Levi v Kiska Corp.
Decided on January 31, 2007
Supreme Court, Kings County
Oren Levi, Plaintiff,
Kiska Corp. and Avedis Sayesh, Defendants
Francois A. Rivera, J.
By notice of motion filed on October 31, 2006, defendants Kiska Corp. (Kiska) and Avedis Sayesh, (Sayesh) jointly move under sequence number two for an order to restore their prior motion for summary judgment, sequence number one, to the court's calendar.
On September 20, 2006, defendants moved pursuant to CPLR § 3212 and Insurance Law 5102(d) to dismiss the complaint on the basis that plaintiff did not sustain a serious injury. On October 16, 2006, the motion was marked off the calendar for defendants' failure to appear for oral argument. By order of this court, issued January 5, 2006, motion sequence number one was restored to the calendar and adjourned for oral argument to be heard in Part 52 of this court on January 19, 2007. On January 19, 2007, this court heard oral argument on the motion and reserved decision.
On October 6, 2005, plaintiff commenced this action for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. Issue was joined by defendants' verified answer, filed on November 17, 2005. On July 21, 2006, a note of issue was filed.
Plaintiff's complaint and bill of particulars allege that on September 23, 2003, at around 8:40 am, while driving his car in an eastbound direction on the Belt Parkway near Erskine Street in Kings County, he was struck in the rear by a vehicle operated by Sayesh and owned by Kiska. He further claims that the collision caused him to sustain, among other things, permanent serious injuries in the cervical and lumbar spine area.
Defendants' Motion Papers
Defendants' motion papers contain an affirmation of their counsel and annexed exhibit A. Exhibit A is a complete copy of the original motion papers and accompanying exhibits of motion sequence number one.
The prior motion, sequence one, includes the affirmation of defendants' counsel, and seven exhibits. Exhibit A is a supporting memorandum of law. Exhibit B is the summons and verified complaint. Exhibit C is defendants' verified answer. Exhibit D is plaintiff's verified bill of particulars. Exhibit E is the affirmed narrative report of Dr. Roger A. Berg, a radiologist, of his review of the plaintiff's cervical and lumbar MRI studies taken on October 28 and November 11, 2003, respectively . Exhibit F is the affirmed, narrative report of Dr. Wendy Cohen, a [*2]neurologist, pertaining to her independent medical examination of the plaintiff on June 30, 2006. Exhibit G is an excerpt of the plaintiff's deposition transcript conducted on June 2, 2006.
Plaintiff's Opposition Papers
Plaintiff's opposition papers consist of an affidavit of his counsel and five annexed exhibits. Exhibit A is a report of Dr. Ahmed Halima pertaining to his physical examination of plaintiff on September 25, 2003. Exhibit B contains a report of Dr. Stephen Roberts pertaining to his examination of the plaintiff on November 5 and 6 and December 18, 2003. Also included are his findings based on his review of an EMG and nerve conduction studies (NCV) performed on the plaintiff as well as some billing records. Exhibit C is an insurance claim form of Travelers Property Casualty Corporation pertaining to the plaintiff's claim. Exhibit D is an affidavit of Nestor Nicolaides, D.C , pertaining to his examination of the plaintiff on September 25, 2003.Exhibit E is an affirmation of Dr. Robert Scott Schepp, a radiologist, pertaining to his supervision and review of plaintiff's cervical and lumber MRI studies conducted on October 28, and November 11, 2003, respectively. Exhibit F is another report of Dr. Stephen Roberts referring to his medical examination of the plaintiff on September 25, 2003 and November 9, 2006. Exhibit G is an affidavit of Nestor Nicolaides, D.C , pertaining to his examination of the plaintiff on September 25, 2003 and November 6, 2003. Defendants' replied to plaintiff's opposition with an affirmation of their counsel.
Law and Application
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320 ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Guiffirda v Citibank, 100 NY2d 72 ). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 ). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hosp., supra., 68 NY2d at 324).
