Fernandez v Mercedes

[*1] Fernandez v Mercedes 2006 NY Slip Op 52632(U) [21 Misc 3d 1114(A)] Decided on June 27, 2006 Supreme Court, Bronx County Stinson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2006
Supreme Court, Bronx County

Julio C. Fernandez, Plaintiff,

against

Aquiles Mercedes, Defendant.



23239/2004



Antin, Ehrlich & Epstein, LLP, by Frank Trier, Esq., for Plaintiff.

Baker, McEvoy, Morrissey & Moskovits, PC, for Defendant.

Betty Owen Stinson, J.

This motion by defendant for summary judgment dismissing the plaintiff's complaint is granted.

Plaintiff was driving to work on December 16, 2002 when his car was struck by another, allegedly causing him injury to his neck and lower back. His air bags did not deploy. After the accident, plaintiff declined an ambulance and instead took a bus to Harlem Hospital. Plaintiff missed two days of his work delivering meat to supermarkets. Two days after the accident, plaintiff visited an attorney who referred him to a chiropractor, Dr. Chester Bogdan. One week and a half to two weeks later, plaintiff began a six-month course of physical therapy consisting of chiropractic manipulation, electrical stimulation and cold and hot packs.

Plaintiff commenced an action against the defendant claiming injuries including herniated spinal discs at L4-5, L5-S1 and C6-7; bulging discs at L3-4 and L5-S1 and radiculopathy. Defendant moved for summary judgment arguing that plaintiff had not suffered a serious injury as a result of the subject motor vehicle accident.

Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]).

In order to recover for non-economic loss resulting from an automobile accident under New York's "No-Fault" statute, Insurance Law § 5104, the plaintiff must establish, as a threshold matter, that the injury suffered was a "serious injury" within the meaning of the statute. "Serious injury" is defined by Insurance Law § 5102(d) to include, among other things not relevant here, a [*2]"permanent consequential limitation of use of a body organ or member", a "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 customary activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment."

The initial burden on a threshold motion is upon the defendants to present evidence establishing that plaintiff has no cause of action, i.e.: that no serious injury has been sustained. It is only when that burden is met that the plaintiff would be required to establish prima facie that a serious injury has been sustained within the meaning of Insurance Law § 5102(d) (Franchini v. Palmieri, 1 NY3d 536 [2003]; Licari v. Elliot, 57 NY2d 230 [1982]).

To make out a prima facie case of serious injury, a plaintiff must produce competent medical evidence that the injuries are either "permanent" or involve a "significant" limitation of use (Kordana v. Pomelito, 121 AD2d 783 [3rd Dept 1986]). A finding of "significant limitation" requires more than a mild, minor or slight limitation of use (Broderick v. Spaeth, 241 AD2d 898, lv denied, 91 NY2d 805; Gaddy v. Eyler, 167 AD2d 67, aff'd, 79 NY2d 955). A permanent loss of use must be "total" in order to satisfy the serious injury threshold (Oberly v. Bangs Ambulance, 96 NY2d 295 [2001]; Hock v. Aviles, 21 AD3d 786 [1st Dept 2005]). Strictly subjective complaints of a plaintiff unsupported by credible medical evidence do not suffice to establish a serious injury (Scheer v. Koubek, 70 NY2d 678 [1987]). To satisfy the requirement that plaintiff suffered a medically determined injury preventing her from performing substantially all of her material activities during 90 out of the first 180 days, a plaintiff must show that "substantially all" of her usual activities were curtailed (Gaddy, 167 AD2d 67). The "substantially all" standard "requires a showing that plaintiff's activities have been restricted to a great extent rather than some slight curtailment" (Berk v. Lopez, 278 AD2d 156 [1st Dept 2000], lv denied, 96 NY2d 708). Allegations of sprains and contusions do not fall into any of the categories of serious injury set forth in the statute (Maenza v. Letkajornsook, 172 AD2d 500 [2nd Dept 1991]).

"Proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury" (Pommels v. Perez, 4 NY3d 566 [2005]). A plaintiff's subjective complaints of pain are insufficient, without more, to establish that herniated discs constitute a serious injury (Pierre v. Nanton, 279 AD2d 621 [2nd Dept 2001]).

The defendant may rely on medical records and reports prepared by plaintiff's treating physicians to establish that plaintiff did not suffer a serious injury causally related to the accident (Franchini, 1 NY3d 536). Once the burden has shifted however, an affidavit or affirmation by the person conducting a physical examination of the plaintiff is necessary to establish a serious injury, unless plaintiff is offering unsworn reports already relied upon by the defendant (Grossman v. Wright, 268 AD2d 79 [3rd Dept 2000]; see also Zoldas v. Louise Cab Co.,108 AD2d 378 [1st Dept 1985]). The affirmation must set forth the objective medical tests and quantitative results used to support the opinion of the expert (Grossman, 268 AD2d 79). "An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system (cite omitted)" (Toure v. [*3]Avis Rent A Car Systems, 98 NY2d 345 [2002]). A conclusory affidavit of the doctor does not constitute medical evidence (Zoldas, 108 AD2d 3778; see also Lopez v. Senatore, 65 NY2d 1017 [1985] [conclusory assertions tailored to meet statutory requirements insufficient to demonstrate serious injury]).

In support of the motion, defendant offered the plaintiff's bill of particulars, plaintiff's deposition testimony and the affirmed report of Dr. Marianna Golden. Plaintiff's bill of particulars listed the injuries set forth above.

Plaintiff testified that, when he returned to his full-time work after the accident, he had someone help him load delivery trucks for six months. Instead of lifting normal weights of about 50 to 80 pounds, he was only able to lift 5 to 25 pounds (Deposition of Julio C. Fernandez, June 14, 2005 at 13-14). Instead of making 15 to 16 stops, he only made 6 to 8 stops a day (Id. at 13). After six months, plaintiff was able to return to normal duty without the need of help (Id. at 16). For a year after the accident, plaintiff took public transportation to and from work. The trips were 1 hour and 45 minutes to 2 hours each way (Id. at 59-60). In addition, he traveled approximately 1 hour each way to his physical therapy appointments (Id. at 52). Plaintiff testified that, before the accident, he used to help his wife with sweeping, mopping and washing dishes. Now it is "hard" to move the mop (Id. at 61). He used to play soccer or basketball for 2 hours at a time. Now he can only play for 10 to 15 minutes (Id. at 65).He experiences pain after sitting for 10 to 15 minutes (Id. at 61). However, he can drive for about an hour before beginning to feel pain (Id. at 65).

Dr. Golden, neurologist, examined plaintiff on November 29, 2005. Romberg's, Patrick's and Kernig's tests were all negative and plaintiff's straight-leg raising test was normal. Plaintiff had full range of motion in his cervical and lumbar spine without complaint of pain or spasm. Dr. Golden concluded plaintiff showed no objective evidence of permanence or disability and was capable of carrying on all activities of normal living.

In opposition to the motion, plaintiff offered his own affidavit, the affirmed MRI reports of Dr. Jeffrey Chess, unaffirmed SSEP tests by Dr. David G. Steiner and the affidavit of Dr. Bogdan. Plaintiff stated in his affidavit dated March 17, 2006 that he still suffered pain after six months of treatment, but was discharged and sent home with an exercise program. He still suffers neck pain approximately 2 to 3 times a week and back pain 4 to 5 times a week. Standing more than 15 minutes produces lower back pain. He cannot sleep through the night due to neck and back pain or sit for "prolonged periods" of time while driving. He can only play basketball and soccer for 15 minutes at a time. He can no longer sweep, mop or wash dishes.

Dr. Chess performed MRI examinations of plaintiff's cervical and lumbar spine on January 30, 2003 and January 23, 2003, respectively. Dr. Chess found C6-7, L4-5 and L5-S1 disc herniations, a bulging disc at L3-4 and concluded that the bulges and herniations "may be" related to the subject accident.

