Zubiaga v Kaniel

[*1] Zubiaga v Kaniel 2009 NY Slip Op 52163(U) [25 Misc 3d 1217(A)] Decided on August 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2009
Supreme Court, New York County

Juan G. Zubiaga, Plaintiff,

against

David Kaniel, Carmine J. Mezzacapp, and Diana M. Drayton, Defendants.



103768/06



Attorney for Plaintiff:

Campbell, Lynch & Smith

4808 Bergenline Ave., Ste. 304

Union City, NJ 07087

Attorney for Defendant:

Koors & Jednak

One Fordham Plaza, Ste. 901D

Bronx, NY 10458

Paul Wooten, J.

On March 20, 2003, a four car accident occurred at or near the intersection of 12th Avenue and 46th Street. The vehicle being operated by Juan G. Zubiaga (Zubiaga), which was headed south toward the Lincoln Tunnel, was stopped at a red light. In his rear view mirror Zubiaga noticed that the vehicle being operated by David Kaniel (Kaniel) was stopping but not totally stopped just before the series of collisions occurred wherein the motor vehicle operated by Diana M. Drayton (Drayton) struck the rear of a vehicle operated by Carmine J. Mezzacapp (Mezzacapp), which struck the rear of the Kaniel vehicle, which struck the rear of the Zubiaga vehicle. Zubiaga was seat belted. On or about July 20, 2006, he 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 February 11, 2008. Drayton now moves for an order, pursuant to CPLR 3212, granting her summary judgment dismissing the complaint on the basis that Zubiaga has failed to establish a prima facie case showing that he was seriously injured pursuant to Insurance Law § 5102 (d). An interpreter was present for plaintiff's deposition.

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, 261 [1st Dept 1999]; DiLeo v Blumberg, [*2]250 AD2d 364, 366 [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 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, 235 and 238 [1982]; {{{Toure v Harrison, 6 AD3d 270, x [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, 350 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]; Licari v Elliott, 57 NY2d 234, 236-237 [1982]; Rubensccastro v Alfaro, 29 AD3d 436, 437 [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, 84 [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, 957-958 [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, x [2005]; Nagbe v Mimigreen Hacking Group, Inc., 22 AD3d 326, x [1st Dept. 2005]) }}}. {{{ Furthermore,}}} a CT scan or MRI may constitute objective evidence to support subjective complaints (see Arjona v Calcano, 7 AD3d 279, 280 [1st Dept 2004]; Lesser v Smart Cab Corp., 283 AD3d 273, 274 [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, 317-318 [1st Dept 2006]; Vasquez v Reluzco, 28 AD3d 365, 366 [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., 98 NY2d at 353, quoting Dufel v Green,84 NY2d at 798). [*3]

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, 98 NY2d at 357; Licari, v Elliot, 57 NY2d at 236-237). 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[1st Dept 2005]). Proof requires a contemporaneous specific, non-general statement from a physician to support a 90/180 day claim (see Morris v Ilya Cab Corp., 61 AD3d 434, 435 [1st Dept 2009];Gorden v Tibulcio, 50 AD3d 460, 463 [1st Dept 2008]).

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, 507 [1st Dept 2006]). On a motion for summary judgment based upon a failure to sustain a serious injury, the defendant bears 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., 98 NY2d 345; see also Gaddy v Eyler, 79 NY2d 955, 956-957; Pirrelli v Long Is. R.R., 226 AD2d 166, 166 [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, 304 [1st Dept 2003]; Fragale v Geiger, 288 AD2d 431, 431 [2d Dept 2001]; Pagano v Kingsbury, 182 AD2d 268, 270-271 [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, 814-815 [1991]; Offman v Singh, 27 AD3d 284, 284-285 [1st Dept 2006]). CPLR 2106 requires a physician's statement to be "affirmed ... to be true under the penalties of perjury" (Offman v Singh, 27 AD3d 284, 284 [1st Dept 2006]). 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, 79 NY2d 955, 956-957).

