation move, and defendant Stoute cross-moves, for summary judgment dismissing plaintiff Fernandez's complaint, C.P.L.R. § 3212(b), on the ground that Fernandez has not sustained a "serious injury" entitling her to recover for "non-economic loss." NY Ins. Law §§ 5102(d), 5104(a). After oral argument and the opportunity for subsequent submissions, the court denies defendants' motion and cross-motion for the reasons explained below.

II.DEFENDANTS' EVIDENCE

Jerome M. Block, M.D., who examined plaintiff January 11, 2005, attests to a full range of motion in her cervical and lumbar spine, but found a 20% restriction in elevation and rotation of her right shoulder. While evidence that these limitations result from a degenerative condition [*2]could demonstrate that her shoulder injury did not result from a collision, Mullings v. Huntwork, __ AD3d __, 2006 WL 328373 at *1 (1st Dep't 2006); Giraldo v. Mandanici, 24 AD3d 419, 420 (2d Dep't 2005), neither an inadmissible pathology report indicating removal of "cartilage with degenerative changes" from plaintiff's right shoulder, nor Dr. Block's report establishes a degenerative condition. Aff. of Jeffrey D. Fippinger, Ex. H at 11.

Apart from plaintiff's shoulder injury, defendants demonstrate through Dr. Block's examination that plaintiff did not sustain a permanent or significant limitation of functioning in her cervical or lumbar spine. Thompson v. Abbasi, 15 AD3d 95, 96 (1st Dep't 2005); Bent v. Jackson, 15 AD3d 46, 47 (1st Dep't 2005); Brown v. Achy, 9 AD3d 30, 31 (1st Dep't 2004). Plaintiff's admission at her deposition that she was confined to her home for only three weeks after the collision also establishes that she did not sustain any medically determined injury or impairment that prevented her from performing substantially all her daily activities for 90 of the 180 days following the collision. Copeland v. Kasalica, 6 AD3d 253, 254 (1st Dep't 2004); Nelson v. Distant, 308 AD2d 338, 339 (1st Dep't 2003). Nonetheless, even assuming that Dr. Block's findings of a 20% restriction in plaintiff's shoulder elevation and rotation also do not rise to the level of a significant limitation, plaintiff rebuts defendants' evidence of no significant limitation.

III.PLAINTIFF'S REBUTTAL

Plaintiff presents the medical records of her treating physicians, Naum S. Meyerovich, M.D., and Irving Liebman, M.D., certified as business records. C.P.L.R. § 3122-a. Upon examining plaintiff October 4, 2002, Dr. Meyerovich, comparing plaintiff's range of motion to specified normal ranges, found at least a 50% restriction in abduction, flexion, and internal rotation of her right shoulder and limitations from 16% to 40% in various planes of her cervical spine range of motion. Dr. Meyerovich found that magnetic resonance imaging (MRI) revealed both a partial tendon tear in plaintiff' right shoulder and bulging discs at the C4-C5 and C5-C6 levels and that an electromyelogram showed radiculopathy at the C6-C7 level. Finally, Dr. Meyerovich concluded that plaintiff's injuries were directly caused by the collision and permanent.

Dr. Liebman's examination of plaintiff December 5, 2002, further found signs of impingement in her right shoulder and a 25% restriction of motion in her cervical spine. Dr. Liebman performed arthroscopic shoulder surgery on plaintiff December 9, 2002. His examination of her May 25, 2005, found that she still had restrictions in motion of 15 degrees in abduction and 10 degrees in external rotation of her right shoulder and 20 degrees in extension and 15 degrees in flexion of her cervical spine. He reiterated that plaintiff's injuries arose from the collision and were permanent. Although this later report indicated December 3, 2002, as plaintiff's injury date, the court considers this date a mere typographical or transcription error and disregards it in light of plaintiff's unambiguous sworn statements that she was injured October 3, 2002. Muniz v. Selsky, 301 AD2d 769, 770 (3d Dep't 2003). See Behrens v. City of New York, 279 AD2d 407, 408 (1st Dep't 2001).

