Broussard v Magic Limo

[*1] Broussard v Magic Limo 2009 NY Slip Op 51668(U) [24 Misc 3d 1229(A)] Decided on July 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 31, 2009
Supreme Court, New York County

Kim Broussard, Plaintiff,

against

Magic Limo and GEORGE DURAN, Defendant.



400723/07



ATTORNEY FOR THE PLAINTIFF:

Firm : Levidow Levidow & Oberman

Address : 299 Broadway - Suite 1800

New York, New York 10007

ATTORNEY FOR THE DEFENDANT:

Firm: Carfora Klar Pinter/Cogan LLP

Address: 90 Broad St.

New York, New York 10004

Paul Wooten, J.

Court order dated March 27, 2009 (Wooten, P.), denied defendants' motion for summary judgment on the issue of "serious injury". The Court sua asponte asserts that due to a word processing error a earlier draft version of the order was mistakenly reported as the final order (see 2009 NY Slip Op 30741[U]).Thus, the Court is satisfied that March 27, 2009 order may have failed to address matters of fact or law which may have changed the determination of the motion (see CPLR 2221[d][2]) and has decided to amend the decision. The amended decision is as follows:

On November 30, 2004, plaintiff was injured, while attempting to exit a motor vehicle owned by New York City Department of Transportation and operated by Eusebio Arias. Such vehicle was struck by a second vehicle owned by defendant Magic Limo and operated by defendant George Duran. The accident occurred on 1st Avenue at or near its intersection with Broadway. On or about January 6, 2006, plaintiff commenced this action, to recover damages for alleged personal injuries suffered as a result of the of the subject motor vehicle accident. The defendant timely filed an answer and issue was joined. The parties completed discovery and a Note of Issue was filed. Defendants now move for an order pursuant to CPLR § 3212, granting summary judgment dismissing the complaint on the basis that plaintiff cannot prove that she suffered a serious injury, pursuant to Insurance Law § 5102 (d).

SERIOUS INJURY THRESHOLD

Pursuant to the Comprehensive Motor Vehicle Insurance Reparation Act of 1974 [*2](now Insurance Law § 5101 et seq. - the "No-Fault Law"), 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) (see Licari v Elliott, 57 NY2d 230 [1982]). 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 loss"]; permanent consequential limitation of use of a body organ or member ["permanent consequential limitation"]; significant limitation of use of a body function or system ["significant limitation"]; 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 eighty days immediately following the occurrence of the injury or impairment ["90/180"].

Plaintiff alleges that the motor vehicle accident resulted in permanent injuries to her head, neck, back and left shoulder, which include soft tissue injuries, pain and limitation of motion. It is indisputable that six of the nine categories of serious physical injuries discussed by Insurance Law 5102 (d) are not applicable herein. Therefore, the court must determine if the injuries to the plaintiff's 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; and (3) 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 Summons and Complaint ¶ 11.) Plaintiff does not specify which categories she claims as a "serious injury" within her bill of particulars and supplemental bill of particulars.

"Serious injury" is a threshold issue, and thus, a necessary element of a plaintiff's prima facie case (Licari, 57 NY2d at 235; Insurance Law § 5104 [a]). The serious injury requirement is in accord with the legislative intent underlying the No-Fault Law, which was enacted to " weed out frivolous claims and limit recovery to significant injuries'" (Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345, 350 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]). As such, to satisfy the statutory threshold, the plaintiff is required to submit competent objective medical proof of his or her injuries (id. at 350). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (id.).

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 Court, which may be decided on a motion for summary judgment (see Licari, 57 NY2d at 237). The moving defendant bears the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that plaintiff has not suffered a "serious injury" as defined in section 5102 (d) (see Toure, 98 NY2d at 352; Gaddy v Eyler, 79 NY2d 955, 956-57 [1992]). Once the defendant has made such a showing, the burden shifts to the plaintiff to [*3]submit prima facie evidence, in admissible form, rebutting the presumption that there is no issue of fact as to the threshold question (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Rubensccastro v Alfaro, 29 AD3d 436, 437 [1st Dept 2006]).

