Barskaya v Iacono

[*1] Barskaya v Iacono 2009 NY Slip Op 50075(U) [22 Misc 3d 1110(A)] Decided on January 16, 2009 Supreme Court, Richmond County Minardo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 21, 2009; it will not be published in the printed Official Reports.

Decided on January 16, 2009
Supreme Court, Richmond County

Svetlana Barskaya, Plaintiff,

against

Ralph Iacono, Jr., RALPH IACONO, LUCILLE H. CORWIN and JAMES CORWIN, Defendants.



100252/07

Philip G. Minardo, J.

Upon the foregoing papers, the cross motion for summary judgment (No. 2764) of defendants RALPH IACONO, JR. and RALPH IACONO is denied.[FN1]

Plaintiff commenced this action to recover damages for injuries allegedly sustained on April 30, 2005 when the vehicle she was driving was struck in the rear by a vehicle owned by defendant JAMES CORWIN and operated by defendant LUCILLE H. CORWIN. Insofar as it appears, the CORWIN vehicle was propelled into plaintiff's vehicle when the former was struck from behind by a vehicle driven by defendant RALPH IACONO, JR., and owned by his father, RALPH IACONO (hereinafter defendants). As a result of said accident, plaintiff claims to have sustained, inter alia, disc bulges at L4-5 and C6-7; radiculopathy; thoracic sprain/strain; right shoulder sprain/strain; muscle spasm and aggravation of a prior neck injury. It is further alleged that plaintiff continues to suffer pain and discomfort which have affected her general health and well-being, and interfere with her vocational, social and recreational activities. She also claims that she was incapacitated from performing certain of her duties at work for a period of one year, and is still partially incapacitated relative to her work.

To the extent relevant, defendants' cross motion for summary judgment is predicated on the ground that plaintiff did not sustain a "serious injury" as defined by Insurance Law §5102(d). In this regard, the IACONOS have adopted the same arguments in support of their threshold motion as those tendered by the CORWINS in their subsequently-withdrawn motion for summary judgment (see footnote1).

In support of their claim that plaintiff did not sustain a serious injury, defendants submit a copy of plaintiff's EBT testimony in which she testified that she declined medical treatment immediately following the accident; that she drove her car home after the accident; that she did not seek treatment until several days thereafter, when she presented to her family physician, Dr. Belder, at her place of employment, Manalapan Medical PC; and that she received physical therapy thereat until November 2005. Plaintiff also testified that she only missed one day of work as a result of the subject accident, and acknowledged that she had sustained a prior neck injury in 1994 which required the surgical fusion of two discs in her neck.

Defendants also submit the affirmed report of an orthopedic surgeon, Dr. Andre Weiss, who both examined plaintiff and reviewed her medical records before concluding that she has full range of motion in her neck and back, and no orthopedic disability. According to Dr. Weiss, while [*2]plaintiff complained of tenderness in her cervical spine, there was no spasm detected upon palpation; deep tendon reflexes at both her elbows were within normal limits; motor strength at both her shoulders, elbows, wrists, and hands were also within normal limits; and a foraminal compression test was negative. With regard to the right shoulder, the doctor opined that muscle strength was normal; there were no areas of tenderness; and plaintiff's impingement sign and apprehension test were both negative. As for the lumbar spine, while plaintiff exhibited tenderness at L1-L5, no spasm was noted; no sciatic notch tenderness was noted; and Straight leg raising and Faber tests were each negative. In sum, Dr. Weiss concluded that plaintiff had suffered a right shoulder sprain, and sprains to her cervical and lumbosacral spines, but that objective clinical criteria indicated that all of these conditions had resolved. Dr. Weiss further concluded that there was no evidence of cervical radiculopathy. Finally, the doctor stated that plaintiff may continue working full-time at her current occupation without restriction, and is capable of participating in all of the normal activities of daily living.

