Cenovski v ELRAC, Inc.
2008 NY Slip Op 52028(U) [21 Misc 3d 1110(A)]
Decided on September 29, 2008
Supreme Court, Richmond County
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This opinion is uncorrected and will not be
published in the printed Official Reports.
Cenovski v ELRAC, Inc.
Decided on September 29, 2008
Supreme Court, Richmond County
Namik Cenovski, Plaintiff(s),
ELRAC, Inc. and Jason Washington, Defendant(s).
Chelli & Bush
149 New Dorp Lane
Staten Island, NY 10306
Carman Callahan & Ingham
266 Main Street
Farmingdale, NY 11735
Philip G. Minardo, J.
Plaintiff commenced this action to recover damages for injuries allegedly sustained by him when the vehicle he was driving was struck by a vehicle owned by defendant ERLAC, INC. and operated by defendant JASON WASHINGTON. The accident occurred on September 5, 2006 on the westbound side of the Verrazano Bridge in Staten Island. As a result of said collision, plaintiff alleges a multitude of injuries to his back, neck and shoulder, and claims to have sustained, inter alia, disc bulges at L3-4, L4-5, L5-S1, C3-4, C5-6 and C6-7; tendonitis, Hill-Sach's deformity and joint space narrowing; neck pain with radiation to the left shoulder and mid and lower back pain. He further alleges cervical and lumbar radiculopathy; loss of normal function and use of the cervical and lumbar spine; and loss of normal function and use of the left shoulder, arm, wrist and hand. Plaintiff further alleges that these injuries are accompanied by, inter alia, intense pain, soreness, swelling, discomfort, headaches and limitation and restriction [*2]of movement. In addition, plaintiff alleges that he sustained soft tissue injuries that are arthritis-producing in nature; that these injuries have exacerbated any pre-existing conditions; and that the sequelae of these injuries are now permanent in nature.
In moving for summary judgment and dismissal of the complaint, defendant JASON WASHINGTON [FN1] contends that plaintiff has failed to establish any "serious injuries" as a result of the subject motor vehicle accident as required by Insurance Law §5102(d). According to defendant, plaintiff's injuries are not causally-related to the subject motor vehicle accident, but are the result of a prior motor vehicle accident which occurred in 1994. In support, defendant submits a copy of plaintiff's bill of particulars from a previous lawsuit entitled Cenovski v. Lee (Index No.12144/95), in which he claims to have sustained similar injuries to his back and neck that were claimed to be permanent in nature. In that prior action, he also alleged that the injuries he sustained have caused him to restrict his normal life and activities, and that he was totally disabled as a result thereof. In addition, while plaintiff has now attempted to minimize both the injuries he sustained in the 1994 accident and the attendant medical care he received at that time, his EBT testimony from the prior action indicates otherwise. In fact, plaintiff therein claimed (1) that he received treatment from both a neurologist and orthopedist following the 1994 accident; (2) that the results of various imaging testing revealed herniated discs and inflamation of the neck and spine; (3) that surgery was recommended; (4) that he was required to see a physical therapist three times a week for nine months; (5) that he was confined to bed following that accident; and (6) that he was unable to perform post-accident activities which had theretofore been a part of his normal life. According to the defendant, this proof clearly contradicts plaintiff's claims that his current condition is causally-related to the accident that is the subject of the current lawsuit.
In further support, defendant submits the affirmed report of an orthopedist, Dr. Gregory Montalbano, who examined plaintiff and reported, inter alia, that he suffers from cervical and lumbar strain and sprain which diminishes his range of motion, but that his current condition is the result of a pre-existing injury that is degenerative in nature and not causally-related to the subject motor vehicle accident. The remaining portion of Dr. Montalbano's examination yielded quantified findings that compared favorably with the established norms. According to Dr. Montalbano, plaintiff has a degenerative disease of the spine, and exhibits no evidence of any acute injury. In fact, Dr. Montalbano points out that plaintiff's emergency room records from the current accident indicate that he made no complaints of back pain, and that a radiographic evaluation at the hospital showed no signs of trauma as opposed to degenerative changes.
