O'Hare v Margaret St. Louis

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[*1] O'Hare v Margaret St. Louis 2009 NY Slip Op 50635(U) [23 Misc 3d 1108(A)] Decided on April 13, 2009 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2009
Supreme Court, Richmond County

Michael O'Hare, Plaintiff,

against

Margaret St. Louis, Defendant.



100997/08

Philip G. Minardo, J.



Upon the foregoing papers, defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined by Insurance Law §5102(d) is granted, and the complaint is dismissed.

Plaintiff commenced this action to recover damages for injuries allegedly sustained when the vehicle he was operating was struck by a vehicle operated by defendant MARGARET ST. LOUIS. As a result of said accident, plaintiff claims to have sustained, inter alia, focal central disc herniation at the L4-L5 level; disc bulge at the L5-S1 level; disc bulges at the C3-C4 and C5-C6 levels; post-contusion disorders, shock, multiple contusions; abrasions, ecchymosis and internal organ damage. These injuries are alleged to have adversely affected the nerves, tendons, blood vessels, ligaments, cartilage, bones and soft parts in and about the sites of the above-described injuries. Plaintiff further alleges that the above injuries cause him to suffer pain, stiffness, atrophy, contractures, weakness, digestive reaction, limb atrophy and partial restriction of motion in the injured areas. He also claims that pain becomes more frequent and intense upon exertion, excessive use, changes of weather, and standing or walking for long periods of time, and that these injuries interrupt his normal activities and enjoyment of life. According to plaintiff, he was confined to bed for one week following the subject accident, but returned to work the next week. It is claimed by plaintiff that these injuries and/or their residuals are permanent and/or lasting in nature, and he remains partially incapacitated from his employment and certain other activities in which he regularly engaged.

In moving for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law §5102(d), defendant submits the affirmed report of an orthopedic surgeon, Dr. Anthony Spataro, who examined the plaintiff and reviewed MRIs and x-ray reports of plaintiff's lumbar and cervical spine and hips, as well as the medical records of his treating physician. Upon objective testing, Dr. Spataro observed a five-ten degree restriction in plaintiff's flexion, extension and rotation of the cervical and thoraco-lumbar [*2]areas. Nevertheless, he reported normal motor function at all extremities, no atrophy or change in muscle tone or size, and no spasticity, clonus or tremors when palpated. Straight leg raising was negative, as was the LaSague sign, Kemp's test, Eli's test and Sperling maneuver. According to Dr. Spataro, plaintiff ambulated with a normal gait and exhibited full range of motion of the hip, both actively and passively. As a result, Dr. Spataro concluded that plaintiff had suffered status post sprain of the cervical and lumbar spine and both hips, which injuries had resolved. He further concluded that plaintiff needs no further orthopedic treatment or physical therapy; suffers no orthopedic disability; and may continue his normal job without restriction.

Defendant also submits an unaffirmed report of a radiologist, Dr. David Ludwig, reporting the results of x-rays taken of plaintiff's cervical and lumbar spine and hip on February 20, 2008, just two weeks following the subject accident. According to this doctor, there were no remarkable findings on either the cervical or lumbar spine, and only hypertrophic changes from the left hip joint with no obvious fractures or dislocations. However, he did note extra bony density from the lateral aspect of the right iliac wing inferiorly, which may have resulted from an old fracture.

Finally, defendant asserts that plaintiff suffered a prior injury to his neck and dislocated his right shoulder while working as a police officer for the New York City Police Department in 1992, and that he was still being treated for those injuries at the time of the subject accident.[FN1] According to defendant, these injuries interrupt the chain of causation between the subject accident and plaintiff's claimed injuries, requiring dismissal of the complaint. Defendant also contends that there is no proof that plaintiff's activities were substantially curtailed. While plaintiff testified at his EBT that his ability to jog, play basketball and golf have each been affected by his alleged injuries, he also acknowledged that he was never told by a physician that he could not participate in any of these activities.

In opposition, plaintiff submits the affirmation of a radiologist, Dr. Allen Rothpearl, who reported on the findings of plaintiff's lumbar and cervical MRIs taken one month following the accident on March 6, 2008. Dr. Rothpearl reported focal central disc herniation at the L4-L5 level, a disc bulge at the L5-S1 level, and disc bulges at the C3-C4 and C5-C6 levels.

Plaintiff also submits the affirmation and medical records of his attending physician, Dr. Kevin Weiner, who treated plaintiff both before and after the subject accident. With regard to this accident, it appears that plaintiff presented to Dr. Weiner's office only four days thereafter complaining of, inter alia, increased pain to his neck and lower back. Upon examination and testing, Dr. Weiner reported limited range of motion of the cervical and lumbar spine; severe discomfort of the thoracic spine; limited range of motion of the hips and tenderness to palpation. The doctor recommended that x-rays and MRIs be taken, and ordered plaintiff to undergo a course of physical therapy and trigger point injections. The MRIs of plaintiff's cervical and lumbar spine subsequently revealed both disc herniations and disc bulges. Dr. Weiner has continued treating plaintiff, who reported increased pain and numbness, and continued to exhibit limited range of motion. According to Dr. Weiner, despite physical therapy, exercise and trigger [*3]point injections, plaintiff continues to experience pain, restrictions in his range of motion and tenderness upon palpation. In his opinion, plaintiff's injuries are permanent and causally-related to the subject accident. Dr. Weiner further opines that plaintiff has incurred a significant limitation of his spinal system resulting in significant decreases in range of motion and associated pain.