A defendant can satisfy the initial burden by relying on the sworn or affirmed statements of their own examining physician, plaintiff's sworn testimony, or plaintiff's unsworn physician's records (see Arjona v Calcano, 7 AD3d 279, 280 [1st Dept 2004]; Nelson v Distant, 308 AD2d 338, 339 [1st Dept 2003]; McGovern v Walls, 201 AD2d 628, 628 [2d Dept 1994]). Reports by a defendant's own retained physician, however, must be in the form of sworn affidavits or affirmations because a party may not use an unsworn medical report prepared by the party's own physician on a motion for summary judgment (see Pagano v Kingsbury, 182 AD2d 268, 270 [2d Dept 1992]). Moreover, CPLR 2106 requires a physician's statement be affirmed (or sworn) to be true under the penalties of perjury.

A defendant can meet the initial burden of establishing a prima facie case of the nonexistence of a serious injury by submitting the affidavits or affirmations of medical experts who examined plaintiff and opined that plaintiff was not suffering from any disability or consequential injury resulting from the accident (see Gaddy, 79 NY2d at 956-57; Brown v Achy, 9 AD3d 30, 31 [1st Dept 2004]; see also Junco v Ranzi, 288 AD2d 440, 440 [2d Dept 2001] [defendant's medical expert must set forth the objective tests performed during the examination]). A defendant can also demonstrate that plaintiff's own medical evidence does not indicate that plaintiff suffered a serious injury and that the injuries were not, in any event, causally related to the accident (see Franchini, 1 NY3d at 537). A defendant can additionally point to plaintiff's own sworn testimony to establish that, by plaintiff's own account, the injuries were not serious (see Arjona, 7 AD3d at 280; Nelson, 308 AD2d at 339).

Plaintiff's medical evidence in opposition to summary judgment must be presented by way of sworn affirmations or affidavits (see Pagano, 182 AD2d at 270; Bonsu v Metropolitan Suburban Bus Auth., 202 AD2d 538, 539 [2d Dept 1994]). However, a reference to unsworn or unaffirmed medical reports in a defendant's motion is sufficient to permit plaintiff to rely upon the same reports (see Ayzen v Melendez, 299 AD2d 381, 381 [2d Dept 2002]). Submissions from a chiropractor must be by affidavit because a chiropractor is not a medical doctor who can affirm pursuant to CPLR 2106 (see Shinn v Catanzaro, 1 AD3d 195, 197 [1st Dept 2003]). Moreover, an expert's medical report may not rely upon inadmissible medical evidence, unless the expert establishes serious injury independent of said report (see Friedman v U-Haul Truck Rental, 216 AD2d 266, 267 [2d Dept 1995]; Rice v Moses, 300 AD2d 213, 213 [1st Dept 2002]).In order to rebut defendant's prima facie case, plaintiff must submit objective medical evidence establishing that the claimed injuries were caused by the accident, and "provide objective evidence of the extent or degree of the alleged physical limitations resulting from the injuries and their duration" (Noble v Ackerman, 252 AD2d 392, 394 [1st Dept 1998]; see also Toure, 98 NY2d at 350). Plaintiff's subjective complaints "must be sustained by verified objective medical findings" (Grossman v Wright, 268 AD2d 79, 84 [2d Dept 2000]). Such medical proof should be contemporaneous with the accident, showing what quantitative restrictions, if any, [*4]plaintiff was afflicted with (see Nemchyonok v Ying, 2 AD3d 421, 421 [2d Dept 2003]). The medical proof must also be based on a recent examination of plaintiff, unless an explanation otherwise is provided (see Bent v Jackson, 15 AD3d 46, 48 [1st Dept 2005]; Nunez v Zhagui, 60 AD3d 559, 560 [1st Dept 2009]).

A medical affirmation or affidavit that is based on a physician's personal examination and observation of plaintiff is an acceptable method to provide a physician's opinion regarding the existence and extent of plaintiff's serious injury (see O'Sullivan v Atrium Bus Co., 246 AD2d 418, 419 [1st Dept 1998]). "However, an affidavit or affirmation simply setting forth the observations of the affiant are not sufficient unless supported by objective proof such as X-rays, MRIs, straight-leg or Laseque tests, and any other similarly-recognized tests or quantitative results based on a neurological examination" (Grossman, 268 AD2d at 84; see also Arjona, 7 AD3d at 280; Lesser v Smart Cab Corp., 283 AD2d 273, 274 [1st Dept 2001]). A physician's conclusory assertions based solely on subjective complaints cannot establish a serious injury (see Lopez v Senatore, 65 NY2d 1017, 1019 [1985]).

