Damas v Valdes

[*1] Damas v Valdes 2009 NY Slip Op 51070(U) [23 Misc 3d 1133(A)] Decided on June 2, 2009 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2009
Supreme Court, Kings County

Marie-Carmene Damas, Plaintiff,

against

Romann Valdes, RAYMOND S. GRAY and EXIDE TECHNOLOGIES, Defendants.



6080/07



Plaintiff Marie-Carmene Damas was represented by Mark J. Linder, Esq. of Harmon, Linder, & Rogowski, Esqs. Defendant Romann Valdes was represented by Francis M. Cerniglia, Esq. of the Law Office of Nancy L. Isserlis. Defendants Raymond S. Gray and Exide Technologies were represented by Charles R. Cordova, Esq. of Lawrence, Worden, Rainis & Bard, P.C.

Jack M. Battaglia, J.

Plaintiff Marie-Carmene Damas was represented by Mark J. Linder, Esq. of Harmon, Linder, & Rogowski, Esqs. Defendant Romann Valdes was represented by Francis M. Cerniglia, Esq. of the Law Office of Nancy L. Isserlis. Defendants Raymond S. Gray and Exide Technologies were represented by Charles R. Cordova, Esq. of Lawrence, Worden, Rainis & Bard, P.C.

On March 29, 2006, plaintiff Marie-Carmene Damas was a passenger in a vehicle owned and operated by defendant Romann Valdes, when the vehicle collided with a vehicle owned by defendant Exide Technologies and operated by defendant Raymond S. Gray. In her Verified Bill of Particulars, Plaintiff alleges, among other injuries, "premature labor." With her motion, she seeks a determination, pursuant to CPLR 3212, that she sustained a "serious injury" within the meaning of Insurance Law § 5102 (d) as a result of the March 29, 2006 accident.

Specifically, Plaintiff contends that she sustained "a medically determined injury or impairment of a non-permanent nature which prevent[ed] [her] from performing all of the material acts which constitute[d] [her] 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." (See Insurance Law § 5102 [d].) In support, she alleges in her Verified [*2]Bill of Particulars that she was "confined to bed for a period of approximately 15 weeks," and was "incapacitated from employment for 4 months."

Defendants oppose Plaintiff's motion, and each move, pursuant to CPLR 3212, for dismissal of the Verified Complaint on the ground that Plaintiff did not sustain a "serious injury" as a result of the March 29, 2006 accident, either on the basis asserted by Plaintiff, or on any other basis.

In support of her motion, Plaintiff submits her own Affidavit, the transcript of her examination before trial, and the Affirmation of obstetrician/gynecologist Jacqueline Ford, M.D. Plaintiff's Affidavit was executed and notarized in Georgia, and is not accompanied by a certificate of conformity required by CPLR 2309 ( c). (See Pra III, LLC v Gonzalez, 54 AD3d 917, 918 [2d Dept 2008].) No Defendant has, however, objected on that ground to consideration of the Affidavit. (See Matter of MBNA Am. Bank v Stehly , 19 Misc 3d 12, 13-14 [App Term, 2d Dept 2008].) The transcript of Plaintiff's examination before trial is certified by the reporter, but is not signed by Plaintiff. It is admissible on this motion, because, by submitting it herself, she has adopted it as accurate. (See Ashif v Won Ok Lee, 2008 NY Slip Op 9936, * 1 [2d Dept Dec 16, 2008].)

Plaintiff was 25 years old on the day of the accident, married, with two young daughters. She was employed as a secretary at Brookdale Hospital, and was on her way to Brookdale when the collision occurred, but not to work, rather to see Dr. Ford. She was approximately three months pregnant, with twins, and had seen Dr. Ford three times before the day of the accident. After the collision, she was taken to Brookdale by ambulance.

Plaintiff experienced "some contractions" at the scene of the accident (see Plaintiff's Examination Before Trial at 21), and was "contracting" at the hospital (see id. at 23.) She was released that day, after the contractions ceased. According to a report by Dr. Ford, incorporated with several others and "adopt[ed] . . . as accurate and true" in her Affirmation (see Cotto v JND Concrete & Brick, Inc., 41 AD3d 415, 415 [2d Dept 2007]; Lazu v Integral Truck Leasing, 292 AD2d 306, 307 [1st Dept 2002]; CPT Med. Servs. P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [App Term, 1st Dept 2007]), on the day of the accident, Plaintiff was determined to be "unable to work" and not expected to "be able to perform usual work" until May 18. In another report, Dr. Ford asserted that Plaintiff was "totally disabled (unable to work)" from March 29 to May 17, 2006.

On June 7, she was again determined to be unable to work, according to Dr. Ford's report, "because of preterm labor twin gestation." Under "Restrictions," Dr. Ford wrote "Bedrest Complete disability." It was estimated that she would deliver on October 14.

On July 9 or 10, however, Plaintiff returned to Brookdale; she was admitted, and remained until after the delivery of her twin daughters by emergency Cesarian Section on July 31. Dr. Ford's report of July 10 reports the diagnosis, "Preterm labor, Twin gestation." The twins [*3]remained in the hospital until September 10 and September 14, respectively.

