Pabon v Cerda

[*1] Pabon v Cerda 2009 NY Slip Op 50059(U) [22 Misc 3d 1106(A)] Decided on January 8, 2009 Supreme Court, Bronx County Victor, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 8, 2009
Supreme Court, Bronx County

Abraham Pabon, Plaintiff(s),

against

Jonathan Cerda and VICTOR TOLENTINO, Defendant(s).



6275/2007



Plaintiff: Naimark & Tannenbaum

169-91 137th Avenue

Jamaica, NY 11434

Defendant: Baker, McAvoy, Morrissey & Moskovits

330 West 34th Street

New York, NY 10001

Paul A. Victor, J.

Defendants Jonathan Cerda and Victor Tolentino move for summary judgment pursuant to CPLR §3212 and dismissal of the complaint against them, due to the failure of the plaintiff to have sustained a "serious injury" as defined in §5102 of the Insurance Law.

FACTUAL BACKGROUND

The accident underlying this action occurred on December 20, 2004 at approximately 7:30 p.m. at the intersection of 42nd St and 8th Ave Manhattan. At that time, the plaintiff pedestrian was walking eastbound on 42nd St and the vehicle owned by defendant Tolentino, and operated by defendant Cerda, came into contact with him. Plaintiff fell to the ground, where he landed on his left side. Although an ambulance came to the scene of the accident he was not transported to any hospital.

Approximately 2 days after the accident he began treatment with Dr. Jean Daniel Fran§ois, at Canarsie Medical Health. At the time of his initial evaluation, plaintiff informed Dr. Fran§ois that he had injured his left wrist, lower back and left ankle a result of the accident, and [*2]that he had not returned to his job as a food manager at a Key Food Supermarket. Dr. Fran§ois placed him on a physical therapy regime consisting of hot packs, electrical stimulation and massage therapy. He also ordered him to undergo MRI tests. He had the plaintiff undergo NCS/EMG testing on at January 20, 2005 which was significant for a finding of lumbosacral radiculopathy. Dr. Fran§ois last saw the plaintiff on October 9, 2008, at which time the plaintiff complained of pain in his lower back, left wrist and left ankle. The doctor found that the plaintiff was morbidly obese (5'6" tall, 330 pounds) and walked with a cane. He found spasm, discomfort, and triggered pain, especially in the lumbosacral area upon deep palpation. As to the areas that the plaintiff claims to have injured, the doctor made the following findings with reference to ranges of motion. As to the left wrist he found flexion to 60ø (80ø normal) extension to 50ø (70ø normal) radial deviation to 20ø (20ø normal), and ulnar deviation to 20ø (30ø normal). As to the plaintiff's lumbar spine he found flexion to 75ø (90ø normal), extension to 25ø (30ø normal), right lateral flexion to 25ø (30ø normal), left lateral flexion to 25ø (30ø normal), right rotation to 25ø (30ø normal), and left rotation to 25ø (30ø normal). For the left ankle he found decreased range of motion only on plantar flexion, to 30ø (40ø normal). The doctor concluded that "in reviewing the history, complaints and with the current examination of this patient, in my opinion [the plaintiff] has permanent impairment in his physical condition, 10% to 15% total impairment. He will need physical therapy, analgesic, muscle relaxing it intermittently and orthopedic consultation".

In February of 2005 he saw an orthopedist, Dr. Joseph Paul. On his first visit with Dr. Paul, he complained of injury to his left wrist, lumbar spine, and left ankle. At the time of this initial examination, the doctor found left wrist tendinitis over the ulnar tendon, and decreased grip strength to 4/5 (normal 5/5); limited range of motion of the left wrist to 70ø on dorsiflexion (normal 90ø), supination to 70ø (normal 90ø) and palmer flexion to 60ø (normal 90ø). In plaintiff's lumbar spine, Dr. Paul founded spasm and tenderness over the paraspinal muscles, and decreased ranges of motion as follows: flexion to 25ø (normal 90ø), rotation at 35ø (normal 45ø), bending lateral left to 15ø (normal 45ø), bending lateral right to 15ø (normal 45ø) with straight leg raising positive at 45ø bilaterally (normal 90ø). The doctor also observed mild swelling at the anterior and lateral malleolus of the left ankle with tenderness and an "unspecified" limited range of motion.