Plaintiff's medical proof of the extent or degree of a physical limitation may take the form of either an expert's "designation of a numeric percentage of a plaintiff's loss of range of motion"; or qualitative assessment of a plaintiff's condition, "provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Toure, 98 NY2d at 350). The medical submissions must specify when and by whom the tests were performed, the objective nature of the tests, what the normal range of motion should be and whether plaintiff's limitations were significant (see Milazzo v Gesner, 33 AD3d 317, 317 [1st Dept 2006]; Vasquez v Reluzco, 28 AD3d 365, 366 [1st Dept 2006]).

Further, a plaintiff who claims a significant injury based on the "permanent loss" category has to establish that the injury caused a "total loss of use" of the affected body part (see Oberly v Bangs Ambulance, Inc., 96 NY2d 295, 299 [2001]).

The "permanent consequential limitation" category requires a plaintiff to establish that the injury is "permanent," and that the limitation is "significant" rather than slight (see Altman v Gassman, 202 AD2d 265, 265 [1st Dept 1994]). Whether an injury is "permanent" is a medical determination, requiring an objective basis for the medical conclusion of permanency (see Dufel, 84 NY2d at 798). Mere repetition of the word "permanent" in the physician's affirmation or affidavit is insufficient. (See Lopez, 65 NY2d at 1019.)

The "significant limitation" category requires a plaintiff to demonstrate that the injury has limited the use of the afflicted area in a "significant" way rather than a "minor, mild or slight limitation of use" (Licari, 57 NY2d at 236). In evaluating both "permanent consequential limitation" and "significant limitation," "[w]hether a limitation of use or function is significant' or consequential' . . . 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" (Dufel, 84 NY2d at 798). Moreover, a " permanent consequential limitation' requires a greater degree of proof than a significant limitation,' as only the former requires proof of permanency" (Altman, [*5]202 AD2d at 651).

The 90/180 category requires a demonstration that plaintiff has been unable to perform substantially all of his or her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury (see Licari, 57 NY2d at 236). The words "substantially all" mean that the person has been "curtailed from performing his usual activities to a great extent rather than some slight curtailment" (id.). A physician's statement that is too general and non-specific does not support a 90/180 claim (see e.g. Morris v Ilya Cab Corp., 61 AD3d 434, 435 [1st Dept 2009]; Gorden v Tibulcio, 50 AD3d 460, 463 [1st Dept 2008]).

Finally, "even where there is objective medical proof, when additional contributing factors interrupt the chain of causation between the accident and claimed injurysuch as a gap in treatment, an intervening medical problem or a preexisting conditionsummary dismissal of the complaint may be appropriate" (Pommels v Perez, 4 NY3d 566, 572 [2005]). Accordingly, a plaintiff is required to offer a reasonable explanation for a "gap in treatment" (id. at 574; see also Colon v Kempner, 20 AD3d 372, 374 [1st Dept 2005].) To raise an issue of fact, the explanation must be proffered by physicians within medical reports or affidavits (see Farozes v Kamran, 22 AD3d 458, 458 [2d Dept 2005]; Ali v Vasquez, 19 AD3d 520, 521 [2d Dept 2005]; Hernandez v Taub, 19 AD3d 368, 369 [2d Dept 2005]). Alternatively, when the explanation for the gap is proffered by plaintiff, it must be supported by corroborative proof to substantiate plaintiff's bare allegations (see Paul v Allstar Rentals, Inc., 22 AD3d 476, 477 [2d Dept 2005]).

DISCUSSION

In support of the motion for summary judgment, defendant proffers, inter alia, a copy of the pleadings and the affirmed medical reports of Dr. Elizabeth Lazarra, a radiologist, Dr. Maurice Carter, an orthopedist and Dr. Marianna Golden, a neurologist. Defendants also submit the medical reports of plaintiffs doctors, Dr. Ravindra Shah, an orthopedic surgeon, Neville Flowers, a physical therapist, plaintiff's worker's compensation file, and uncertified medical records from Nash Hospital, where plaintiff was treated for injuries related to a previous accident. (See Fragale v Geiger, supra ; Pagano v Kingsbury, supra ).