In her Affirmation, Dr. Ford states, "Due to the injuries sustained in the car accident on March 29, 2006 Mrs. Damas experienced pregnancy complications and I prescribed her bed rest for the rest of her pregnancy for approximately six month [sic]."

Although not common, plaintiffs have been granted summary judgment determination of the "serious injury" issue. (See CPLR 3212 [e] ["summary judgment may be granted as to one or more causes of action, or part thereof, . . . to the extent warranted"]; Horton v Warden, 32 AD3d 570, 572-74 [3d Dept 2006]; Boorman v Bowhers , 27 AD3d 1058, 1059 [4th Dept 2006]; Hillman v Eick, 8 AD3d 989, 991 [4th Dept 2004].) At least one court has granted a plaintiff's threshold motion under the 90/180 days disability category. (See Deeks v Estate of Bass, 15 Misc 3d 1101 [A], 2007 NY Slip Op 50450 [U] [Sup Ct, Nassau County 2007].) If the plaintiff submits "admissible evidence demonstrating that she suffered a serious injury," the burden shifts to the defendant to submit "competent medical evidence demonstrating the existence of a triable issue of fact." (See Horton v Warden, 32 AD3d at 572.)

Here, Plaintiff submitted "competent medical evidence that [she] was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident." (See Olson v Russell, 35 AD3d 684, 696 [2d Dept 2006].) She also submitted "sufficient objective medical evidence relating [her] inability to work to the injuries allegedly sustained in the subject accident." (See Sougstad v Meyer, 40 AD3d 839, 840 [2d Dept 2006]; Gavin v Sati, 29 AD3d 734, 735 [2d Dept 2006].) Whether characterized as "pregnancy complications," as in Dr. Ford's Affirmation, or "preterm labor," as in her reports, Dr. Ford provides "sufficient objective evidence" to support her determination of disability, and to connect that disability to the March 29, 2006 accident. Contrary to Defendants' contention, it was not necessary, in the first instance, that Dr. Ford describe the precise physiological mechanism of causation, or the medical relationship between the diagnosed condition and her determination of disability.

If there is a question about the sufficiency of Plaintiff's prima facie showing, it would be whether she sustained a "medically determined injury or impairment" for purposes of the 90/180 days disability category of "serious injury." (See Spinrad v Gasser, 235 AD2d 687, 688-89 [3d Dept 1997].) Does "pregnancy complications" in the nature of "preterm labor" constitute an "injury or impairment" if they are not determined to hinder the plaintiff's ability to physically perform the tasks of her work, in this case as a secretary, but present a risk of harm to the plaintiff, or her fetus, or both, if the plaintiff continues to work?

In 1984, the No-Fault Law was amended to add "loss of a fetus" to the list of "serious injury" categories, thereby "overruling" a Third Department decision to the contrary. (See Gastwirth v Rosenberg, 117 AD2d 706, 706-07 [2d Dept 1986]; Raymond v Bartsch, 84 AD2d 60, 61-62 [3d Dept 1981].) Even after the amendment, however, because of limitations on a [*4]mother's claim for emotional distress as a result of a stillbirth (see Buzniak v County of Westchester, 156 AD2d 631, 632 [2d Dept 1989]), a defendant could contend that, although the loss of a fetus would constitute a "serious injury," the plaintiff was still required to prove a compensable "injury," i.e., an "independent physical injur[y]" (see id.), in order to recover. (See Doyle v Van Pelt, 189 Misc 3d 67, 68 [Sup Ct, Madison County 2001].) Although the contention was properly rejected (see id. at 69-70), the limitations on the mother's recovery were not definitively removed until the Court of Appeals held in Broadnax v Gonzalez (2 NY3d 148 [2004]) that "even in the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother, entitling her to damages for emotional distress" (id. at 155 [footnote omitted].)

Plaintiff is not, at least on this motion, claiming a "medically documented emotional trauma" as constituting the "medically determined injury or impairment" that would support a finding of 90/180 days disability (see Spinrad v Gasser, 235 AD2d at 688-89.) She testified at her deposition that she did not see a psychiatrist, psychologist, or therapist after the accident. Plaintiff does allege in her Bill of Particulars that she suffered depression, anxiety, fear, and "emotional upset and shock," but neither in her Affidavit nor deposition testimony is a connection made to the "pregnancy complications." Most importantly for this motion, Dr. Ford makes no specific reference to emotional harm and a connection to Plaintiff's "preterm labor."

The question becomes, then, whether "preterm labor" constitutes an "injury" for purposes of the 90/180 days disability category of "serious injury." The statute does not define "injury," and this Court has not found in the voluminous caselaw on "serious injury" any attempt to define "injury" judicially. The 1984 amendment to the statute, adding "loss of a fetus" as a category of "serious injury," could be argued as suggesting a legislative intent that nothing less will suffice. Or it could be seen as suggesting a legislative purpose to protect pregnancy. (See McKendry v Thornberry, 2009 NY Slip Op 29037, * 3- * 4 [Sup Ct, Rensselear County Mar 16, 2009] ["T]he intent of the Legislature relating to Insurance Law § 5102 [d] was to include pregnancies of any duration within the meaning of the phrase loss of fetus'."].) This Court adopts the latter suggestion.