In order for the defendants to prevail on their motion for dismissal of the complaint, they must establish a prima facie entitlement to judgment that plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) as a result of the subject motor vehicle accident (Toure v. Avis Rent a Car Sys., 98 NY2d 345 ).
Defendants' motion contained affirmations from a radiologist and neurologist attesting to plaintiff's medical condition. Dr. Berg, the radiologist reviewed plaintiff's cervical and lumbar MRI studies. He found a small bulge at C5-6 that he opined was not causally related to the accident and found no other anomalies.
Dr. Wendy Cohen, the neurologist, examined the plaintiff on June 30, 2006. She found no neurological anomalies in plaintiff's motor, reflexes and sensory examinations. She found his gait and his range of motion in the neck and cervical area to be normal. Dr. Cohen sets forth the specific test she utilized and the numerical range of motion she found as compared to normal range. She offered no opinion regarding plaintiff's condition during the first six months following the accident.
Plaintiff's verified bill of particulars alleges that he suffered a serious injury as defined by Insurance Law §5102(d) which included the following category: "a medically determined injury [*3]or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
Defendants rely on plaintiff's deposition testimony and bill of particulars to show the contrary. In particular, plaintiff stated in both that he lost one week of work due to the accident. Defendants contend that this admission alone satisfied their burden to show that plaintiff did not sustain a serious injury in the category of injury or impairment of a non-permanent nature. A defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) despite the existence of an MRI which shows herniated or bulging discs (Kearse v New York City Tr. Auth., 16 AD3d 45, 49 [2nd Dept 2005], citing Diaz v. Turner, 306 AD2d 241, 242 [2nd Dept. 2003]). The affirmations of Dr. Berg and Dr. Cohen and plaintiff's aforementioned admissions meet defendants' prima facie burden (Toure v Avis Rent A Car Sys., 98 NY2d 345 ).
In opposition, the plaintiff submitted, among other things, a report from Doctor Ahmed Halima (Halima), two affirmations and reports from Dr. Robert Scott Schepp (Schepp); two reports from Doctor Stephen Roberts (Roberts); and two affidavit of Nestor Nicolaides, D.C., (Nicolaides).
The two affirmation of Dr. Schepp, a radiologist, pertain to his supervision and review of plaintiff's cervical and lumbar MRIs taken on October 28 and November 11, 2003, respectively. Nicolaides referred the plaintiff to Dr. Schepp for the cervical MRI and Dr. Halima referred him for the lumbar MRI. Dr. Schepp found a diffuse posterior bulging disc a C5-C6 deforming the thecal sac and spinal cord in plaintiff's cervical MRI . He found a posterior bulging disc at L5-S1 extending into the epidural fat deforming the bilateral S1 nerve root and abutting the thecal sac in plaintiff's lumbar MRI. Dr. Schepp's two affirmations and reports were in admissible form and provided objective evidence of plaintiff's injuries contemporaneous to the accident.
Dr. Halima's report and the first report of Dr. Roberts, dated November 5, 2003, were not affirmed. Dr. Roberts' report dated November 5, 2003 also discussed EMG and NCV studies of the plaintiff that were not attached. The court did not consider the un-affirmed report of Dr. Halima or Dr. Roberts' references to EMG or NCV studies of the plaintiff (Grasso v. Angerami, 79 NY2d 813 ; Felix v New York City Tr. Auth., 32 AD3d 527 [2nd Dept 2006]).
The second narrative report of Dr. Roberts, dated November 21, 2006, was affirmed and discussed his examination of plaintiff on November 9, 2006. He stated that he took over the care of the plaintiff from Dr. Halima and reviewed plaintiff's records. He referenced the cervical and lumbar MRI's conducted by Dr Schepp. He also conducted his own range of motion testing and made the following findings. He found that plaintiff's cervical spine had 50 degree of flexion, with normal being 60 degrees; 35 degrees of extension with normal being 50 degrees; 80 degrees of right rotation and 65 degrees of left rotation with normal being 80 degree; 35 of right lateral flexion and 30 degrees of left lateral flexion with normal being 40 degrees. He found that plaintiff's lumbar spine had 65 degree of flexion, with normal being 90 degrees; 20 degrees of extension with normal being 30 degrees; 30 degrees of right rotation and 25 degrees of left [*4]rotation with normal being 30 degrees; 20 degrees of right lateral flexion and 15 degrees of left lateral flexion with normal being 20. He concluded that plaintiff had post traumatic cervical and lumbar radiculitis caused by the accident in question.