In addition, defendant submits the affirmed report of a neurologist, Dr. Stephen Kulick, who examined plaintiff and concluded that he had suffered no neurologic disability. According to Dr. Kulick, plaintiff exhibited restricted ranges of motion in both the cervical and lumbar spine, but opined that these findings were subjective in nature, and that plaintiff had voluntarily restricted his range of motion in the lumbar, cervical and shoulder areas, exhibiting decreased effort in completing the tests administered by him. Dr. Kulick further reported no causally-related objective neurological findings; no objective evidence of radiculopathy or permanent neurological disability; and no need for further neurological testing or treatment. [*3]
Based upon this evidence, plaintiff's sworn testimony and the pleadings in both the prior and current actions, defendant contends that plaintiff has failed to establish that the injuries which he claims are causally-related to the subject motor vehicle accident. Defendant also contends that there is no proof that plaintiff (1) suffered any total loss of use of his back, neck or shoulder, or (2) suffers from any permanent consequential limitation of use of a body organ or member or (3) sustained any significant limitation of use of a body function or system as a result of this accident. In support, defendant contends that the examinations of Drs. Montalbano and Kulick establish that plaintiff has not suffered any permanent limitation of use of his back, neck and shoulder, and that any restricted ranges of motion reported by defendant's experts were attributable to prior injuries and/or to plaintiff's limited effort to complete the examination. In the alternative, defendant contends that the findings reported in his physicians' reports indicate, at most, mild or slight limitations of motion, which do not satisfy the statutory requirement of serious injury.
Finally, defendant contends that there is no proof that plaintiff suffers from a medically-determined, causally-related injury that has prevented him from performing substantially all of his usual and customary daily activities for the required 90 of the first180 days following the subject accident. According to defendant, plaintiff's self-serving statement that he was unable to return to work, is insufficient, standing alone, to defeat the current summary judgment motion.
In opposition, plaintiff submits the affirmation of his treating physician, Dr. Walter Pizzi, who examined him shortly after the subject accident, and has rendered continuous treatment, including a recent reexamination. According to Dr. Pizzi, his initial examination revealed significant restrictions in plaintiff's range of motion of the lumbar and cervical spine, as well as tenderness at the C4-C7 levels bilaterally, accompanied by muscle spasm. In addition, palpation of the lumbar spine was said to reveal tenderness from L1 through S1 with discernable spasm. An examination of plaintiff's left shoulder was said to reveal tenderness upon palpation, with trapezuis and deltoid muscle spasm, and significant restrictions in his range of motion. Dr. Pizzi further stated that he ordered x-rays and MRIs of plaintiff's cervical and lumbar spine and his left shoulder. According to the doctor, his review of the results of these diagnostic tests revealed, inter alia, bulging discs at C3-4, C4-5, C5-6 and C6-7, deforming the thecal sac and spinal cord diffusely; disc space narrowing at C4-5 and C5-6; a bulging disc at L5-S1; grade II tendonitis of the distal supraspinatus tendon in the left shoulder; bony impingement in the left shoulder; and Hill-Sach's deformity in the left shoulder; as well as joint space narrowing in the same area.
According to Dr. Pizzi, the MRI findings combined with the positive orthopedic testing, palpable tenderness and muscle spasm provided objective correlation for plaintiff's complaint of pain and limitation.
As for his recent examination of plaintiff, Dr. Pizzi reported that the former continues to suffer from cervical pain that radiates primarily into his left shoulder, as well as persistent dull lumbar pain. Dr. Pizzi also reported that the quantified findings of cervical and lumbar range of motion testing continued to reveal significant restrictions, muscle spasm, and tenderness upon palpation. According to Dr. Pizzi, similar restrictions were also apparent upon examination of plaintiff's left shoulder, with signs and symptoms of severe residual inflammatory pathology to the muscular supportive structures of the cervical and lumbar spines and the left shoulder.