In a report dated April 20, 2006, Dr. Ford included "threatened abortion." among her "Objective findings." Since "loss of a fetus" is a "serious injury," the "threatened" loss of a fetus is an "injury." When medically determined and related to a motor vehicle collision, and requiring complete bedrest for the statutorily-prescribed period to ensure the continuation of the pregnancy, such a threat to the continuation of the pregnancy qualifies as a "serious injury" under the 90/180 days disability category.

The Court concludes that Plaintiff has sufficiently established prima facie that she sustained a "serious injury" as a result of the March 29, 2006 collision.

In opposition, Defendants submit the affirmations of their respective counsel; defendants [*5]Gray and Exide Technologies add a report of ob/gyn Milton O.C. Haynes, M.D., who examined Plaintiff on January 29, 2009; defendant Valdes adds the report of ob/gyn Leonard M. Roberts, M.D., who examined Plaintiff on May 7, 2008, and a document apparently printed from the website of the National Organization of Rare Disorders.

Counsel's affirmations and the attached document address a condition called "hyperemesis gravidarum," which is noted in one of Dr. Ford's reports. Another of her reports notes only "hyperemesis." Counsel purport to describe the condition and its relevance to this motion, but neither attorney is shown to be competent to offer medical evidence (see Mustello v Szczepanski, 245 AD2d 553, 554 [2d Dept 1997]), and the attached document is clearly inadmissible hearsay (see Hinlicky v Dreyfuss, 6 NY3d 636, 645 [2006].) Perhaps most importantly, neither the report of Dr. Haynes nor the report of Dr. Roberts make any mention of the condition.

The report of Dr. Haynes is unsworn and unaffirmed, and, therefore, without any probative value. (See Washington v Mendoza, 57 AD3d 972, 973 [2d Dept 2008]; Pagano v Kingsbury , 182 AD2d 268, 270 [2d Dept 1992].) No excuse, "acceptable" or otherwise, is proferred for the failure to provide evidence in admissible form. (See Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) Dr. Haynes's report cannot raise a triable issue of fact.

The report of Dr. Roberts is affirmed in accordance with CPLR 2106. The report contains six substantive paragraphs. In four paragraphs, Dr. Roberts describes his review of the records of Brookdale Hospital and Dr. Ford, and his findings on examination of Plaintiff. "The general physical examination was normal. Pelvic examination revealed a normal vagina, clear normal cervix and normal pelvic viscera." In two paragraphs, he provides his opinion:

"It is my opinion that the premature labor and the emergency cesarian section of July 31, 2006, bears no relation to the MVA of March 29, 2006. There was no anatomic injury or elapsed [sic] between the MVA and the onset of premature labor.

"Premature labor and delivery is due to the increased distention of the uterus cavity which accompanies multifetal pregnancy."

Dr. Roberts cites to a professional journal article for this last statement, which appears to the unlearned mind as a statement that, generally, twins deliver early. The journal article is not provided, and it would, in any event, be inadmissible hearsay. Assuming that the article served as a basis for Dr. Roberts 's opinion as to lack of causation in this case, rather than merely an interesting statement of general fact, there is no showing that Dr. Roberts could rely on the article in forming his opinion. (See Wagner v Bradshaw, 292 AD2d 84, 89-91 [2d Dept 2001].)

There are additional difficulties with Dr. Roberts's report. It is not at all clear that Dr. Roberts is even addressing the "preterm labor" experienced by Plaintiff at three-months gestation, soon after the accident and during the following months, rather than the premature delivery on July 31. It is, therefore, only arguably relevant to the condition that has been found to be a [*6]medically determined injury for purposes of the "serious injury" threshold. The Verified Bill of Particulars alleges "premature labor," not premature birth.

Plaintiff cannot, of course, recover if her "pregnancy . . . and not any accident-producing injury was the medical reason for any limitation on her activities" after the accident. (See La Rue v Tucker, 247 AD2d 702, 704 [3d Dept 1998].) But Dr. Roberts's report does not raise a triable issue of fact that Dr. Ford's direction to Plaintiff that she not work and rest in bed, and the condition that prompted the direction, were not sufficiently causally related to the March 29, 2006 accident. Dr. Roberts "fail[s] to offer any facts or opinion showing any other possible origin or cause for [Plaintiff's] limitations other than the accident"; his opinion as to lack of causation is purely "speculative." (See Sullivan v Johnson, 40 AD3d 624, 624 [2d Dept 2007].)

Plaintiff having established prima facie that she sustained a "serious injury" under the 90/180 days disability category, and Defendants having failed to raise a triable issue in response, Plaintiff's motion must be granted.

Plaintiff's motion is granted; she need not at trial establish "serious injury" as defined in Insurance Law § 5102 (d) as a condition to damages for non-economic loss.

Defendants' respective motions are denied as moot.

June 2, 2009____________________

Jack M. Battaglia

Justice, Supreme Court