Defendants also submit the affirmed report of Dr. Wendy Cohen, who conducted a neurological examination of plaintiff and found, inter alia, that there was no cervical or thoracic spasm. In addition, she found that plaintiff exhibited full cervical and lumbar ranges of motion upon flexion, extension, right and left bending, and bilateral rotation. According to Dr. Cohen, plaintiff's condition at the time of her examination revealed status post cervical, thoracic and lumbar strains/sprains, all of which had resolved, and no neurological disability. The doctor opined that plaintiff could continue to work in her current occupation as office manager/billing manager without restriction, and perform all the usual activities of daily living. Dr. Cohen further opined that plaintiff needs no further neurologic treatment, diagnostic testing or physical therapy.

Finally, defendants submit the affirmed report of a radiologist, Dr. Audrey Eisenstadt, who reviewed the cervical MRI taken of the plaintiff on June, 14,2005, some 1 ½ months following the subject accident. According to Dr. Eisenstadt, the cervical MRI revealed degeneration at the C4-5 intervertebral disc level, and no evidence of post-traumatic injury. Opining that the observed drying- out and loss of disc substance could not have occurred in less than six months, the doctor noted that the observed condition was indicative of pre-existing degenerative disease. No bulging discs or herniations were identified. Dr. Eisenstadt further stated that artifacts from a prior surgery were observable in the soft tissue in the region of the C4-5, C5-6 and C6-7 intervertebral discs, and that they could not be causally related or associated with the subject accident. The June 27, 2005 MRI of plaintiff's lumbar spine was also reviewed, and said to be completely normal.[FN2]

In opposition, plaintiff contends that there is sufficient proof to substantiate her claim of serious injury under the "permanent and consequential limitation" category of the Insurance Law to defeat summary judgment. In support, plaintiff submits the affidavit of Dr. Olga Belder, who has been treating plaintiff since the accident, and also conducted a recent examination. Dr. Belder states that plaintiff initially presented to her office several days after the subject accident with complaints of pain and stiffness in her neck; pain radiating to both shoulders; numbness, tingling and burning on the surface of her right arm; right arm weakness; lower back pain; lumbar pain radiating to both legs; headaches, dizziness and nausea. Plaintiff also indicated to Dr. Belder that she experienced pain when going up and down stairs; bending down; walking; lifting and carrying heavy objects; as well as prolonged sitting. Upon her examination, Dr. Belder reported cervical and lumbar tenderness; muscle spasms; limited cervical and lumbar ranges of motion upon flexion, lateral rotation and bending; and positive Straight-leg raising. On this basis, Dr. Belder concluded that plaintiff had sustained acute cervical, lumbar and thoracic strain/sprain, as well as possible cervical [*3]and lumbar radiculopathy. According to Dr. Belder, MRIs of plaintiff's lumbar and cervical spine confirmed a C6-7 disc bulge, muscle spasms, and disc bulges at L4-5. Dr. Belder also noted that electro-diagnostic studies conducted by her revealed cervical and lumbar radiculopathy. Plaintiff received physical therapy from Dr. Belder, continuing such treatment until November, 2005. At that time, the doctor opined that given plaintiff's limited response to treatment and the amount of time that had passed since the date of the accident, she had reached a "plateau", and would no longer benefit from further treatment. Accordingly, Dr. Belder discharged plaintiff from treatment and advised her to (1) continue with a home exercise program, and (2) avoid all activities that might aggravate her condition.

In her recent examination, Dr. Belder found that plaintiff continues to experience limited cervical and lumbar ranges of motion, all of which were quantified and compared to normal ranges. She also reported cervical and lumbar tenderness and muscle spasms. According to the doctor, while plaintiff had sustained a prior injury in 1994, which resulted in surgery, the present C6-7 disc bulge in her cervical spine, her cervical radiculopathy, and the cervical pain and restrictions in motion that she currently experiences are all causally related to the subject motor vehicle accident. In explication, Dr. Belder noted that the prior injury consisted of a fracture of plaintiff's C4-5 vertebrae, whereas the current injury is to the C6-7 disc. In addition, the doctor reported that plaintiff had not suffered from any significant pain or limitation in her cervical spine for many years prior to the subject accident; had been working full-time; and had been able to engage in her normal daily activities without complaint until the 2005 accident. In addition, since plaintiff had previously suffered no injury to her lumbar spine, the disc bulges at L4-5 moderately impressing on the anterior thecal sac, as well as her lumbar radiculopathy, lumbar pain, and limited range of motion are all casually related to the subject accident.