A.Omission of Normal Ranges

Dr. Liebman, on whom plaintiff relies for his assessment more recently, in 2005, as well as earlier, fails to specify the normal ranges of motion in her shoulder and cervical spine. This omission raises the previously unaddressed issue whether an assessment of plaintiff's restrictions in motion by one of her physicians, without specifying the normal ranges, considered with the records by another of her physicians, which do so specify, may defeat summary judgment on lack of serious injury. An examining physician's range of motion assessment without specifying the normal ranges, considered with a treating physician's report that does so specify, may demonstrate lack of serious injury to support summary judgment. Watt v. Francis, 16 AD3d 240, 241 (1st Dep't 2005). The court discerns no meaningful distinction between piecing together admissible medical evidence from different sources, an examining and a treating physician, to establish lack of serious injury, as a matter of law, and doing so from two treating physicians to raise factual issues regarding serious injury. Moreover, a party opposing summary judgment [*3]may even rely on inadmissible evidence, as long as the proponent of summary judgment has relied on that evidence. Thompson v. Abbasi, 15 AD3d at 97; Brown v. Achy, 9 AD3d at 32; Toledo v. A.P.O.W. Auto Repair/Towing, 307 AD2d 233, 234 (1st Dep't 2003). Here, both sources of evidence on which plaintiff relies are in admissible form.

On this basis, considering the findings of both Dr. Liebman and Dr. Meyerovich, they raise factual issues regarding serious injury with the significant restrictions on motion in plaintiff's cervical spine alone, Lantigua v. Williams, 305 AD2d 286 (1st Dep't 2003); Pagan v. Gondola Cab Corp., 235 AD2d 251, 252 (1st Dep't 1997), but even more so when considered with the restrictions on motion in her right shoulder. O'Sullivan v. Atrium Bus Co., 246 AD2d 418, 419 (1st Dep't 1998). See Aguilar v. N.Y.C. Water Works, 298 AD2d 245 (1st Dep't 2002); Galati v. Brice, 290 AD2d 530, 531 (1st Dep't 2002); Adetunji v. U-Haul Co. of Wis., 250 AD2d 483 (1st Dep't 1998). The findings of plaintiff's radiologists upon reviewing the MRI films of plaintiff's cervical spine, showing disc bulges at different levels, also provide an objective basis for the limitations in her cervical spine. McNair v. Lee, 24 AD3d 159, 160 (1st Dep't 2005); Rosario v. Universal Truck & Trailer Serv., 7 AD3d at 309; Shinn v. Catanzaro, 1 AD3d at 198. See Nix v. Yang Gao Xiang, 19 AD3d 227 (1st Dep't 2005); Webb v. Johnson, 13 AD3d 54 (1st Dep't 2004). Dr. Meyerovich further found that plaintiff had difficulty performing daily activities due to her injuries and prescribed physical therapy. B.Treatment Gap

For the first time in reply, moving defendants point to a gap in plaintiff's treatment from January 2003 to May 2005. An unexplained treatment gap is fatal to a serious injury claim. Pommells v. Perez, 4 NY3d 566, 574 (2005); Baez v. Rahamatali, 24 AD3d 256 (1st Dep't 2005); Agramonte v. Marvin, 22 AD3d 322 (1st Dep't 2005); Colon v. Kempner, 20 AD3d 372, 374 (1st Dep't 2005). Here, however, plaintiff's evidence establishes that Dr. Liebman referred plaintiff back to Dr. Meyerovich after the surgery. In addition, plaintiff attests in her affidavit of June 28, 2005, that she continued physical therapy for a month after the surgery, but was forced to discontinue therapy when her insurance benefits terminated. Black v. Robinson, 305 AD2d 438, 439-40 (2d Dep't 2003). Thus, even if the court considers this issue first raised in reply, McNair v. Lee, 24 AD3d at 160, on the premise that the treatment gap may not have been evident until plaintiff presented her rebuttal, Home Ins. Co. v. Leprino Foods Co., 7 AD3d 471 (1st Dep't 2004); Gaud v. Markham, 307 AD2d 845, 846 (1st Dep't 2003); NYCTL 1996-1 Trust v. Railroad Maintenance Corp., 266 AD2d 39, 40 (1st Dep't 1999), plaintiff sufficiently explains the period between January 2003 and her May 2005 visit to Dr. Liebman. Sepulveda v. Reyes, 19 AD3d 297 (1st Dep't 2005). See Kelsol Diamond Co. v. Stuart Lerner, Inc., 286 AD2d 586, 587 (1st Dep't 2001).

IV.CONCLUSION

In sum, even if defendants met their burden of demonstrating that plaintiff did not sustain a serious injury from the collision October 3, 2002, plaintiff's evidence raises factual issues requiring a trial. Therefore the court denies defendants' motion and cross-motion for summary judgment against plaintiff Fernandez. C.P.L.R. § 3212(b).

DATED: April 7, 2006

_____________________________

LUCY BILLINGS, J.S.C.