On January 26, 2005, the plaintiff had an MRI of his left wrist which revealed a tear of the triangular fibrocartilage complex at the insertion of the ulnar styloid. On February 9, 2005 the plaintiff underwent an MRI of his lumbar spine which revealed a herniated disc at L5-S1.

Dr. Paul's initial treatment plan was to surgically debride the left wrist, have the plaintiff undergo physical therapy for his lumbar spine, and apply an air cast to the sprain of the plaintiff's left ankle. Dr. Paul saw him again on March 1, 2005, and the plaintiff continued to complain of severe pain and weakness of the left wrist. The doctor noted tenderness in the left wrist, and made the same the findings as to grip strength and ranges of motion as upon his initial evaluation. At this time, the plaintiff agreed to undergo the proposed surgery on his left wrist.

The surgery was performed on March 7, 2005. The doctor observed complete avulsion of the triangular fibrocartilage from the distal ulnar joint. The area was debrided and repaired. The [*3]plaintiff again saw Dr. Paul approximately 2 weeks after the accident, and his surgical wounds were noted to be healing although there was still moderate swelling over the left wrist, and tenderness with limited range of motion. He was told to begin physical therapy, at a frequency of three times per week. The plaintiff returned to Dr. Paul on May 3, 2005 complaining of lumbar pain, and mild pain to his left wrist, with ankle pain. The doctor noted that there was slight numbness at the ulnar of the left wrist, with mild tenderness and (an unspecified) limited range of motion of the left wrist. Range of motion in the left ankle was full.

The plaintiff did not see Dr. Paul again until August 28, 2008. At that time he complained to the doctor of numbness and cramping over the last two digits of the fingers of his left hand. The doctor's examination revealed diffuse swelling, stiffness and cramping over the dorsal aspect of the left hand; range of motion was limited at the MP joint at 75ø (90ø normal), IP joint at 70ø (90ø normal) pronation was 65ø (90ø normal), supination 65ø (90ø normal), dorsiflexion was to 55ø (normal 70ø), palmer flexion was to 65ø (normal 80ø) radial deviation to 10ø (20ø normal), ulnar deviation to 15ø (30ø normal), grip strength was 4/5 (normal 5/5). As to the plaintiff's lumbar spine, the doctor found spasm and tenderness over the paraspinal muscles, with the following decreased ranges of motion: flexion to 30ø (normal 90ø), rotation left 30ø (normal 45ø) bending lateral left 20ø (normal 45ø), bending lateral right 20ø (normal 45ø) and straight leg raising was positive bilaterally at 45ø (normal 90ø). The doctor found no loss of range of motion of the left ankle, nor any loss of muscle strength, although he did note some crepitus.

It was Dr. Paul's opinion that the plaintiff sustained serious injuries to his left wrist and lumbar spine as a result of the accident, that he has been unable to work since the accident.

On March 18, 2005, the plaintiff had applied for Social Security disability. Although initially denied, a hearing was eventually held on September 28, 2006 before Administrative Law Judge Leonard Yoswein. The plaintiff claimed that he was "disabled" for the purposes of the Social Security administration due to the following conditions: major depression, psychotic disorders, lower back injuries, hypertension, left wrist injury, and asthma and anemia. His decision was issued on September 29, 2006. He found that the plaintiff was disabled as of December 20, 2004 (the date of the motor vehicle accident), in that the plaintiff's claim of "Major Depression" satisfied the necessary clinical criteria. The administrative law judge indicated, however, that since that claim met the necessary criteria "it is unnecessary to determine whether any other of the claimant's impairments are also disabling".

