Wright v Rodriguez

[*1] Wright v Rodriguez 2006 NY Slip Op 52711(U) [28 Misc 3d 1212(A)] Decided on November 16, 2006 Supreme Court, Westchester County Murphy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2006
Supreme Court, Westchester County

Raquel Wright and Hasan Precise, Plaintiff,

against

William Rodriguez, Luis Ospina and White Plains Bus Co., Inc., Defendants.



9712-05



LAW OFFICE OF JAMES J. KILLERLANE

Attorney for Plaintiff

175 Main Street, Suite 606

White Plains, New York 10601

JOHN C. BURATTI & ASSOCIATES

Attorneys for Defendant Rodriguez

One Executive Blvd., Suite 177

Yonkers, New York 10701

PATRICK COLLIGAN, ESQ.

Attorney for White Plains Bus Co.

701 Westchester Avenue

White Plains, New York 10604

J. Emmett Murphy, J.

It is hereby ORDERED, that the motion is granted and the complaint is dismissed.

The evidence submitted by defendants was sufficient to establish that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law 5102 (d), as each had full range of motion and suffered no causally related neurological disabilities, despite the existence of an MRI report which noted bulging and herniated discs (Hernandez v Taub, 19 AD3d 368; Kearse v New York City Transit Authority 16 AD3d 45; Meely v 4G's Truck Renting Co., Inc., 16 AD3d 26). [*2]

Contrary to defendants' contention, since the results of the MRI reports were referred to by defendants' expert and plaintiff's treating neurologist averred that he personally reviewed the film and reports, these results may be relied upon by plaintiff (Kearse v New York City Transit Authority, supra , FNI; Silkowski v Alvarez, 19 AD3d 476; Thomas v Abbasi, 15 AD3d 95; Dioquardi v Weiner, 288 AD2d 253). However, the MRI report of plaintiff Precise's lumbar spine attributed the disc herniation and abnormalities to degenerative disc disease. Defendant's expert also concluded that there was no traumatic etiology for the mild degenerative change in Precise's lumbar spine. Although Precise's treating neurologist affirmed that physical examinations of Precise conducted in July, August, September and October of 2004 and in July, September and November of 2005 revealed specific numerical deficiencies in Precise's spinal flexion and left and right lateral rotation of the lumbar spine and that Precise's pain and loss of range of motion was consistent with the herniation identified in the MRI report, his conclusory opinion that said injuries were permanent and causally related to the accident is insufficient to refute defendant's evidence, including the MRI report relied upon by plaintiff's doctor, of a pre-existing degenerative condition, (see Lorthe v Adeyeye, 306 AD2d 252; Shaw v Looking Glass Assoc. L.P., 8 AD3d 100.) "In this case, with persuasive evidence that plaintiff's alleged pain and injuries were related to a pre-existing condition, plaintiff had the burden to come forward with evidence addressing defendant's claimed lack of causation. In the absence of any such evidence, defendant was entitled to summary dismissal of the complaint (Pommells v Perez, 4 NY3d 566 aff'd Carrasco v Mendez 5 AD3d 716; see also Franchini v Palmieri, 1 NY3d at 536, 537).

Although an MRI report of Precise's cervical spine also revealed disc herniation at C6-C7 and C3-C4, no restriction of motion in any plane of movement of his cervical spine was ever found during examination conducted by plaintiff's treating neurologist. In the absence of objective corroboration that the herniation resulted in physical limitations, the mere existence of a herniated disc is insufficient to establish prima facie, a serious injury, (Meely v 4G's Truck Renting Co., Inc., supra ; Diaz v Turner, 306 AD2d 241; Kearse v New York City Transit Authority;, supra ). Accordingly, the motion is granted and Hansan Precise's claim against defendants is dismissed.