Finally, Dr. Pizzi reports that although plaintiff has shown some improvement with [*4]treatment, his residual symptoms persist. According to the doctor, the extent of plaintiff's injuries has required continuing treatment, and it would not be unusual for acute exacerbations and remissions to recur over an extended period of time. He further states that plaintiff continues to experience difficulty with repetitive bending, reaching, prolonged sitting and standing, as well as lifting, pushing and carrying objects with his left arm. Thus, Dr. Pizzi concludes that the injuries sustained in the subject motor vehicle accident have caused plaintiff significant limitation of motion and use, and given the duration of these symptoms and restrictions, the limitations should be considered permanent. In addition, Dr. Pizzi states that the existence of multiple disc bulges, positive orthopedic findings, and quantifiable decreases in range of motion provide objective proof and correlate well with plaintiff's claims of restricted mobility, which has persisted for over two years post-accident. According to the doctor, plaintiff was asymptomatic prior to the accident, and although he was involved in a previous motor vehicle accident in 1994, he was diagnosed at that time with but a single herniation at L4-5 and a disc bulge at L5-S1. Moreover, the doctor maintained that said diagnoses made no mention of any injury to plaintiff's cervical discs or his left shoulder. As for the pre-existing herniation at L4-5, it was the doctor's opinion that said injury was exacerbated by the subject motor vehicle accident, and that the current cervical and lumbar disc bulges, as well as the injury to plaintiff's left shoulder are independent and were sustained solely as the result thereof. Also, according to Dr. Pizzi, plaintiff was unable to work for a period of 436 days following the subject accident due to the nature of his employment, which required long hours in a seated position operating a street-cleaning vehicle that makes quick forward and side-to-side movements, and requires constant use of the neck and shoulders to steer the vehicle.
Finally, plaintiff has submitted his own affidavit detailing the pain and restrictions in movement that he claims have prevented him from performing many of his daily activities, including carrying shopping bags, reaching, cleaning, playing with his son, cutting the lawn or taking out the garbage. He also claims to have difficulty sleeping, getting out of bed and getting dressed.According to plaintiff, the pain in his back and left shoulder following the 1994 accident bothered him for a while, but resolved after a few years.
A plaintiff seeking to recover damages for injuries sustained in an automobile accident is required to plead and prove that he has sustained a "serious injury" as defined in Insurance Law §§5102(d) and 5104 (see Licari v. Elliott, 57 NY2d 230). Initially, it is for the Court to determine whether or not such an injury has been sustained, since "[t]he result of requiring a jury trial where the injury is clearly a minor one would perpetuate a system of unnecessary litigation" (id. at 237). However, where there are issues of fact regarding "serious injury", a jury trial is required.
On a motion for summary judgment by a defendant on this issue, it is defendant's burden to make a prima facie showing that plaintiff did not sustain a serious injury as a result of the underlying motor vehicle accident. Once that burden has been satisfied, plaintiff is then required to come forward with proof sufficient to raise a triable issue of fact that he did, in fact, sustain a serious injury (see Gaddy v. Eyler, 79 NY2d 955). Here, it is the opinion of this Court that defendant has supplied adequate proof establishing that plaintiff did not sustain a serious injury as a result of the subject motor vehicle accident.
In this regard, the affirmations of defendant's orthopedist and neurologist contain [*5]objective medical proof establishing that any cervical and lumbar sprain and strain which plaintiff may have suffered, as well as any decrease in his cervical and lumbar ranges of motion, are the result of pre-existing injuries which are degenerative in nature. More particularly, Dr. Montalbano stated in his affirmation that while the MRI of plaintiff's left shoulder taken after the subject accident was said to reveal, inter alia, tendonitis and Hill-Sachs deformity, his independent review and the correlation of same with, e.g., plaintiff's range of motion studies revealed that the alleged limitations were attributable to "poor effort". He also concluded that plaintiff had a pre-existing condition of rotator cuff tendonitis with subacromial impingement syndrome and degenerative arthritis of the glenohumeral joint which could be related to a prior shoulder injury. According to Dr. Montalbano, the substantial injuries claimed by plaintiff would have emerged as such at the time of his emergency room evaluation following the subject accident, and there would have been clinical findings consistent with that level of injury. Notably, they were not. In addition, Dr. Montalbano pointed out that the MRI of plaintiff's left shoulder revealed degenerative conditions, including rotator cuff tendonitis and degenerative arthritis of the shoulder, with no findings of acute trauma. Based on the foregoing, Dr. Montalbano opined that plaintiff's symptoms with regard to his shoulder were not causally-related to the subject accident, and he drew similar conclusions with regard to the radiographic and imaging studies performed post-accident on plaintiff's cervical and lumbar spine. These, he averred, were equally without signs of acute injury, and were more consistent with diffuse degenerative disc disease and osteoarthritis as the cause of plaintiff's continued symptoms.Finally, both Drs. Montalbano and Kulick concluded that plaintiff suffers from no orthopedic or neurological disability, and is able to function in a normal capacity without further treatment.
