Edey v Dreamon Limo Inc.

[*1] Edey v Dreamon Limo Inc. 2009 NY Slip Op 51204(U) [23 Misc 3d 1140(A)] Decided on June 12, 2009 Supreme Court, Kings County Demarest, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2009
Supreme Court, Kings County

Eudine Edey, Plaintiff,

against

Dreamon Limo Inc., et al., Defendants.



2180/05



Attorney for Plaintiff

Debra J. Millman, Esq.

Debra J. Millman, P.C.

60 East 42nd Street, Suite 2515

New York, NY 10165

Attorney for Defendant Leo Morris Inc

Jonathan Gorham, Esq.

Cohen, Kuhn & Associates

Two Park Avenue, 6th Floor

New York, NY 10016

Attorney for Defendants Dreamon Limo Inc. and Pablo Rodriguez

Carol DiBari, Esq.

Baker, McEvoy, Morrissey & Moskovits, P.C.

330 West 34th Street

New York, NY 10001

Carolyn E. Demarest, J.

Upon the foregoing papers in this action by plaintiff Eudine Edey (plaintiff) to recover damages against defendants Dreamon Limo Inc. (Dreamon), Pablo Rodriguez (Rodriguez), and Leo Morris, Jr. (Morris) (collectively, defendants), [*2]Dreamon and Rodriguez move[FN1] for summary judgment dismissing plaintiff's complaint as against them based upon the ground that plaintiff has failed to meet the "serious injury" threshold required pursuant to Insurance Law § 5102 (d) and § 5104 (a).

At approximately 10:00 p.m. on March 12, 2004, Rodriguez was driving in a motor vehicle, owned by Dreamon, when it collided with a motor vehicle, owned and operated by Morris, on Rockaway Avenue at or near its intersection with Linden Boulevard, in Brooklyn, New York. Plaintiff was a front seat passenger in Morris' motor vehicle. Following the accident, plaintiff was taken by ambulance to Brookdale Hospital's emergency room, where she complained of chest pains. After plaintiff was examined in the emergency room, she was given Tylenol and released.

According to plaintiff, she subsequently went to First Avenue Medical Center on March 15, 2004 for physical therapy (which consisted of heat and acupuncture) three times a week for five months. Plaintiff also asserts that she saw a psychiatrist six times and was prescribed Zoloft, which she took for a few days. Plaintiff claims that she has pain in her back and, occasionally, in her neck, and that she still takes Flexeril, a pain medication, prescribed by her primary doctor, due to pain as a result of the accident.

On January 25, 2005, plaintiff filed this action against defendants, alleging that the accident was caused by defendants' negligence and seeking to recover $750,000 in damages for her bodily injuries. Defendants have interposed their respective answers, and, following discovery, plaintiff filed a note of issue.

In addressing Dreamon and Rodriguez's motion, the court notes that under the No-Fault Law, in order to maintain an action to recover damages for non-economic loss, i.e., pain and suffering, arising out of a motor vehicle accident, a plaintiff must establish that he or she sustained a "serious injury" as defined by Insurance Law § 5102 (d) (see Insurance Law § 5104 [a]; Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Lopez v Senatore, 65 NY2d 1017, 1019-1020 [1985]; Licari v Elliott, 57 NY2d 230, 237 [1982]).

Plaintiff's bill of particulars alleges that she sustained the following injuries: impingement syndrome of the right shoulder with tendonitis; internal derangement of the lumbosacral spine with central posterior disc herniation at L5-S1 with impingement upon the theral sac; internal derangement of the cervical spine with multiple disc herniation at level C3/C4, C4/C5, and C5/C6 with encroachment and radiculopathy; right carpal tunnel syndrome; multiple contusions of the chest and ribs; and laceration of the right leg with resultant scarring. Plaintiff asserts that these injuries fall within the categories of "serious injury" set forth in Insurance Law § 5102 (d) of a "permanent loss of use of a body organ, member, function, or system," a [*3]"permanent consequential limitation of use of a body organ or member," a "significant limitation of use of a body function or system," and "a medically determined injury or impairment of a non-permanent nature which prevent[ed her] from performing substantially 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."

