Bonilla v Romero

[*1] Bonilla v Romero 2006 NY Slip Op 52526(U) [14 Misc 3d 1213(A)] Decided on November 9, 2006 Supreme Court, Suffolk County Jones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 23, 2007; it will not be published in the printed Official Reports.

Decided on November 9, 2006
Supreme Court, Suffolk County

Maria Bonilla, Plaintiff,

against

Santos E. Romero, Jose Amaya-Romero and Manuel Bonilla, Defendants.



003185/2004



Suris & Associates, PC

By: Raymond J. Suris, Esq.

Attys. for Plaintiff

999 Walt Whitman Road, Suite 201

Melville, NY 11747

Law Offices of Frank J. Laurino

By: Thomas R. Craven, Jr., Esq.

Attys. for Defendants Santos E. Romero & Jose Amaya-Romero

999 Stewart Avenue

Bethpage, NY 11714

Hobbes & Tonetti, Esqs.

By: John W. Hobbes, Esq.

Attys. for Defendant Manuel Bonilla

739 East Main Street

Riverhead, NY 11901

John J.J. Jones, J.

It is ORDERED that this motion by defendant, Manuel Bonilla, and the cross-motion by [*2]defendants, Santos E. Romero and José Amaya-Romero, for an order granting summary judgment dismissing the complaint on the ground that the plaintiff, Maria Bonilla, did not sustain a "serious injury" within the meaning of NY Insurance Law § 5102(d) are granted and the complaint is hereby dismissed.

Plaintiff commenced this action to recover damages for personal injuries allegedly sustained on December 29, 2001 when the vehicle in which she was a passenger was involved in an accident. Plaintiff was initially treated and released in the emergency room, and she thereafter sought chiropractic care. It is alleged in the bill of particulars that as a result of the accident, plaintiff sustained a right paracentral disc herniation with impingement on the dura at C5/C6, and other soft tissue injuries.

Movant submitted the report of an orthopedist who examined plaintiff on November 14, 2005, at which time there was no reported tenderness on palpation of the cervical spine and no spasm. Range of motion testing was 45/45 degrees in extension, 45/45 in flexion, 80/80 degrees bilaterally in rotation and 45/45 degrees bilaterally in lateral flexion. Pinprick sensation and motor strength of the upper extremities were normal, and Tinel's sign was negative. Range of motion testing of the lumbar spine was full in all planes, and straight leg raising was full bilaterally with no complaints of pain. Range of motion testing of both shoulders was also full, with negative rotator cuff signs and negative impingement signs. Examination of the left elbow revealed full range of motion, ulnar deviation was normal, Tinel's sign and Phalen's test were negative. The doctor concluded that there were no objective signs of disability and no need for orthopedic care. Defendant also submitted the report of a radiologist who reviewed the films of an MRI of plaintiff's cervical spine which was taken on February 1, 2002. In his opinion, the films showed no compromise of the anterior space between the thecal sac and the posterior longitudinal ligament, normal signal intensity of the discs, no protrusion or herniated disc extending to or impinging upon the thecal sac and no contour deformities suggestive of a disc bulge. He concluded that there was no MRI evidence of asymmetry of the paraspinal musculature, no evidence of spasm or contusion, and no evidence of disc bulge, herniation or protrusion.

In order to effectuate the purpose of no-fault legislation to reduce litigation, a court is required to decide, in the first instant, whether a plaintiff has made out a prima facie case of "serious injury" sufficient to satisfy the statutory requirements (Licari v Elliott, 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088 [1982]; Brown v Stark, 205 AD2d 725, 613 NYS2d 705 [2d Dept 1994]). If it is found that the injury sustained does not fit within the definition of "serious injury" under Insurance Law § 5102(d), then the plaintiff has no judicial remedy and the action must be dismissed (Licari v Elliott, supra , at 57 NY2d 238; Velez v Cohan, 203 AD2d 156, 610 NYS2d 257 [1st Dept 1994]). A "serious injury" is defined as 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 constitutes such person's usual and [*3]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]). Here, the defendants met their initial burden of establishing, as a matter of law, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see McCauley v Ross, 298 AD2d 506, 748 NYS2d 409 [2d Dept 2002]; see also McKinney v Lane, 288 AD2d 274, 733 NYS2d 456 [2d Dept 2001], citing Gaddy v Eyler, 79 NY2d 955, 591 NE2d 1176, 582 NYS2d 990; Licari v Elliott, 57 NY2d 230, 441 NE2d 1088, 455 NYS2d 570).

In opposition to the motion and cross-motion, plaintiff submitted numerous medical records, including the affirmation of plaintiff's treating chiropractor, which was

unsworn and not in admissible form (see CPLR 2106; see also Legendre v Bao, 29 AD3d 645, 816 NYS2d 495 [2d Dept 2006]; Cubero v DiMarco, 272 AD2d 430, 708 NYS2d 324 [2d Dept 2000]; Wiley v Hannon, 194 AD2d 722, 601 NYS2d 805 [2d Dept 1993]). While plaintiff also submitted the affirmed report of a physician who examined her on May 20, 2002 and June 3, 2002, such report did not raise a triable issue of fact. While it was reported that range of motion of the cervical, thoracic and lumbar spine was limited in specified ranges, the report sets forth no objective basis for the conclusion that such limitations are causally related to the accident (see Dominguez-Gionta v Smith, 306 AD2d 432, 761 NYS2d 310 [2d Dept 2003]). Moreover, since the report relates to findings over a two-week period approximately six months following the accident, it is insufficient to show the duration of plaintiff's condition (see Cerisier v Thibiu, 29 AD3d 507, 815 NYS2d 140 [2d Dept 2006]; see also Chinnici v Brown, 295 AD2d 465, 744 NYS2d 186 [2d Dept 2002]). In addition, there is no medical basis for the absence of treatment from 2002 to the present time. While a cessation of treatment is not dispositive, a plaintiff who terminates therapeutic measures following the accident, while claiming "serious injury," must offer some reasonable explanation for having done so (Pommells v Perez, 4 NY3d 566, 830 NE2d 278, 797 NYS2d 380 [2005]).

Accordingly, plaintiff has failed to successfully oppose defendants' applications by demonstrating that she suffered a "serious injury" as defined in Insurance Law § 5102 (d) (see Claude v Clements, 301 AD2d 554, 756 NYS2d 57 [2d Dept 2003]; see also Weaver v Derr, 242 AD2d 823, 661 NYS2d 684 [3d Dept 1997]; Napoli v Cunningham, 273 AD2d 366, 710 NYS2d 919 [2d Dept 2000]; Vitale v Carson, 258 AD2d 647, 685 NYS2d 788 [2d Dept 1999]).

HON. JOHN J.J. JONES, JR.

J.S.C.