With respect to plaintiff Wright, the MRI report of her lumbar spine revealed a "minimal posterior paracentral bulge at L4-L5 without any impingement on surrounding neural structure. Although Wright's treating neurologist, who she saw for the first time a month after the accident, quantified restrictions in motion of Wright's lumbar spine [75 degrees forward flexion (normal 90 degrees) and 20 degrees left and right lateral flexion (30 degrees normal)], plaintiff's neurologist did not identify the objective test utilized to measure range of motion. His medical reports consistently found that the straight leg raising test was normal. Although the affirmation of plaintiff's neurologist recites that the aforenoted limitations in motion existed on 10/14/04, his notes, regarding range of motion test results for that date indicate that the only deficit in the lumbar range of motion was 75 degrees in forward flexion, which amounts to a 17 percent overall deficit four months after the accident. Such a deficit would not qualify as a serious injury (see Baker v Donahue, 199 AD2d 661; Medina v Zalmen Reis and Associates., 239 AD2d 661; Waldman v Dong Kook Chang, 175 AD2d 205; see also Bandoian v Bernstein, 254 AD2d 205; [*3]Decker v Stang, 243 AD2d 1033). Although Insurance Law 5102 (d) does not expressly set forth a temporal requirement for a significant limitation, there can be no doubt that if a bodily limitation is substantial in degree yet only fleeting in duration, it should not qualify as a serious injury under the statute (Partlow v Meehan, 155 AD2d 647; Thrall v City of Syracuse, 60 NY2d 950 rv'd on dissent of Moule, J. [medical evidence that injured party had full range of motion in April 1979 refutes that the injury sustained in January of 1979 significantly limited use of arm and shoulder]; Ciaccio v J. & R. Home Improvements, 149 AD2d 558 (evidence injured party's range of motion was excellent four months after accident negates claim of significant limitation]; see also McCleary v Hefter, 194 AD2d 594). Nor did plaintiff's expert expressly state the alleged restriction in the range of motion of Wright's lumbar spine was related to the bulging disc (see Pierre v Nanton, 279 AD2d 621).

Plaintiff Wright returned to work full time as a retail sales representative after missing two or three days of work after the accident. Aside from lifting heavy objects, which weight restriction was placed upon her for one week after the accident by her doctor, plaintiff admitted at her deposition that she is not limited from doing anything after the accident that she could do before the accident. She also attended only nine physical therapy sessions (8/17/04- 10/26/04) before ceasing treatment. In light of the aforenoted admissions, plaintiff's conclusory allegation in her affidavit that she no longer can do physical work without pain and had to modify her job duties to avoid lifting, is insufficient to demonstrate that she sustained a serious injury under the 90/180 day category (Ingram v Doe, 296 AD2d 530).

Based upon a recent examination (2/23/06), plaintiff Wright's treating neurologist again found restriction in range of motion of 75 degrees out of 90 degrees for forward flexion and 20 degrees out of 30 degrees in left/right rotation, with spasms and significant paraspinal tenderness. However, plaintiff's doctor did not describe the tests he used to measure range of motion (Herman v Church, 276 AD2d 471) and where the results rest solely upon the subjective inputs of plaintiff, they are insufficient (Torre v Avis Rent-A-Car Systems, Inc., 98 NY2d 345). Moreover, there is a seventeen month gap in treatment from the date of plaintiff' last physical therapy session and the recent examination conducted by plaintiff's doctor. In Pommell v Perez, supra , the Court of Appeals held that "even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury - such as a gap in treatment, an intervening medical problem or a pre-existing condition - summary dismissal fo the complaint may be appropriate."

Plaintiff Wright claims that this gap, which in reality was a cessation of treatment was triggered by the discontinuance of no fault benefits. The affirmed report of an independent medical examination conducted at the behest of an insurance carrier evidences that plaintiff ceased physical therapy over a month before the carrier's expert concluded that plaintiff suffered no disability and that there was no medical necessity for any further physical therapy. Even if plaintiff's doctor was of the opinion that physical therapy was needed, plaintiff failed to provide an explanation as to why she could not have continued treatment through her employee health benefits, which she admitted receiving at her deposition, or why she could not have continued [*4]treatment paid out of her own pocket, since she was employed full time since the accident. Here, the reason proffered by plaintiff for discontinuing treatment is insufficient to explain the cessation of treatment (Gomez v Ford Motor Credit Co., 10 Misc 3d 900 ; Falco v Jackson, 12 Misc 3d 1174[A] ). Such a gap in treatment overrides plaintiff's medical proof of limitations and interrupts the chain of causation between the accident and the claimed injury (Pommels v Perez, supra ; Mahabir v Ally, 26 AD3d 314; Batista v Olivo, 17 AD3d 494). Plaintiff Wright's expert's conclusions appear to be based solely upon the plaintiff's subjective complaint of pain. His conclusory assertions are tailored to meet the statutory requirements and are, thus, insufficient to raise a triable issue of fact that plaintiff Wright sustained a serious injury (Gaddy v Eyler, 79 NY2d 955).

Accordingly, the motion is granted and the Wright's claims are also dismissed as against the defendants.

Dated: November 16, 2006

White Plains, New York

___________________________

J. Emmett Murphy

Supreme Court Justice