CONTENTIONS OF THE PARTIES

Defendants claim that the plaintiff has not sustained a "serious injury" as that term is defined in §5102 of the Insurance Law. In support of their argument, they submit an affirmation from Dr. Audrey Eisenstadt, a radiologist who reviewed the MRI of the plaintiff's left wrist which was taken on January 26, 2005. In her affirmation, she indicated that she saw no abnormalities, and that, specifically the "triangular fibrocartilage appears intact". She also reviewed the MRI taken of the plaintiff's lumbar spine on February 9, 2005, and indicated that the only abnormality she saw was desiccation and bulging of theL5-S1 intervertebral disc. She stated that this desiccation is indicative of a "drying out of disc material, a degenerative process" which could not have occurred during the time period between the date of the accident and the [*4]date of the test, which was roughly 3 months. Therefore, she

concluded that any abnormalities on the film were not related to the accident.

The defendants also submit a radiological review of those same MRI films, conducted by Dr. David Fisher on April 18, 2007. With reference to the plaintiff's left wrist, Dr. Fisher concluded that the MRI found showed no abnormalities, and that therefore there was no traumatic or causally-related injury to the left wrist . As to the plaintiffs lumbar spine, he concluded that the MRI only showed degenerative changes at L5-S1 with accompanying disc bulge, but that this represented a condition that pre-existed the car accident, which had taken place seven weeks before the date the film was taken.

The defendants also submit the affirmation of Dr. Gregory Montalbano, an orthopedist who examined the plaintiff, at their request, on August 3, 2007. He noted by history that the plaintiff was a pedestrian who claims to have been knocked down by the defendant's vehicle as he was crossing the street; that he did not receive any treatment on the day of the accident, but, rather, went to a clinic the next day. The plaintiff indicated to him that he had sustained injuries to his left wrist, lower back and left ankle. At the time of the examination the plaintiff continued to complain of pain in the left wrist and lower back but indicated that his ankle "was better". He was continuing to receive treatment and evaluation by pain management, was getting trigger point injections for his lower back once a month, was taking for prescription medications, and utilized a cane to support his lower back as he walked.

The doctor performed an examination, and made the following findings with reference to the areas the plaintiff claims to have injured as a result of the accident. In the lumbar spine, the doctor noted no spasm or tenderness. He tested the plaintiff's ranges of motion and made the following findings: flexion to 30ø (normal 90ø), extension to 20ø (normal 30ø), right rotation to 45ø (normal 45ø, left rotation to 45ø (normal 45ø), left lateral bending to 20ø (normal 45ø), right lateral bending to 25ø (normal 45ø). The straight leg raising test was negative bilaterally.

In the left wrist, the doctor noted the plaintiff's healed surgical incisions. He also tested the ranges of motion and noted that palmer flexion was to 60ø (normal 60ø) extension to 70ø (normal 70ø), radial deviation to 20ø (normal 20ø), ulna deviation to 20ø (normal 20ø). As to the plaintiff's left ankle, he made no abnormal observations, nor were there any decreased ranges of motion.

As a result of his examination, the doctor concluded that the plaintiff did not sustain a serious injury as a result of the motor vehicle accident. As to the plaintiff's left wrist, he indicated that two radiologists (Dr. Eisenstadt and Dr. Fisher) found that the MRI test results were normal. Additionally, the operative report stated that there was a "complete avulsion of the triangular fibrocartilage complex" which Dr. Montalbano believed was inconsistent with the normal MRI report, and he further stated that a complex tear is consistent with degenerative changes and "suggests against acute injury". He also opined that "the possibility of a degenerative type tearing is consistent with his prior employment as a stock clerk in a supermarket, as well as working in a capacity for the unloading trucks". Consequently, the doctor believed any abnormality in the plaintiff's wrist was due to degeneration, and that, in any event, he had fully recovered from his subsequent surgery.