Among the injuries sustained as a result of the subject accident, plaintiff claims that she sustained a tear of her left rotator cup. Dr. Lazarra, examined plaintiff on January 18, 2006. Dr. Lazarra observed ", supra spinatus calcific tendinitis" and a "tear of the distal, supra spinatus tendon". Dr. Lazarra, determined that plaintiff's, supra spinatus tendinitis was "unlikely to be due to the accident of 11/30/04". Dr. Lazarro concluded that in order to determine whether the tear in plaintiff's rotator cup is related to the subject accident, a "comparison with a previous left shoulder MRI or correlation with medical examination at the time of the accident" was needed. According to Dr. Lazarra's medical report, plaintiff was referred for and MRI following the subject accident and plaintiff's initial MRI radiology report was unavailable for review. Thus, without reviewing such medical documents, Dr. Lazarro failed to render an opinion as to whether or not plaintiff's injuries were caused by the subject accident. [*6]

Dr. Carter examined plaintiff on August 29, 2007. Dr. Carter observed limitations in plaintiff's range of motion in her left shoulder. Dr. Golden examined plaintiff on August 29, 2007. Dr. Golden concluded that plaintiff was " not disabled from a neurological point of view." Dr. Golden did not examine plaintiff's left shoulder and stated " I defer evaluation of the left shoulder to the appropriate specialty." Thus, Dr. Golden was also unable to render an opinion as to plaintiff's left shoulder injury.

Accordingly, defendants have not submitted evidence in legally admissible form regarding plaintiff's shoulder injury 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 [1 Dept 1986], Affd, 69 NY2d 700 [1 Dept 1986]).

"As a result, it is unnecessary to reach the question of whether the plaintiff's papers in opposition [on the left shoulder injury] were sufficient to raise a triable issue of fact" (Krayn v Torella, 40 AD3d 588 [2d Dept 2007]; Offman v Singh, supra ; Winegrad v New York Univ. Med Ctr., supra ). Plaintiff is only required to make out a prima facie case that he sustained a serious injury within the ambit of Insurance Law § 5102(d) if defendants first establish through competent evidence that plaintiff does not have a sustainable cause of action (DeAngelo v Fidel Corp. Services, Inc., supra , 171 AD2d at 589; Rubensccastro v Alfaro, 29 AD3d 436, 437 [1st Dept 2006],

However, defendants have come forward with sufficient evidence in admissible form to warrant as a matter of law a finding that plaintiffs have not sustained a "serious injury" within the meaning of Insurance Law § 5102 [d], regarding her cervical and lumbar spine and to proffer that her 90/180-day claim is insufficient. (See, Gaddy v Eyler, 79 NY2d 955, 956-957[1992]; Charley v Goss, 54 AD3d 569, 570 [1st Dept 2008]; Lowe v Bennett, 122 AD2d 728 [1 Dept 1986], Affd, 69 NY2d 700 [1 Dept 1986]; Pagano v Kingsbury, 182 AD2d 268 [2 Dept 1992]). Thus, the burden shifts to plaintiffs to produce admissible evidence to demonstrate the existence of a serious injury creating a triable issue of fact. (See Zuckerman v City of New York, supra ; Forrest v Jewish Guild for the Blind, supra ).

In opposition,plaintiff submits, inter alia, plaintiff's deposition testimony, the affirmed medical affidavit of Dr. Ravindra Shah, an orthopedic surgeon. Accordingly, plaintiff has demonstrated by admissible or credible evidentiary proof, the existence of a triable issue of fact that she has sustained a "serious injury" in the cervical and lumbar spine (head, neck and back) as a result of the subject accident.However, inter alia, her medical proof is insufficient to support her 90/180 day claim. (See Morris v Ilya Cab Corp., supra , at 435 [The statement in the September 2006 report of Keith's treating physician that "[h]e is totally disabled and I have advised him to restrict his activities" is too general to support a 90/180 day claim (see Gorden v Tibulcio, 50 AD3d 460, 463 [2008] ).]

For these reasons and upon the foregoing papers, it is,

ORDERED that the defendants motion for summary judgment to dismiss is denied, except as to the plaintiff's 90/180-day claim; and it is further,

ORDERED that the Clerk of the Court is directed to enter judgment in favor of plaintiff, as directed without costs and disbursements to defendants as taxed by the [*7]Clerk; and it is further,

ORDERED that plaintiff shall serve any and all pre-trial notices and HIPPA Authorizations within five days of this order and one final pre-trial/ settlement conference shall take place on September 3, 2009 at Part 22, 80 Centre Street, Room 132, New York, New York 10013

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

This constitutes the Decision and Order of the Court.

Dated:

Paul WootenJ.S.C.