Holloway v Toussaint

[*1] Holloway v Toussaint 2009 NY Slip Op 51454(U) [24 Misc 3d 1214(A)] Decided on June 30, 2009 Supreme Court, New York County Wooten, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2009
Supreme Court, New York County

Alice Holloway, Plaintiff,

against

Emmanuel Toussaint and Mathusia Abisi, Defendants.



111538/07



ATTORNEY FOR THE PLAINTIFF :

Firm : Newman & Okun

Address : 8 West 38th Street - 9th Fl.

New York, New York 10018

ATTORNEY FOR THE DEFENDANT :

Firm : Baker McEvoy, Morrissey & Moskowitz

Address : 330 West 34th Street - 7th Fl.

New York, New York 10001

Paul Wooten, J.

On October 19, 2006, plaintiff, who was wearing a seatbelt and driving northbound on St. Nicholas Avenue near the intersection of 147th Street, was struck in the right rear of her bumper by co-defendant Mathusia Abisi when he attempted to make a left turn from a double parked position. The impact caused her body to be pushed forward and then forced backward after her chest came in contact with the seatbelt. On or about August 15, 2007, plaintiff commenced this action, to recover damages for alleged personal injuries suffered as a result of the subject motor vehicle accident. The parties completed discovery and a Note of Issue was filed on July 15, 2008. Defendants now move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint on the basis that Holloway has failed to establish a prima facie case showing that she was seriously injured pursuant to Insurance Law § 5102 (d).

SERIOUS INJURY THRESHOLD

Pursuant to the Comprehensive Motor Vehicle Insurance Reparation Act of 1974 (now Insurance Law § 5101, et seq. - the "No Fault" statute), a party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the nine categories of "serious injury" as set forth in Insurance Law § 5102 (d) (Marquez v New York City Tr. Auth., 259 AD2d 261, 686 NYS2d 18 [1st Dept 1999]; DiLeo v Blumberg, 250 AD2d 364, 672 NYS2d 319 [1st Dept 1998]).

Insurance Law § 5102 (d) defines "serious injury" as:

a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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 on-permanent nature which prevents the injured person from performing substantially all of the material acts [*2]which constitute such person's usual and customary daily activities for not less that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

It is indisputable that five of the nine categories of serious physical injuries discussed by Insurance Law § 5102 (d) are not applicable herein as there is no allegation of death, dismemberment, significant disfigurement, fracture or loss of a fetus. Therefore, the court must determine if the plaintiff's alleged injuries constitute either: (1) permanent loss of use of a body organ, member, function or system; (2) a permanent consequential limitation of use of a body function or system; (3) a significant limitation of use of a body function or system; and (4) 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 90 days during the 180 days immediately following the occurrence of the injury or impairment (see plaintiff's bill of particulars).

Serious injury is a threshold issue, and thus, a necessary element of plaintiff's prima facie case (Licari v Elliott, 57 NY2d 230 [1982]; Toure v Harrison, 6 AD3d 270, 775 NYS2d 282 [1st Dept 2004]; Insurance Law § 5104 [a]). This is in accord with the purpose of the "No-Fault" law, which was to " weed out frivolous claims and limit recovery to significant injuries'" (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]; Licari v Elliott, 57 NY2d 234 [1982]; Rubensccastro v Alfaro, 29 AD3d 436, 815 NYS2d 514 [1st Dept 2006]).

In order to satisfy the statutory threshold, the plaintiff must submit competent objective medical evidence of his or her injuries, based on the performance of objective tests (Grossman v Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept 2000]; Lopez v Senatore, 65 NY2d 1017, 1019 [1985]). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Scheer v Koubek, 70 NY2d 678, 679 [1987]).