As to the plaintiff's lumbar spine he indicated that the results of the MRI were consistent with degeneration, as opposed to traumatic inducement. The doctor opined that the failure of the [*5]plaintiff to receive emergency care immediately after the accident also militated against a traumatic injury to his lumbar spine. The doctor believed that the plaintiff's current treatment, including trigger point injections and oral medications, were to treat a pre-existing condition of degenerative arthritis and degenerative disc disease, and were not due to any condition related to the accident.

Plaintiff alleges that he did, in fact, sustain a serious injury as a result of the underlying motor vehicle accident. He argues that the defendants have not even met their initial burden on the motion because the report from Dr. Montalbano indicates that in his examination of August 3, 2007, three years after the date of the accident, he made a positive finding on the Phalen's test of the left wrist which produced numbness in the plaintiff's fifth digit on his left hand. Further, Dr. Montalbano admitted that the plaintiff was taking medication with reference to the problems in his left wrist and was wearing a wrist support at the time of the examination. The plaintiff also contends that Dr. Montalbano's conclusion was couched in the uncertain terms, stating, for instance, that the plaintiff "appears" to have fully recovered from his left wrist surgery, and that he pointed to the "possibility of a degenerative type tearing". As to the plaintiffs lumbar spine, the plaintiff argues that even Dr. Montalbano found limitations on his range of motion on left lateral bending and right lateral bending, which would constitute objective findings. Dr. Montalbano also recognized that the plaintiff, at the time of the examination, was taking pain medication and muscle relaxants for his lumbar spine.

The plaintiff argues that the affirmations from his orthopedist, Dr. Joseph Paul, as well as his neurologist, Dr. Gene Fran§ois, indicate that the plaintiff continues to suffer from ongoing symptoms and disability, and that both of these doctors have been treating the plaintiff since shortly after the accident took place. Their opinions are based, the plaintiff argues, on objective tests and both are of the opinion that he has limitations due to the bulging disk located at L5-S1 as well as his surgically repaired tear in his left wrist.

Finally, plaintiff argues that he has been disabled since the day of the accident, and that the decision rendered by the administrative law judge in the Social Security administration indicates that he has been unable to work since December 20, 2004, the date of the accident. Therefore, plaintiff contends that a question of fact exists with reference to whether he may satisfy the "90/180 day" requirement of the no-fault Law.

APPLICABLE LAW

"Serious Injury"

Under the "no-fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained. (Licari v Elliot, 57 NY2d 230 [1982]).

The term "serious injury" is defined in § 5102 of the Insurance Law as follows: (d) "Serious injury" means a personal injury which results in death;dismemberment;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 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. ( [*6]emphasis added )

The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. (Alvarez v Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v. New York Un iv. Medical Center, 64

NY2d 851, 487 NYS2d 316 [1985]). In the present action, the burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury." (Lowe v. Bennett, 122 AD2d 728, 511 NYS2d 603 [1st. Dept. 1986], affirmed, 69 NY2d 701, 512 NYS2d 364 [1986].) When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts, and it is then incumbent upon the plaintiff to produce sufficient prima facie evidence in admissible form to support the claim of "serious injury ". (Licari, supra ; Lopez v. Senatore, 65 NY2d 1017, 494 NYS2d 101 [1985]).

The "Permanent Consequential" and "Significant Limitation" Categories

Claims of "serious injury" under the "permanent consequential limitation" category and under the "significant limitation" category, are the most difficult for trial and appellate courts to assess. These terms are not clearly defined and many times have been used interchangeably. The enabling legislation for the No-Fault Law itself provides little or no guidance to the bench and bar as to the scope of the terms used. For example, one should reasonably assume that the legislature sought to distinguish "significant limitations of a body function or system" from a "consequential limitation of a body organ or member". However, there appears to be no practical difference. Some courts have held that "consequential" means "significant" ( See, eg. Altman v. Gassman, 202 AD2d 265 [1st Dept. 1994]); and there are abundant cases in which all of the above terms (including body function, system, organ or member) are used interchangeably.