Defendant having met his burden of establishing that plaintiff had not sustained a "serious injury" in the instant automobile accident, it became incumbent upon plaintiff to raise a triable issue of fact as to serious injury (see Pommells v. Perez, 4 NY3d 566). In the opinion of this Court, plaintiff has failed to sustain this burden, in part, because his expert failed to adequately address the findings of pre-existing injury and/or degenerative disease discussed in detail by defendant's experts. Moreover, a careful review of the injuries claimed by plaintiff in both the current bill of particulars and that interposed as a result of the 1994 accident suggests that the multitude of injuries claimed in the prior case, while not identical to those claimed in the present action, are sufficiently overlapping to require more than the cursory treatment afforded to them by Dr. Pizzi.
Further, the affirmation of Dr. Pizzi fails to quantify the alleged restricted range of motion of plaintiff's cervical and lumbar spine and left shoulder and compare it to normal, to establish the extent of his current limitations of motion, nor does Dr. Pizzi explain what objective tests were employed in making his findings (see Porto v Blum, 39 AD3d 614 [2nd Dept. 2007]; Manceri v Bowe, 19 AD3d 462 [2nd Dept. 2005]. Morever, his affirmation in opposition to defendant's motion only minimally addresses the findings of defendant's experts with regard to the extent of plaintiff's pre-existing injuries, and fails to rebut their findings of degenerative disc disease (see Carrasco v Mendez, 4 NY3d 566 ; Caldwell v Grant, 31 AD3d 1154 [4th Dept. 2006]; Bycinthe v. Kombos, 29 AD3d 845 [2nd Dept. 2006]). Thus, while Dr. Pizzi states, inter alia, that plaintiff sustained merely a single herniated disc (at L4-5), a single disc bulge (at L5-[*6]S10), and a sprain to his left shoulder as a result of the prior accident, his opinion that each of these injuries had resolved prior to the subject accident and that the plaintiff had become asymptomatic appears to be based largely or entirely on plaintiff's unsupported representation of same. The court notes the absence of a comparison between his prior MRIs and the MRI taken in the instant action. Accordingly, in the absence of any objective evidence that plaintiff's alleged injuries arose as the result of the subject motor vehicle accident, the doctor's conclusions must be regarded as speculative and insufficient to raise a triable issue of fact (see Vidor v. Davila, 37 AD3d 826). Similarly, Dr. Pizzi's conclusion that the present bulge at L4-5 represents an exacerbation of a prior herniation is likewise speculative in view of his failure to compare the prior and instant MRIs and his failure to rebut the claim of degenerative disease raised by defendant's expert.
Likewise, plaintiff's claim that he sustained a medically determined injury or impairment which prevented him from performing substantially all of the material acts which constituted his usual and customary activities for at least 90 of the first 180 days immediately following this accident is not supported by objective medical evidence of causation. Notably, plaintiff's EBT testimony in the prior accident case indicates that he was purportedly unable to engage in any similar activities as a result of that prior accident as well. Therefore, the claimed causal relationship between plaintiff's current claims of impairment and the subject motor vehicle accident is conjectural at best (see Smith v. Genardo, 27 AD3d 821). Finally, while Dr. Pizzi concluded that plaintiff could not return to work due to his present injuries and to the nature of his employment, plaintiff has failed demonstrate any non-speculative basis upon which to separate the injuries allegedly sustained in the subject accident from those previously suffered. Under these circumstances, the mere claim that plaintiff's recent injuries have disabled him from returning to his previous occupation driving a street sweeper is alone insufficient to defeat summary judgment.
It is therefore,
ORDERED that defendant's motion for summary judgment is granted and the complaint is dismissed; and it is further
ORDERED that the Clerk enter judgment accordingly.
E N T E R,
s/Philip G. Minardo
Dated: September 29, 2008 Footnotes
Footnote 1: Plaintiff discontinued the action without prejudice as against defendant ERLAC INC.by Stipulation dated March 7, 2007.