Rodriguez v Depauls

[*1] Rodriguez v Depauls 2009 NY Slip Op 50717(U) [23 Misc 3d 1112(A)] Decided on April 15, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2009
Supreme Court, Kings County

Pedro Rodriguez, Plaintiff,

against

Jose M. Depauls and Leader, Limousine Corp., Defendants.



2979/07

Francois A. Rivera, J.

Upon the foregoing papers, the motion by defendants Jose M. Depauls and Leader Limousine Corp. for an order, pursuant to CPLR 3212, granting summary judgement dismissing the complaint herein is granted.

This personal injury action arises out of a motor vehicle accident which occurred on June 18, 2006 when an automobile owned by Leader Limousine Corp. and operated by Jose M. Depauls struck plaintiff, a pedestrian.

In their motion, defendants assert that, as a result of the accident, plaintiff did not sustain a "serious injury" as that term is defined in Insurance Law §5102 (d) and, therefore, the complaint should be dismissed.[FN1] In support of their motion, defendants submit the affirmed report of Dr. Sarasavani Jayaram, a neurologist, who examined plaintiff at defendants' request on August 19, 2008. Defendants also submit the affirmed report of Dr. Audrey Eisenstadt, a radiologist who reviewed MRIs of plaintiff's cervical and lumbar spines which were taken on August 1, 2006, six weeks after the subject accident. In his report, Dr. Jayaram indicated that he used a handheld goniometer to measure all ranges of motion and [*2]that he also conducted other objective tests (i.e., Jackson's Compression Test, Valsalva Maneuver, etc.). According to Dr. Jayaram, all tests results were negative and plaintiff's ranges of motion was normal. In her report, Dr. Eisenstadt found that the MRI of plaintiff's cervical spine revealed "cervical straightening, a nonspecific finding, frequently related to patient position and comfort for the examination." She did not identify any bulging or herniated discs. With respect to the MRI of plaintiff's lumbar spine, she noted "normal lumbar alignment" and, likewise, no bulging or herniated discs. She opined that there was desiccation (drying out) of disc material, but that "could not have occurred in three months time" since the accident. Defendants also rely on plaintiff's deposition testimony to the effect that, at the time of the accident, he was a student and did not miss any time from work and was confined to his home for only seven days following the accident. Under the circumstances, defendants argue that they have met their burden of demonstrating that plaintiff did not sustain a "serious injury" as a result of the accident.

In opposition to the motion, plaintiff proffers the affidavits and/or affirmations of Dr. Jeff Mollins (a chiropractor), Dr. Harold Parnes (a radiologist) and Dr. Bhim Nangia (plaintiff's treating physician). In his affidavit, Dr. Mollins avers that he treated plaintiff from July 10, 2006 through December 11, 2006. At his initial examination on July 10, 2006, Dr. Mollins noted that plaintiff's movements in his spine "were all inadequate, very limited and painful" and he had limitations in his range of motion of 30-50%. According to Dr. Mollins, during the five-month course of his treatment, plaintiff was disabled due to a "medically and chiropractically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constitute such person's usual and customary activities." In his affirmation, Dr. Nangia states that he treated plaintiff for four months in 2006 and likewise found that plaintiff had a substantial (and quantified) limitation in the range of motion of his cervical spine. Finally, in his affirmation, Dr. Parnes confirms that he supervised the taking of plaintiff's MRIs in August 2006 and that he found several disc herniations and bulging discs.

In reply, defendants contend that plaintiff's own admissions show that he was not unable to perform substantially all of his usual and customary activities in the weeks following the accident. Defendants note, for example, that plaintiff did not miss any time from school and that he was only confined to his home for seven days. Defendants also fault plaintiff for failing to submit a current report from any of his physicians or for satisfactorily explaining the gap in his treatment.

In the context of a motion for summary judgment, "a defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined plaintiff and conclude[d] that no objective medical findings support the plaintiff's claim" of serious injury (Grossman v Wright, 268 AD2d 79, 83-84 [2000] [citation omitted]). Once the defendant has established a prima facie case that the plaintiff did not sustain a "serious injury," the [*3]burden shifts to the plaintiff to "come forward with admissible proof to raise a triable issue of fact" (Napoli v Cunningham, 273 AD2d 366 [2000] [citations omitted]).

In support of their motion, defendants submit the affirmed report of Dr. Jayaram who, after examining plaintiff, concluded that all of the injuries described in plaintiff's bill of particulars, if existing at any point, had been resolved and that plaintiff was in no need of further treatment. Defendants have thus satisfied their initial burden of establishing that plaintiff's injuries are not "serious" by submitting the sworn report of a medical expert who examined plaintiff in August 2008 and concluded that no objective medical findings support plaintiff's claim of permanent loss, permanent consequential limitation or significant limitation (see Grossman, 268 AD2d at 84 [2000]). Further, by plaintiff's own admission at his pre-trial deposition, he did not miss any time from school and was confined to his home for only one week. Therefore, it was incumbent upon plaintiff to come forward with admissible evidence to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955, 957 [1992]).

In his opposition papers, plaintiff submitted an affidavit of Dr. Jeff Mollins, a chiropractor, and an affirmation of Dr. Bhim Nangia, both of whom concluded, as the sole basis for satisfying the statutory serious injury threshold, that plaintiff was disabled due to "a medically and chiropractically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constitute such person's usual and customary and daily activities for not less than ninety days during the one hundred eighty days following the occurrence of the injury or impairment."[FN2] Here, it is undisputed that plaintiff, a student, missed no time from school following the accident and was confined to his home for only a few days. As such, he failed to establish a prima facie case that he sustained a medically-determined injury which prevented him from substantially performing his usual and daily activities for any appreciable part of the 180 days after the accident (see Burns v McCabe, 17 AD3d 1111 [2005]; Feeney v Klotz, 309 AD2d 782 [2003]; Crespo v Kramer, 295 AD2d 467, 468 [2002]). Accordingly, the motion by defendant is granted and the complaint herein is dismissed.

The foregoing constitutes the decision, order and judgment of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Insurance Law § 5102 (d) defines "serious injury," in relevant part, as follows: 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 and eighty days immediately following the occurrence of the injury or impairment.

Footnote 2:Even had the doctors referred to other categories of "serious injury", because their findings were not based upon recent examinations, a triable issue of fact would not have been raised as to those categories. (see Landicho v Rincon, 53 AD3d 568 [2008]; Ali v Mirshah, 41 AD3d 748 [2007]).