The guidelines, conditions and examples provided by the Court of Appeals in a series of decisions, including Toure ( cited , infra ) although very helpful, have not entirely unburdened the trial courts; and these serious injury claims continue to be the cause of incessant motion practice, and an abundant use of judicial resources at both the trial and appellate levels.

In an effort to assist the trial courts, and to better implement the "legislative intent... to weed out frivolous claims and limit recovery to significant injuries", the Court of Appeals, in Toure, infra, reviewed and discussed three cases in its decision reported at 98 NY2d 345 [2002]( Toure v. Avis Rent-A-Car; Manzano v. O'Neil; and Nitti v. Clerico ). However, the standards set in the Toure decisions have been inconsistently applied, and therefore trial courts are still left with uncertain guidance in determining motions for summary judgement on the No-Fault threshold.

For a full discussion of the manner in which the Toure standards have been inconsistently applied, see this Court's decision in (Vidal v. Maldonado, 2008 NY Slip Op 52432(U) December 8, 2008). [*7]

DISCUSSION

The court finds that the defendants have not met their prima facie burden of proof on the instant motion. The opinion by Dr. Montalbano, that the plaintiff did not sustain a "serious injury" to his left wrist as a result of the accident, was couched in uncertain terms such as that the plaintiff "appeared" to have fully recovered from his wrist surgery, and the further "possibility" that the degenerative condition in his left wrist was due to his prior employment. In any event, this opinion flies in the face of the results of the MRI taken of the plaintiff's wrist shortly after the accident, which demonstrated a tear of the fibrocartilage, which said that finding was corroborated when surgery was performed. Additionally, the court finds that Dr. Montalbano's opinion, as to the sole degenerative nature of the left wrist injury, is highly speculative given the lack of any evidence that the plaintiff had any complaints to his left wrist prior to the occurrence of the accident.

Additionally, the court finds that the reports submitted by two separate radiologists on the defendant's behalf reach conclusions that would seem to be disingenuous, at best. Specifically, the MRI of the plaintiff's wrist was originally read by Dr.Chess to reveal the above referenced tear in the plaintiff's wrist. Yet, the two radiologists retained by the defendants, Drs. Eisenstadt and Fischer, both affirmed that these MRIs were completely normal. However, when the surgery was conducted on the plaintiff's wrist shortly after the MRI was taken, the tear, as referred to by Dr. Chess, was clearly seen.

In short, the defendants have moved for summary judgment in a case where a pedestrian plaintiff was unquestionably struck by an automobile; promptly received medical treatment where he claimed injury to the same portions of his body that he is alleging to have hurt in this accident; underwent objective MRI testing shortly after the accident which revealed an injury to his left wrist as well as an abnormality in his lumbar spine; underwent surgery to repair the left wrist within three months of the happening of the accident; continued to make complaints of his wrist and lower back, which were supported by objective evidence, and at least to some degree, by the range of motion testing conducted by the defendants' own examining doctor. Under these circumstances, moving for summary judgment, and asking the court to make a determination that, as a matter of law, the plaintiff did not sustain a "serious injury" borders on the frivolous. It is well-known among the bench and bar that the vast majority of summary judgment motions brought in the Supreme Court deal with the issue of serious injury under the no-fault law. While all counsel have the obligation to zealously pursue the best interests of their clients in litigation, counsel must also be aware that bringing motions under circumstances such as in the present case, where it is abundantly clear that, at the very least, a question of fact exists as to whether the plaintiff sustained a serious injury, might well be considered to be an inefficient use of attorney time as well as of scarce judicial resources.

CONCLUSION

The motion for summary judgment is denied.

This constitutes the decision and order of the court. [*8]

Dated:____January 8, 2009____Paul A.Victor___________________

J. S. C.