It is well settled that positive MRI results may constitute a serious injury within the meaning of Insurance Law §5102(d) (see Pommels v Perez, 4 NY3d 566 [2005]; Nagbe v Mimigreen Hacking Group, Inc., 22 AD3d 326, 802 NYS2d 416 [1st Dept. 2005]). Furthermore, a CT scan or MRI may constitute objective evidence to support subjective complaints (see Arjona v Calcano, 7 AD3d 279, 776 NYS2d 49 [1st Dept 2004]; Lesser v Smart Cab Corp., 28 AD3d 365, 724 NYS2d 412 [1st Dept 2001]). The plaintiff's medical submissions must show when the tests were performed, the objective nature of the tests, what the normal range of motion should be and whether the plaintiff's limitations were significant (see Milazzo v Gesner, 33 AD3d 317, 822 NYS2d 49 [1st Dept 2006]; Vasquez v Reluzco, 28 AD3d 365, 814 NYS2d 117 [1st Dept 2006]).

With respect to the categories of significant limitation of use of a body function or system and permanent consequential limitation of use, " [w]hether a limitation of use or function is " significant'" or " consequential'" (i.e., important ...) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part'" (Toure v Avis Rent A Car Sys., supra quoting Dufel v Green, supra ).

Where the plaintiff claims serious injury under the "90/180" category of the Insurance Law § 5102 (d), he must first demonstrate that substantially all his usual activities were curtailed during the requisite time period and second submit competent credible evidence based on the objective findings of a "medically determined" injury or impairment which caused the alleged limitations in his daily activities (see Toure v Avis Rent A Car Systems, supra ; Licari, supra ). [*3]When construing the statutory definition of a 90/180 day claim, the words "substantially all" should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment (Thompson v Abassi, 15 AD3d 95, 100-101, 788 NYS2d 48 [1st Dept 2005]). Proof requires a specific, non-general statement from a physician to support a 90/180 day claim (see Morris v Ilya Cab Corp., 61 AD3d 434, 876 NYS2d 61 [1st Dept 2009]).

Defendants proffer that the only categories that might be applicable to Holloway's serious injury claim are the last four of the nine categories, pursuant to Insurance Law § 5102 (d), those being: the sixth, a permanent loss of use of a body organ, member, function, or system; the seventh, a significant limitation of use of a body function or system; the eighth, a permanent consequential limitation of use of a body function or system; or the ninth, 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 90 days during the 180 days immediately following the occurrence of the injury or impairment.

SUMMARY JUDGMENT ON SERIOUS INJURY

The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the courts which may decide the issue on a motion for summary judgment (Perez v Rodriguez, 25 AD3d 506, 809 NYS2d 15 [1st Dept 2006]). On a motion for summary judgment based upon a failure to sustain a serious injury, the defendants bear the initial burden of establishing the absence of a serious injury by tendering evidentiary proof in admissible form eliminating any material issues of fact from the case (Toure v Avis Rent A Car Sys., supra ; see also Gaddy v Eyler, supra ; Pirrelli v Long Is. R.R., 226 AD2d 166, 641 NYS2d 240 [1st Dept 1996]).

Defendant may rely either on the sworn or affirmed statements of their examining physician, plaintiff's deposition testimony and plaintiff's unsworn physician's records (Newton v Drayton, 305 AD2d 303, 760 NYS2d 38 [1st Dept 2003]; Fragale v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 56 [2d Dept 1992]). But, the Courts have unanimously held that a party may not use an unsworn medical report prepared by the party's own physician on a motion for summary judgment (see Grasso v Angerami, 79 NY2d 813 [1991]; Offman v Singh, 27 AD3d 284, 813 NYS2d 56 [1st Dept 2006]). Moreover, CPLR § 2106 requires a physician's statement be affirmed (or sworn) to be true under the penalties of perjury. An affirmed physician's report demonstrating that plaintiff was not suffering from any disability or consequential injury resulting from the accident is sufficient to satisfy a defendant's burden of proof (see Gaddy v Eyler, supra ).