The first affidavit of Nester Nicolaides, D.C., plainitff's treating chiropractor, was notarized on December 28, 2006 and discussed his examination of the plaintiff on September 25, 2003. Nicolaides tested plaintiff's range of motion and found limitation in flexion, extension and bilateral flexion of the cervical spine and restriction in all motion of the lumbar spine. He did not, however, ascribe a specific percentage to the loss of range nor did describes the qualitative nature of plaintiff's limitations based on the normal function, purpose and use of the body part (Toure v. Avis Rent A Car Sys., 98 NY2d supra at 353 ). Also included behind his affidavit were additional billing records.
The second affidavit of Nicolaides was notarized on December 18, 2006 and discussed his earlier examination of September 25, 2003 and his later examination of the plaintiff on November 6, 2006. Nicolaides again found range of motion limitation in plaintiff's cervical spine. This time, however, he ascribed the specific percentage to the loss of range. In plaintiff's cervical spine he found 45 degree of flexion, with normal being 60 degrees; 30 degrees of extension with normal being 50 degrees; 65 degrees of right rotation and 60 degrees of left rotation with normal being 80 degree; 35 of right lateral flexion and 20 degrees of left lateral flexion with normal being 40 degrees. Once again, he found range of motion limitations in plaintiff's lumbar spine. In particular, he found that plaintiff had 60 degree of flexion, with normal being 90 degrees; 20 degrees of extension with normal being 30 degrees; 30 degrees of right rotation and 20 degrees of left rotation with normal being 30 degrees. Nicolaides also found that palpation of plaintiff's lumbo-pelvic region and lower extremities revealed muscle spasms. He opined that the range of motion limitations were causally related to plaintiff's accident of September 23, 2003. Defendants contend that the sworn statement of Nicolaides, plaintiff's treating chiropractor, are not competent evidence pursuant to CPLR §2106 and Feintuch v. Grela, 209 AD2d 377 [2nd Dept 1994]). However, the fact that his findings are contained in an affidavit as opposed to an affirmation fully addresses the proscriptive limitations of CPLR §2106.
The first un-affirmed report of Dr. Robert's was considered to the extent that it was incorporated by reference in his affirmed report. Plaintiff's admissible evidence showed that he had a medical examination by Nicolaides and Dr Roberts that was contemporaneous to the accident. The examination of Dr. Roberts revealed range of motion limitations in the cervical and lumbar spine. Although he did not give the specific numerical range of motion loss in his first un-affirmed report he did do so in his later affirmed report and did discuss the earlier examination in his affirmed report. The fair inference being that Dr. Roberts found range of motion limitation based on an objective examination contemporaneous to the accident. These finding were supported by objective evidence consisting of Dr. Schepp's MRI studies. Those studies of the cervical and lumbar spine demonstrate that the plaintiff sustained cervical and lumbar radiculitits as a result of the accident. Nicolaides, D.C. and Dr. Roberts both causally linked plaintiff's continued loss of range of motion in the cervical and lumbar spine to the accident in question. The noted deficiencies pertaining to Nicolaides and Dr. Robert's failure to ascribe specific percentages to loss of range in their earlier reports was addressed by their later sworn reports. Plaintiff has demonstrated a material issue of fact on whether he has sustained a [*5]serious injury within the meaning of Insurance Law §5102(d). Defendants' motion for summary judgment dismissing the complaint is denied.
The foregoing constitutes the decision and order of this court.