The unaffirmed SSEP examination reports of plaintiff's upper and lower extremities, performed by Dr. Steiner on February 5, 2003 and February 12, 2003, respectively, read that those studies were "suggestive" of C6-7 and L4-L5 "nerve root dysfunction". An NCV test was suggested to rule out motor neuron involvement.

Dr. Bogdan stated he examined plaintiff for the first time on December 27, 2002. Plaintiff complained of neck, mid-back and lower back pain at that time. Initial diagnosis was [*4]cervical and lumbosacral sprain-strain with radiculitis and radiculopathy. Following a six-month course of treatment, plaintiff was discharged and placed on a home exercise program, despite his continuing complaints of pain, because Dr. Bogdan determined plaintiff had reached maximum benefit with regard to the treatment he had been receiving.

After three years, plaintiff returned for a "follow-up" visit. Plaintiff complained of "constant" and "severe" pain in his neck, upper back and lower back. He complained of "difficulty" sleeping and lifting heavy items. Dr. Bogdan reviewed MRI, SSEP, NCV reports and two reports by Dr. Robert S. Goldstein. Dr. Goldstein's reports were not offered. Dr. Bogdan related the results of range of motion tests with the use of a goniometer. The latter tests showed numerically decreased range of motion in plaintiff's cervical and lumbar spine. Soto-Hall's, Lindner's, Kemp's, Bechterew's and Milgram's tests were said to be positive. Straight-leg raising test was positive at 60 degrees. Dr. Bogdan's impression was disc herniation at C6-7, L4-5 and L5-S1, bulging disc at L3-4, cervical and lumbosacral sprain-strain, radiculitis and radiculopathy. Dr. Bogdan concluded that plaintiff should be "especially careful" in the performance of strenuous activities, lifting heavy objects was contraindicated and the normal activities of daily living "pose threats" to plaintiff's "total recovery." Based on the "history as presented and the objective findings from the examination procedures", Dr. Bogdan opined that plaintiff had sustained a "permanent partial disability" in the cervical and lumbar spine, including loss of range of motion, as a result of the subject accident. Dr. Bogdan did not state specifically that he had personally examined plaintiff during the follow-up visit. Examination notes were not offered.

Defendant has established his entitlement to summary judgment which plaintiff has not refuted with admissible medical evidence. Defendant met his burden of showing by admissible medical evidence that the plaintiff suffered from sprain injuries, at best, which have completely resolved. His testimony established that, within six months of the accident, he returned in full measure to his employment which requires loading 50- to 80-pound boxes of meat on a truck, by himself, driving to 15 or 16 locations daily and delivering those same boxes of meat. His subjective complaints of pain while thus engaged are not sufficient to demonstrate he has suffered a serious injury. Nor are his complaints of being unable to help his wife wash the dishes or only being able to play basketball and soccer for 10 or 15 minutes at a time at his stated age of 38. His testimony that he returned to work two days after the accident precludes a finding that he was prevented by a medically determined condition from performing substantially all his customary activities for 90 out of the first 180 days following the accident.

Herniations and bulges are not, by themselves, proof of serious injury. The SSEP tests were not only unsworn, but inconclusive. Dr. Bogdan's affidavit gave only the vaguest and most qualified reason for discharging the plaintiff from therapy, conceded plaintiff was not seen for another three years and was similarly vague as to whether he personally examined the plaintiff when he returned. The gap in treatment was not sufficiently explained and, under these circumstances, was not a gap, but a cessation of treatment. Dr. Bogdan did not state whether the range of motion tests he reported were subjective or objective measures of plaintiff's alleged limitations. His conclusion of permanence was contradicted by his statement that plaintiff's normal activities posed a threat to his "total recovery".

The complaint is, therefore, dismissed in its entirety. Movant is directed to serve a copy [*5]of this order with notice of entry on the Clerk of Court who shall enter judgment dismissing the plaintiffs' complaint.

This constitutes the decision and order of the court.

Dated: June 27, 2006

Bronx, New York

_______________________________

Betty Owen Stinson, J.S.C..