Once a defendant has made such a showing, the burden shifts to the plaintiff to come forward with prima facie evidence, in admissible form, to rebut the presumption that there is no issue of fact as to the threshold question (see Pommells v Perez, supra ; Gaddy v Eyler, supra ; Perez v Rodriguez, supra ). Plaintiff has the burden of showing that his injuries are due to the subject accident and not other medical problems (see Franchini v Palmieri, 1 NY3d 536 [2003]). A medical affirmation or affidavit based on a physician's own examination, tests, and review of the record, can support the existence and extent of a plaintiff's serious injury (O'Sullivan v Atrium Bus Co., 246 AD2d 418, 668 NYS2d 167 [1st Dept 1998]). However, "where a defendant fails to meet his initial burden of establishing a prima facie case that the plaintiff did not sustain a serious injury, it is not necessary to consider whether the plaintiff's papers in opposition were sufficient to raise a triable issue of fact" (see Offman v Singh, supra ; Winegrad v New York Univ. Med Ctr., supra ). On a summary judgment motion, a court may review the entire record (Merritt Hill Vineyard v Windy Heights Vineyard, 61 NY2d 106, 110-111 [1984]).

[*4]DISCUSSION

Holloway's bill of particulars alleges a disc herniation at C3-C4 impinging the thecal sac; a disc bulge at C5-C6 effacing the thecal sac; a cervical radiculopathy; a disc herniation at L5-S1 impinging the spinal canal; a disc bulge at L4-L5 effacing the thecal sac; and a lumbar radiculopathy.

On the date of the accident, Holloway, a registered nurse, went from the accident site to Harlem Hospital where she underwent x-rays and was released. On October 23, 2006, she went to Crotna Heights Medical P.C. and was treated by Dr. Andrew Cordaro. She also went to Andrew Carothers, M.D., P.C. where MRI's were done by Dr. Jeffrey Chess, M.D. X-rays were done on October 23, 2006, an MRI of the cervical spine was done on October 26, 2006, and of the lumbar spine on November 16, 2006. V-SCT Exams were done on November 14, 2006 and November 27, 2006, and an EMG was done on December 15, 2006. Dr. Cordaro found abnormal ranges of motion with disparities of greater than 10 degrees (referred to as whole person impairments) of 22% on November 1, 2006; 35% on December 21, 2006 and 28% on February 5, 2007. Holloway underwent extensive physical therapy treatment with continued complaints of pain. Dr. Cordaro at some point referred Holloway to Dr. Sko Tarakhchyan, D.O. for additional treatment. Treatment was discontinued when it was determined that further intervention with physical therapy and other modalities would be palliative (see Holloway Affirmation in Opposition, Exhibit C).

In support of the motion for summary judgment, defendants proffer, inter alia, a copy of the pleadings and the affirmed reports of Drs. R.C. Krishna, a neurologist; Marvin Winell, an orthopedist; A. Robert Tantleff, a radiologist. Dr.Krishna's June 10, 2008 medical report reflects that, though he physically examined Holloway, he did it without authenticated medical records indicating that none were available for review. He used only the December 12, 2007 bill of particulars for a guide. He listed the normal ranges of motion along with her observed ranges of motion, which he found to be normal with no limitations. He found that there was no neurological indication of a disability or contraindication preventing her from continuing a gainful employment status. He further stated that there were no neurological deficits identifiable on examination which would constitute a disability or permanency.

Dr. Winell's June 12, 2008 medical report reflects that his physical examination was done using only the bill of particulars and the MV-104AN, also stating that authenticated medical reports were unavailable. He listed her observed ranges of motion as all being normal. He also listed the normal range of motion measurements. His impression was a normal examination of the cervical, thoracic and lumbar spines with shoulder complaints being cervical in origin. He found no evidence of an orthopedic disability and that she was able to perform full work activities without restriction or limitation. He also stated that there was no need for physical therapy.

Dr. Tantleff reviewed the October 26, 2006 cervical spine and November 16, 2006 lumbar spine MRIs. His impression of the cervical spine MRI was that of seeing diffuse discogenic changes with a focal degenerative disc herniation at C3-C4, those conditions being unrelated to the October 19, 2006 accident. His impression of the lumbar spine was that it was unremarkable and normal.