Plaintiff also relies on excerpts from his EBT in which he explained that he can no longer participate in physical activities such as jogging, playing basketball with his daughter and golfing. Plaintiff contends that the injury to his shoulder is seventeen years old and not relevant to the injuries he is claiming as a result of the subject accident.

It is well established that a plaintiff seeking to recover damages for personal injuries sustained in an automobile accident is required to plead and prove that he or she has sustained a "serious injury" as defined in Insurance Law §§5102(d) and 5104(a) (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 [determination] where the injury is clearly a minor one would perpetuate a system of unnecessary litigation" (id. at 237). On a motion for summary judgment in such a case, a defendant challenging the extent of plaintiff's injuries must establish prima facie that plaintiff has not sustained a serious injury, and may submit in support the affirmations of medical experts who have examined plaintiff and found no objective medical evidence to support plaintiff's claim (see Grossman v. Wright, 268 AD2d 79, 83-84). However, once a prima facie case has been established, the burden shifts to plaintiff to raise a triable issue on the seriousness of his or her injury (see Gaddy v. Eyler, 79 NY2d 955).

Here, it is the opinion of this Court that defendant has satisfied her burden of establishing that plaintiff did not sustain a serious injury (see Toure v. Avis Rent A Car Sys., 98 NY2d 345). Defendant submitted an affirmed report of an orthopedist containing objective medical evidence indicating that while plaintiff may have suffered cervical and lumbar sprain in the subject accident, they have since resolved and plaintiff currently suffers no orthopedic disability; that he is fully capable of functioning normally; and that he needs no further treatment. While this doctor indicated that plaintiff exhibited what appears to be a 5-10 degree limitation of the cervical and thoracic-lumbar spine on extension and lateral flexion, he attributed no significance to these findings as all of the other objective testing was negative.

In opposition, plaintiff has failed to raise a triable issue of fact. While the MRIs of plaintiff's cervical and lumbar spine may show herniating and bulging discs, these do not, standing alone, establish a serious injury (see Kearse v. New York City Tr. Auth., 16 AD3d 45). Similarly, "[p]roof of herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations is not alone sufficient to establish a serious injury" (Pommells v. Perez, 4 NY3d 566, 574).

Plaintiff's medical evidence in this case includes the affirmation and medical records of Dr. Weiner, who reported that as of the date of his last examination, i.e., September 16, 2008, plaintiff still exhibited limited range of motion of the cervical spine, and still requires trigger point injections into the upper trapezius, serratus posterior and rhomboids. It is worth noting, however, that plaintiff's expert failed to list any objective testing performed by him, and while he purports to quantify plaintiff's restrictions of motion, he fails to correlate these findings with normal movements (see Claude v. Clements, 301 AD2d 554, 555; Kauderer v. Penta, 261 AD2d [*4]365, 366). Moreover, while defendant's expert did confirm some degree of limitation, he did not find it to be significant, nor did plaintiff's expert establish that these purported limitations were "significant" for purposes of meeting the threshold requirement of Insurance Law §5102(d), which requires an evaluation of the extent to which they affect plaintiff's ability to perform his usual and customary activities. In order to demonstrate that an injury constitutes a "significant limitation of use of a body function or system" or a "permanent consequential limitation of use of a body organ or member", it is well settled that a plaintiff is required to establish more than "a mild, minor or slight limitation of use" (Mikl v. Shufelt, 285 AD2d 949, 950 [internal quotation marks omitted]; see Licari v. Elliott, 57 NY2d at 236). In this regard, there is no proof before the Court that plaintiff's purported 5-10 degree limitations in his range of motion are "significant" (see Gaddy v. Eyler, 167 AD2d 67, affd 79 NY2d 955; see also Waldman v. Chang, 175 AD2d 204).

With regard to plaintiff's claim that he was unable to perform "substantially all of the material acts which constitute his usual and customary activities for not less than 90 days during the 180 days immediately following [the accident]", it is well settled that the words "substantially all" requires that a plaintiff be curtailed from performing his usual and customary activities to a great extent rather than some slight curtailment (see Licari v. Elliott, 57 NY2d at 236). Here, plaintiff indicated that he was able to return to work one week following the accident. Moreover, there is no medical evidence before the Court that he has was subsequently unable to maintain his daily work routine, or to perform any of his other customary daily activities during at least 90 out of the first 180 days following the subject accident. The fact, if true, that he could no longer participate in a few named sporting activities does not constitute the curtailment of "substantially all" of plaintiff's usual activities as required by the Insurance Law (id.).

Similarly, plaintiff cannot sustain his claim under the "permanent" loss category of serious injury, as there is no proof of any "total" loss of use of a body organ, member, function or system (see Oberly v. Bangs Ambulance, 96 NY2d 295, 297, 299).

Finally, the mere fact that plaintiff's expert may have described his present condition as "permanent" and "causally related" to the subject accident, does not, without more, establish a "serious injury". Objective medical evidence supportive of that conclusion is required in order to avoid summary judgment (see Lopez v. Senatore, 65 NY2d 1017).

Accordingly, it is

ORDERED that defendant's motion for summary judgment dismissing the complaint 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. MinardoJ.S.C.

Dated: April 13, 2009 Footnotes

Footnote 1: Plaintiff retired from the New York City Police Department in 1994 as a result of this injury and is currently employed at an electrical supply company where he is responsible for ordering supplies.



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