It is well settled that on a motion for summary judgment, the defendant has the initial burden of submitting sufficient evidentiary proof, in admissible form, to make a prima facie showing that the plaintiff has not sustained a statutory "serious injury" (see Villalta v Schechter, 273 AD2d 299, 330 [2000]; Baker v Donahue, 199 AD2d 661, 661 [1993]; Lowe v Bennett, 122 AD2d 728, 729 [1986], affd 69 NY2d 701 [1986]). When a defendant has satisfied this requirement, the burden shifts to the plaintiff, and it is then incumbent upon the plaintiff to produce sufficient admissible evidence to raise a triable issue as to the existence of a statutory "serious injury" (see Pommells v Perez, 4 NY3d 566, 579 [2005]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Lopez, 65 NY2d at 1020; Grossman v Wright, 268 AD2d 79, 84 [2000]; Figueroa v Torgerson, 147 AD2d 883, 884 [1989]; Lowe, 122 AD2d at 730).

In support of their motion, Dreamon and Rodriguez have submitted the affirmed reports of their independent examining physicians, Robert Israel, M.D. and Edward M. Weiland, M.D. These affirmed reports qualify as admissible evidence which may be relied upon by defendants (see CPLR 2106; Metzentseff v Ming Yat Lau, 284 AD2d 379, 379 [2001]; Addison v New York City Tr. Auth., 208 AD2d 368, 368 [1994]; Baker, 199 AD2d at 661).

Dr. Robert Israel, a board certified orthopedic surgeon, stated, in his affirmed medical report, that he performed an independent orthopedic examination of plaintiff on October 22, 2008. Dr. Israel reported that plaintiff presented in no acute distress or discomfort and that he tested plaintiff's range of motion using a goniometer.

Dr. Israel's examination of plaintiff's cervical spine revealed a normal lordosis with tenderness to palpation. Dr. Israel stated that plaintiff's cervical paraspinal region was palpated using light touch and that he found that no paraspinal or trapezius muscle spasm was present. Dr. Israel set forth that cervical compression testing was negative. Dr. Israel's range of motion tests of plaintiff's cervical spine showed flexion to 45 degrees (45 degrees being normal), extension to 45 degrees (45 degrees being normal), right rotation to 70 degrees (70 degrees being normal), right lateral flexion to 45 degrees (45 degrees being normal), and left lateral flexion to 45 degrees (45 degrees being normal). There was normal proprioception with no sensory deficit on light touch and pin prick, and no radiation of pain or paresthesias. Dr. Israel's examination of plaintiff's thoracic spine revealed that plaintiff's thoracic curvative was normal with no spasm, and sensation was intact.

Dr. Israel's examination of plaintiff's lumbar spine revealed that plaintiff's lordotic curve was normal, and there were no spasms or tenderness present over [*4]her paraspinal musculature on palpation. Dr. Israel reported that sitting Lasegue's testing on plaintiff was bilateral negative to 80 degrees (80 degrees being normal). Dr. Israel found that straight leg raising testing of plaintiff was bilaterally negative to 75 degrees (75 degrees being normal) in both the seated and supine positions. Dr. Israel further found range of motion testing of plaintiff's lumbar spine revealed forward flexion to 90 degrees (90 degrees being normal), extension to 30 degrees (30 degrees being normal), right lateral flexion to 45 degrees (45 degrees being normal), and left lateral flexion to 45 degrees (45 degrees being normal). Dr. Israel's examination showed plaintiff's bilateral patella and Achille's deep tendon reflexes to be symmetric, and proprioception to be normal with no sensory deficit on light touch and pin prick. Dr. Israel additionally found the muscle strength of both of plaintiff's lower extremities to be graded at 5/5 and no atrophy present in the muscles of both of her lower extremities. There was also no radiation of pain, numbness, or tingling.

