Alfalahi v Neoon Cab Corp.

[*1] Alfalahi v Neoon Cab Corp. 2006 NY Slip Op 52120(U) [13 Misc 3d 1234(A)] Decided on June 26, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 26, 2006
Supreme Court, Bronx County

Ahmed Alfalahi, Plaintiff

against

Neoon Cab Corp. and Pablo Guerrero, Defendants



23874/2004



APPEARANCES:

For Plaintiff

Steven Goldstein Esq.

Goldstein & McGowan, L.L.P.

280 Madison Avenue, New York, NY 10016

For Defendants

Robert D. Grace Esq.

Baker, McEvoy, Morrissey & Moskovits, P.C.

333 West 33rd Street, New York NY 10001

Lucy Billings, J.

Plaintiff sues to recover for injuries he sustained August 2, 2004, when a vehicle owned by defendant Neoon Cab Corp. and driven by defendant Guerrero collided with a vehicle plaintiff was driving. Defendants move for summary judgment dismissing the complaint, C.P.L.R. § 3212(b), on the ground that plaintiff has not sustained a "serious injury" entitling him to recover for "non-economic loss." NY Ins. Law §§ 5102(d), 5104(a). For the reasons explained below, the court denies defendants' motion except to the limited extent set forth. C.P.L.R. § 3212(b) and (e).

I.DEFENDANTS' EVIDENCE

Defendants' physicians, Igor Smelyansky M.D. and Marvin Winell M.D., based on their examinations of plaintiff and review of his diagnostic studies and medical records, found no neurological abnormalities in his cervical and lumbar spine. Defendants thus demonstrate that he did not sustain a permanent or significant limitation of functioning in his 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). Since Dr. Smelyansky and Dr. Winell both found a full range of motion in plaintiff's cervical and lumbar spine, their failure to comment on magnetic resonance imaging (MRI) reports of his cervical and lumbar spine does not undermine the physicians' conclusions that he did not sustain a serious injury. Servones v. Toribio, 20 AD3d 330 (1st Dep't 2005); Meely v. 4 G's Truck Renting Co., Inc., 16 AD3d 26, 30 (1st Dep't 2005).

Although defendants' examining physicians reviewed an MRI report of plaintiff's left knee, neither physician examined plaintiff's left knee. Defendants thus fail to demonstrate the absence of a serious injury from a left knee impairment. Offman v. Singh, 27 AD3d 284, 285 [*2](1st Dep't 2006); Nix v. Yang Gao Xiang, 19 AD3d 227 (1st Dep't 2005). While Dr. Smelyansky reported and plaintiff admitted in his deposition that he injured his neck and back in 2002, Dr. Smelyansky, having failed to consider or present any medical evidence relating to that injury, lacks any basis to conclude that the prior injury caused plaintiff's current impairments. Offman v. Singh, 27 AD3d at 285; Webb v. Johnson, 13 AD3d 54 (1st Dep't 2004). See Montgomery v. Pena, 19 AD3d 288, 289 (1st Dep't 2005).

Plaintiff further admitted in his deposition, however, that he lost only one week of work after the August 2004 collision. This evidence demonstrates that plaintiff did not sustain an injury or impairment that prevented him from performing substantially all his daily activities for 90 of the 180 days following the collision. Thompson v. Abbasi, 15 AD3d at 101; Flores v. Singh, 13 AD3d 203, 204 (1st Dep't 2004); Copeland v. Kasalica, 6 AD3d 253, 254 (1st Dep't 2004); Nelson v. Distant, 308 AD2d 338, 339 (1st Dep't 2003).

II.PLAINTIFF'S REBUTTAL

Humphrey Iroku M.D. first examined plaintiff August 3, 2004, and found restrictions on range of motion of 14% in his left knee, from 22% to 35% in various planes in his cervical spine, and from 33% to 66% in various planes in his lumbar spine. Dr. Iroku prescribed physical therapy, acupuncture, and chiropractic treatment. His examination of plaintiff September 13, 2005, revealed limitations of motion in the various planes in his cervical spine from 18.7% to 40% and in his lumbar spine from 27.7% to 37.5%. Steven Brownstein M.D. found that MRI films taken August 27 and September 13, 2004, revealed a medial meniscal tear in plaintiff's left knee and disc herniations at levels C5-C6 and L5-S1 in plaintiff's cervical and lumbar spine. Dr. Iroku concluded that plaintiff sustained permanent injuries as a result of the August 2004 collision.

These combined findings raise factual issues whether plaintiff's spinal and knee impairments constitute a serious injury. McNair v. Lee, 24 AD3d 159, 160 (1st Dep't 2005); Ferguson v. Budget Rent-A-Car, 21 AD3d 730, 731 (1st Dep't 2005); Seda v. Khabrane, 16 AD3d 118 (1st Dep't 2005); Rosario v. Universal Truck & Trailer Serv., 7 AD3d 306, 309 (1st Dep't 2004). See Sow v. Arias, 21 AD3d 317, 318 (1st Dep't 2005). Since defendants failed to show that his current impairments were caused by his injury in 2002, Dr. Iroku's similar failure to address the prior injury does not render his opinion speculative regarding the causal relationship of the August 2004 collision to plaintiff's current impairments. Offman v. Singh, 27 AD3d at 285; Webb v. Johnson, 13 AD3d 54. See Montgomery v. Pena, 19 AD3d at 290.

Finally, although Dr. Iroku ceased treating plaintiff in December 2004, Dr. Iroku explained that plaintiff had reached maximum medical improvement at that point and would no longer benefit from further treatment, so Dr. Iroku advised plaintiff to continue home exercises. Dr. Iroku thus provides a sufficient explanation for the treatment gap or cessation after December 2004 until his September 2005 examination or afterward. Toure v. Avis Rent A Car Sys., 98 NY2d 345, 355 (2002); Turner-Brewster v. Arce, 17 AD3d 189, 190 (1st Dep't 2005); Brown v. Achy, 9 AD3d at 34-35. Plaintiff's testimony that he continued massage therapy at another facility, despite Dr. Iroku's opinion, is inconsequential.

III.CONCLUSION

In sum, by failing to show the absence of a serious injury from plaintiff's knee impairment, defendants did not meet their initial burden. Nor did they show that a 2002 injury caused plaintiff's current impairments. Defendants did, however, meet their burden to show the absence of an impairment preventing plaintiff from performing his usual activities for 90 of the 180 days following the collision. Plaintiff, moreover, raised factual issues regarding only significant or permanent consequential limitations. Therefore the court grants defendants' motion for summary judgment only to the extent of dismissing any claim of serious injury under the 90 out of 180 days category, but otherwise denies defendants' motion. C.P.L.R. § 3212(b) and (e); Ferguson v. Budget Rent-A-Car, 21 AD3d at 731. See Toussaint v. Claudio, 23 AD3d 268, 269 (1st Dep't 2005). [*3]

DATED: June 26, 2006

_____________________________

LUCY BILLINGS, J.S.C.