Also submitted by plaintiff are the affirmed reports of the radiologists (Dr. John Lyons and Dr. Natalio Damien, Jr.) who performed plaintiff's cervical and lumbar MRIs in June, 2005. In contrast to defendants' physicians, these doctors reported (1) a C6-7 disc bulge and muscle spasm, and (2) a disc bulge at L4-5 moderately impressing on the anterior thecal sac. Plaintiff has also submitted the affirmed report of Dr. Larisa Likver, by whom she was subjected to neurological and electro-diagnostic testing. As a result, Dr. Likver reported denervation in plaintiff's right C6-7 cervical paraspinal muscles and triceps, which is consistent with C6-7 cervical radiculopathy on the right. Finally, plaintiff has submitted her own affidavit in which she states that although she underwent physical therapy and was prescribed therapeutic devices and at-home exercises, she continues to experience significant pain, discomfort and limitations from the injuries she sustained in the subject accident. After eight months of physical therapy and rehabilitative treatment, plaintiff states that she was discharged by her physician as having reached the maximum benefit from treatment. According to plaintiff, her current symptoms continue to limit her ability to perform many routine activities, and she can no longer participate in aerobics exercises. She also experiences pain from prolonged sitting, standing and working on the computer at work. Plaintiff reports that she had recovered fully from her 1994 injury and surgery, and rarely felt discomfort in her neck prior to the 2005 collision. However, such discomfort became significantly worse after the subject accident, and she now reports experiencing strong neck and back pain; significant limitations in her range of motion; and numbness and tingling in her extremities.

As previously noted, following the submission of these motions, plaintiff discontinued her action against defendants JAMES CORWIN and LUCILLE H. CORWIN, who have since withdrawn their motion for summary judgment. Nevertheless, the action continues against defendants RALPH IACONO JR. and RALPH IACONO, who have cross-moved for dismissal on the "serious injury" issue.

It is well established that in order to grant summary judgment is must clearly appear that no material and triable issue of fact is presented. Issue-finding rather than issue-determination is the key to the procedure (see Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Because summary judgment is the procedural equivalent of a trial, the presence of any significant doubt as to whether there is a material issue of fact, or where an issue of fact is "arguable", the [*4]motion must be denied (see Phillips v. Kantor & Co., 31 NY2d 307). Thus, a defendant moving for summary judgment based on the absence of "serious injury" must make a prima facie showing that plaintiff did not sustain a serious injury as a result of the underlying collision. Once this is established, it becomes plaintiff's burden to come forward with sufficient evidence to raise a triable issue of fact on "serious injury" or the action will be dismissed (see Gaddy v. Eyler, 79 NY2d 955).Here, it is the opinion of this Court that defendants have successfully met their evidentiary burden by submitting the affirmed report of an orthopedic surgeon, Dr. Andre Weiss, who examined plaintiff and concluded that there was no evidence of an orthopedic disability with regard to her cervical or lumbar spine as a result of the subject accident. While this doctor noted that plaintiff had initially suffered cervical and lumbar sprain/strain, he also reported that these conditions had resolved. Dr. Weiss also reported that plaintiff has full range of motion. No spasms were detected by Dr. Weiss, nor did he find any evidence of cervical radiculopathy. According to this doctor, plaintiff can continue in her current employment full-time, and may continue with the activities of daily living without restriction.