Dr. Israel also found normal results on range of motion testing of plaintiff's right shoulder and right wrist. Dr. Israel further found that plaintiff's right leg had a full range of motion.

Dr. Israel set forth his impression of a normal exam of plaintiff's cervical spine, thoracic spine, lumbar spine, right shoulder, right wrist, and right leg. Dr. Israel opined that plaintiff "is capable of work activities and [activities of daily living] without restrictions." Dr. Israel concluded that "there is no permanency and there are no residuals relative to the incident date."

Dr. Edward M. Weiland, a board certified neurologist, stated, in his affirmed medical report, that he performed an independent medical evaluation of plaintiff on May 19, 2006. Dr. Weiland reported that his neurologic examination of plaintiff revealed that her cognitive functions were intact without evidence of aphasia or aproxia. A funduscopic examination failed to reveal any signs of raised intracranial pressure, and plaintiff's corneal reflex was intact. Dr. Weiland also found that plaintiff had full range of motion of the neck and both shoulders.Dr. Weiland's examination of plaintiff's cervical spine, lumbar spine, and shoulders revealed normal findings, and he set forth, in detail, the results of several tests which he performed.

Dr. Weiland stated that his impression/diagnosis was that plaintiff's neurologic examination was normal. Dr. Weiland further stated his impression/diagnosis that plaintiff had a cervical sprain/strain, and a thoracic sprain/strain, which have all resolved. Dr. Weiland concluded that he could find no evidence of any lateralizing neurological deficits, that he did not find that any further neurological investigational studies or neurological treatment modalities were warranted, and that there was no need for the use of any household help, durable medical equipment, or special transportation services. Dr. Weiland saw "no reason why [plaintiff] should not be able to perform activities of daily living and continue gainful employment, without restrictions, from a neurologic perspective." Dr. Weiland found "no primary neurologic disability" or "any neurologic residual or permanency." [*5]

Dreamon and Rodriguez, by the foregoing submissions, have made prima facie showing that plaintiff has not sustained a "serious injury," shifting the burden to plaintiff to submit proof of a "serious injury" in admissible form (see Pommells, 4 NY3d at 579; Kravtsov v Wong, 11 AD3d 516, 517 [2004]; Tankersley v Szesnat, 235 AD2d 1010, 1012 [1997]; Attansio v Lashley, 223 AD2d 614, 614 [1996]; Armstrong v Wolfe, 133 AD2d 957, 958 [1987]).

Plaintiff, opposition to Dreamon and Rodriguez's motion, has annexed radiology reports of Bronx Expert Radiology, P.C. Specifically, plaintiff annexed a March 17, 2004 report of a magnetic resonance imaging study (MRI) of her right shoulder by Miklos Weinberger, M.D., which found that "[t]he acromion is noted to abut the superior aspect of the supraspinatus muscle representing impingement syndrome. Tendonitis." In addition, plaintiff has submitted a report of an MRI of her cervical spine dated March 24, 2004, by Ronald Roskin, M.D., a board certified radiologist, which stated an impression of posterior disc herniations at C3/C4, C4/C5, and C5/C6. Plaintiff has further annexed an April 20, 2006 report of an MRI of her lumbosacral spine by Dr. Weinberger, which concluded that "[c]entral posterior disc herniation is noted at L5-S1 with impingement upon the thecal sac." Plaintiff argues that these MRI reports are sufficient to raise a triable issue of fact.

Plaintiff's argument must be rejected since none of these MRI reports are affirmed by physicians to be true under the penalties of perjury (see CPLR 2106). Unaffirmed MRIs of a plaintiff are without probative value (see Rodriguez v Huerfano, 46 AD3d 794, 795 [2007]; Marziotto v Striano, 38 AD3d 623, 623 [2007]).