Based on the foregoing, defendant has submitted evidence in legally admissible form to meet their prima facie burden, entitling them to summary judgment and a finding that plaintiff has not sustained a "serious injury" within the meaning of Insurance Law § 5102 [d] (see Gaddy v Eyler, supra ; Lowe v Bennett, 122 AD2d 728, 511 NYS2d 603 [1st Dept 1986], affd, 69 NY2d 700 [1986]). Thus, the burden shifts to plaintiff to produce evidentiary proof in admissible form in order to establish the existence of a serious injury (see Baez v Rahamatali,6 NY3d 868 [*5][2006]; Franchini v Palmieri, supra ; Gaddy v Eyler, supra ; Shinn v Catanzaro, 1 AD3d 195, 767 NYS2d 88 [1st Dept 2003]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]).

In opposition,plaintiff submits, inter alia, unaffirmed medical records along with medical affirmations from Drs. Andrew Cordaro, Holloway's treating physician, Jeffrey Chess, a radiologist, and Sko Tarakhchyan, D.O., a treating chiropractor. Dr. Cordaro's medical affirmation is dated June 8, 2007. In that report, Dr. Cordaro stated that the overall prognosis for a full and complete long-term recovery was guarded. He further stated, with a reasonable degree of certainty that the condition the patient developed was solely related to and had a direct causal relationship to the October 19, 2006 accident. However, the non-normal ranges of motion reported in Dr. Cordaro's June 8, 2007 medical affirmation were not recent results, but were incorporated from an earlier October 23, 2006 medical report.

Dr. Chess's July 30, 2008 affirmation merely reiterates that the October 26, 2006 and November 16, 2006 medical reports were accurate impressions of the 2006 cervical and lumbar MRIs.

Dr. Tarakhchyan's August 4, 2008 medical affidavit reflects that he reviewed Holloway's personal medical records, as well as those of defendants' Drs. Krishna, Winell and Tantleff. He re-examined Holloway on August 1, 2008 which included range of motion testing. He states that he is in total disagreement with Drs. Krishna and Winell, in that it is his impression that Holloway's ongoing complaints of pain are serious and permanent and are causally related to the October 19, 2006 accident. Unfortunately, though both the norms and objective range of motion results from Dr. Tarakhchyan's August 1, 2008 physical examination of Holloway are listed in paragraph 19 of the attorney affirmation, Dr. Tarakhchyan's August 4, 2008 medical affirmation, itself, lists only the normal ranges of motion and not Holloway's objective range of motion results from her August 1, 2008 physical examination (compare August 22, 2008 Affirmation in Opposition, ¶ 19 with Exhibit E, ¶ 9). Even though the burden shifts to the plaintiff to come forward with prima facie evidence, in admissible form, to rebut the presumption that there is no issue of fact as to the threshold question (see Pommells v Perez, supra ), an opposing party, herein Holloway, may rely on an attorney affirmation based upon documentary evidence in admissible form (see Zuckerman v City of New York, 49 NY2d at 563). However, here, the document upon which the attorney affirmation relies, Dr. Tarakhchyan's August 4, 2008 affirmation, is defective in and of itself. This court is constrained to disqualify Dr. Tarakhchyan's medical affirmation due to its failure to include the August 1, 2008 objective range of motion results in the report.

Based on the aforesaid, the records do not reflect that there is sufficient objective criteria to support serious injury under the sixth, seventh and eighth categories of serious injury under Insurance Law § 5102 (d). Furthermore, though Holloway avers in her bill of particulars and August 2, 2008 affidavit that she has met the requirements of the ninth category of serious injury under Insurance Law § 5102 (d), the record does not support an objective basis showing an objective medical determination that her injury was of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for ninety out of one hundred eighty days immediately following the October 19, 2006 accident.

Accordingly, as plaintiff's evidence fails to establish a material issue of fact, it is,

ORDERED that defendants, Emmanuel Toussaint's and Mathusia Abisi's motion for summary judgment on the issue of serious injury is granted and the complaint is hereby dismissed with costs and disbursements to defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further, [*6]

ORDERED that the Clerk is directed t enter judgment accordingly; and it is further

ORDERED that defendants shall serve a copy of this order, with notice of entry, upon plaintiff.

Dated: March 23, 2009

Paul WootenJ.S.C.