In addition, the affirmed report of Dr. Wendy Cohen states that plaintiff suffers no neurological disability, exhibits no spasms, and has full range of motion in all aspects. This doctor also opined that plaintiff may continue working without restriction in her current employment and may fully participate in the usual activities of daily living. Finally, the affirmed report of defendants' radiologist, who reviewed the films of plaintiff's MRI of the cervical and lumbar spines, maintain that plaintiff suffered from preexisting disc degeneration at the C4-5 level, and that this injury was neither caused or related to the subject accident. This conclusion was objectively based on the drying-out and loss of disc substance, which the doctors related could not have occurred within the six months by which the accident preceded the MRIs. No bulging discs or herniations were identified by this doctor, who also stated that plaintiff's lumbar MRI showed no post-traumatic abnormalities.

In the opinion of this Court, this proof is wholly satisfactory to establish prima facie that plaintiff did not suffer a serious injury as a result of this accident. Nevertheless, the cross motion for summary judgment must be denied.

Here, plaintiff has successfully rebutted defendants' prima facie showing by producing objective medical evidence sufficient to raise a triable issue of fact regarding her claim of serious injury. In particular, plaintiff has submitted physicians' affidavits which clearly set forth the results of their objective testing of plaintiff's cervical and lumbar spines, that revealed quantified deficits in range of motion as compared to normal (see Privitera v. Brown, 28 AD3d 733). In addition, while proof of plaintiff's herniating and bulging discs would be insufficient standing alone to establish serious injury, the objective medical evidence submitted by her physicians raises triable issues of fact regarding both the extent, degree and duration of the limitations noted (cf. Mariaca-Olmos v. Mizrhy, 226 AD2d 437; Flanagan v. Hoeg, 212 AD2d 756).Furthermore, plaintiff's physicians indicated that her claimed injuries were consistent with her continued cervical and lumbar pain, as well as her current restriction of motion. Finally, plaintiff's own affidavit attesting to the persistent pain and compromised lifestyle that she continues to experience since the subject accident finds support in her medical evidence.

While the parties' experts clearly disagree with respect to their reading of plaintiff's MRIs, the presence or absence of herniating and bulging discs, the effects of her prior surgery, and the alleged degenerative condition in her cervical spine, the credibility of these experts is not an issue to be determined on a summary judgment motion (see Rapaport v. Sears, Roebuck & Co., 28 AD3d 449, 450). Accordingly, plaintiff has submitted sufficient proof to raise triable issues of fact regarding the "significant limitation of use of a body function or system" (see Insurance Law §5102[d]).

As for plaintiff's claim under the "permanent loss of use"category, however, there is no proof that the subject accident caused her to sustain a "total" loss of use of any body organ, member, function or system as required by under this species of "serious injury" (see Oberly v. Bangs Ambulance, 96 NY2d 295, 299). Similarly, plaintiff has failed to establish that she was unable to [*5]perform substantially all of her customary and usual daily activities during at least 90 of the first 180 days following this collision. In this regard, the Court notes that plaintiff was apparently able to return to work one day after the subject accident, and has failed to adduce any medical evidence that she was prevented from performing the greater part of her normal daily activities during the first 90 days after the accident at issue (see Palmer v. Moulton, 16 AD3d 933, 935).Accordingly, plaintiff's claim of injury under these two categories may not be considered at trial.

Accordingly, it is

ORDERED that the cross motion for summary judgment of the remaining defendants, RALPH IACONO, JR., and RALPH IACONO, is denied.

This shall constitute the Decision and Order of the Court.

E N T E R,

s/ Philip G. Minardo

J.S.C.

DATED: January 16, 2009 Footnotes

Footnote 1: Plaintiff having discontinued the action as against defendants JAMES CORWIN and LUCILLE H. CORWIN, their motion for summary judgment (No.2579) has been withdrawn.

Footnote 2: On the issue of liability, the CORWIN defendants contended that the evidence showed that their vehicle was stopped behind plaintiff's vehicle at a red light when it was struck from behind by the IACONOs' vehicle, and that this impact caused CORWIN to strike plaintiff's vehicle. CORWIN's claim to have been stationary and the middle vehicle in this chain-reaction collision has not been controverted by either the plaintiff or the IACONO defendants.