Plaintiff has also submitted a radiology report of her cervical spine and lumbosacral spine dated March 17, 2004 by Dr. Weinberger, which found "loss of the normal anterior cervical and lumbar lordosis indicating muscle spasm," "restriction in range of motion in the lower cervical spine as noted on the flexion and extension views," and "[l]evoscoliosis of the lumbosacral spine." This radiology report is similarly unaffirmed and without probative value (see CPLR 2106; Grasso v Angerami, 79 NY2d 813, 7814 [1991]; Burgos v Vargas, 33 AD3d 579, 580 [2006]; Bravo v Rehman, 28 AD3d 694, 695 [2006]).

Plaintiff has additionally annexed various medical records from LT Medical Diagnostic P.C., which include physical therapy progress notes and chiropractic treatment and acupuncture therapy progress notes. Plaintiff also has annexed notes of an initial comprehensive examination of Larisa Tsaur, M.D., which set forth an impression of cervical and lumbosacral musculo-ligamentus sprain/strain. These records and treatment reports are likewise without any probative value in opposing Dreamon and Rodriguez's motion since they are uncertified and unaffirmed (see Iusmen v Konopka, 38 AD3d 608, 609 [2007]; Mejia v DeRose, 35 AD3d 407, 408 [2006]; Bycinthe v Kombos, 29 AD3d 845, 845-846 [2006]; Pagano v Kingsbury, 182 AD2d 268, 270 [1992]. [*6]

Plaintiff also submits her attorney's affirmation, in which her attorney claims that plaintiff has suffered a "serious injury." Plaintiff's attorney's affirmation, however, is not admissible probative evidence on medical issues (see Armstrong, 133 AD2d at 958).

Plaintiff additionally relies upon her own deposition testimony in opposing Dreamon and Rodriguez's motion. However, with respect to plaintiff's claims, as alleged in her bill of particulars, plaintiff admitted, at her deposition, that although she was diagnosed with carpal tunnel syndrome in her right wrist, she did not receive any treatment to it as a result of the accident (Plaintiff's Dep. Transcript at 43). Plaintiff also did not state, at her deposition, that she injured her leg in the accident, and testified that her leg was never treated as a result of the accident (id.). Plaintiff, at her deposition, further conceded that her "chest is fine," her right leg is "okay," and her right shoulder is "fine now" (Id. at 44). Plaintiff did testify, at her deposition, though, that her neck still bothers her "occasionally" (Id. at 43), and that her back bothered her "very often" and sometimes weekly (Id. at 44).

These claims by plaintiff, however, are unsubstantiated by the medical proof (see Elder v Stokes, 35 AD3d 799, 800 [2006]; Olson v Russell, 35 AD3d 684, 685-686 [2006]; Mejia, 35 AD3d at 408). Plaintiff's own self-serving deposition testimony, setting forth subjective complaints of pain, does not constitute medical evidence and cannot demonstrate the existence, extent, duration, or causation of an alleged serious injury, as required by law (see Elder, 35 AD3d at 800; Olson, 35 AD3d at 685-686; Mejia, 35 AD3d at 408). "It is well established that to satisfy the statutory serious injury threshold, plaintiff must have sustained an injury that is identifiable by objective proof" (Tuna v Babendererde, 32 AD3d 574, 575 [2006]).

Moreover, "[i]t is well established that any subjective complaints of pain and limitation of motion must be substantiated by verified objective medical findings based on a recent examination of the plaintiff" (Young v Russell, 19 AD3d 688, 689 [2005]; see also Mejia, 35 AD3d at 407). There is no evidence of any recent examination of plaintiff (see Marziotto, 38 AD3d at 623).

Thus, plaintiff's opposition papers are patently insufficient to raise a triable issue of fact to rebut the prima facie showing by Dreamon and Rodriguez that she has not suffered a permanent loss of use, permanent consequential limitation of use, or significant limitation of use of a body organ, member, function, or system so as to establish a "serious injury" under these categories of the Insurance Law § 5102 (d) definition (see Insurance Law § 5102 [d]).

With respect to the 90/180-day category of the Insurance Law § 5102 (d) definition of "serious injury," it is noted that plaintiff is employed as a licensed practical nurse at the Veterans Affairs Medical Center in the Bronx. Plaintiff's bill of particulars stated that she "was incapacitated from employment for approximately six (6) days and partially thereafter" and that she "sustained no loss of earnings." Plaintiff testified, at her deposition, that she lost "five consecutive days [of work] and [*7]periodically" as a result of the accident (Plaintiff's Dep. Transcript at 8). This deposition testimony, thus, fails to support plaintiff's claim that she was prevented from performing this usual and customary daily activity for not less than 90 days during the 180 days immediately following the occurrence of her injuries (see Eisen v Walter & Samuels, 215 AD2d 149, 150 [1995]).

Moreover, in order to establish a "serious injury "under the 90/180-day category of the Insurance Law § 5102 (d) definition of "serious injury,"a plaintiff must "submit medical evidence based on objective medical findings of a medically determined injury or impairment of a nonpermanent nature which caused the alleged limitations on his [or her] daily activities" for the requisite 90-day period (Dabiere v Yager, 297 AD2d 831 [2002]; see also Bravo, 28 AD3d at 695). Plaintiff only submits her own deposition testimony to support her claim. Specifically, plaintiff testified, at her deposition, that because of her back, she is unable to exercise at home as she had done previously, that she has sex with less frequency, that she is unable to run around when she plays ball with her 27-year-old daughter, that she cannot carry heavy bags when she goes shopping with her daughter, and that she limits her housecleaning to things up to her waist level and sweeping (Plaintiff's Dep. Transcript at 45-48).

Plaintiff, however, has not submitted any proof whatsoever that she was medically unable to perform any of these activities for the requisite period of time (see Gaddy, 79 NY2d at 958). Plaintiff has failed to submit any medical affidavit or affirmation in admissible form, or other objective medical evidence, which substantiates any restrictions on her activities that were causally related to the accident (see Sougstad v Meyer, 40 AD3d 839, 840 [2007]; Tuna, 32 AD3d at 577; Blackmon v Dinstuhl, 27 AD3d 241, 242 [2006]; Thompson v Abbasi, 15 AD3d 95, 101 [2005]).

Plaintiff's unsubstantiated self-serving statements cannot support her claim of "serious injury" (see Glielmi v Banner, 254 AD2d 255, 256 [1998]; Ryan v Xuda, 243 AD2d 457, 457-458 [1997]; Traugott v Konig, 184 AD2d 765, 766 [1992]. Thus, plaintiff's proof is insufficient to demonstrate that she sustained a "serious injury" under the 90/180-day category of Insurance Law § 5102 (d) (see Sougstad, 40 AD3d at 840; Blackmon, 27 AD3d at 242; Villalta, 273 AD2d at 300; Curry v Velez, 243 AD2d 442, 442 [1997]).

Consequently, inasmuch as the record is completely devoid of sufficient admissible evidence to withstand Dreamon and Rodriguez's motion for summary judgment on the threshold issue of whether plaintiff sustained a "serious injury" within the meaning of Insurance Law § 5102 (d), such motion must be granted (see CPLR 3212 [b]; Licari, 57 NY2d at 240; Curry, 243 AD2d at 442-443). Upon a search of the record, pursuant to CPLR 3212 (b), Morris is also entitled to summary judgment dismissing plaintiff's complaint as against him. [*8]

Accordingly, Dreamon and Rodriguez's motion for summary judgment dismissing plaintiff's complaint as against them, is granted, and, upon a search of the record, pursuant to CPLR 3212(b), summary judgment dismissing plaintiff's complaint as against Morris, is also granted.

This constitutes the decision, order, and judgment of the court.

E N T E R,

J. S.C. Footnotes

Footnote 1:Morris joined, at oral argument, in Dreamon and Rodriguez's motion, but did not formally move for summary judgment.