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, 74 NY3d 566, 579; Gaddy v Eyler, 79 NY2d 955, 956-957; Perez v Rodriguez, 25 AD3d 506, 507-508). 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, 537 [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, 419-420 [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 Winegrad v New York Univ. Med Ctr., 64 NY2d 851, 853 [ ]; Offman v Singh, 27 AD3d 284). 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]). (see Gaddy v Eyler, supra ; Lowe v Bennett, 122 AD2d 728, 511 NYS2d 603 [1st Dept 1986], affd, 69 NY2d [*4]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 [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]).

DISCUSSION

Zubiaga's deposition testimony reveals that the only real remaining source of pain is that of his right hip, the one he uses for driving and braking. He stated that he has been told that the only resolution to the hip pain is surgery. His bills of particulars alleges, amongst other things, disc bulges at C3-C4, C4-C5, L3-L4 and L4-L5; a disc herniation at L5-S1; cervical and lumbar radiculopathy; bilateral TMJ; left elbow and bilateral shoulder derangement; headaches and numbness. Plaintiff claims in his February 7, 2007 Verified and June 20, 2007 Supplemental Bills of Particulars both permanent and significant injuries, pursuant to Insurance Law § 5102 (d), those being: a permanent loss of use of a body organ, member, function, or system; a significant limitation of use of a body function or system; a permanent consequential limitation of use of a body function or system; and 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.

Though he states in paragraph ten of his supplemental bill of particulars that he was confined to his bed and home for 13 weeks, in his deposition colloquy, he states that he went to work the next day and did not miss any work as a result of the accident, nor was he ever physically confined to his bed (see Notice of Motion, Exhibit D, at 8, lines 4-18 and 47-48, lines 22-25 and 2-3). He stated that he worked in March and April from 9:00am to 2:00pm and then went for chiropractic therapy, but also stated that his first medical treatment was May 2, 2003 (id. at 20-21).

In support of the motion for summary judgment, defendants proffer a copy of the pleadings and the affirmed medical reports of Drs. Robert Israel, an orthopedist and Daniel J. Feuer, a neurologist. Dr. Israel's medical affirmation reflects that he reviewed Zubiaga's X-ray of the lumbar spine dated 5/6/03; an MRI of the lumbar spine dated 6/6/03; a chiropractic evaluation dated 5/5/03; chiropractic notes dated 9/4/03 to10/1/03; a PT prescription dated 8/5/03; a PT evaluation dated 9/29/03; Pt notes dated 8/11/03 to11/6/03; and Dr. Miller, DC's 4/20/05 evaluation. Dr. Israel's October 5, 2007 medical report reflects that, he examined Zubiaga's lumbar spine, right elbow and right hip.

Upon examining Zubiaga, Dr. Israel found the following ranges of motion. Forward flexion of the lumbar spine to 90 (90 degrees being normal); extension to 30 (30 degrees being normal);right lateral flexion to 45 (45 degrees bing normal; and left lateral flexion to 45 degrees (45 degrees being normal). It was Dr. Israel's impression that any sprains of the right elbow, hip and lumbar spine were resolved; Zubiaga was capable of work activities and ADLs without restriction; no treatment would be reasonable or necessary; and even though there was a cause and effect relationship between the original complaint and the reported accident, the claimant had no disability as a result of the accident of record.

Dr. Feuer's medical affirmation stated that he reviewed Dr. Ramundo's chiropractic progress notes dated May 5, 2003 to October 1, 2003; PT progress notes dated August 8, 2003- November 6, 2003; an orthopedic referral form for PT noting a diagnosis of "right hip strain' dated September 25, 2003; a PT evaluation noting a complaint of left lateral elbow pain, [*5]dated August 8, 2003; chiropractic reports by Dr. Miller dated April 20, 2005; Dr. Lang's June 6, 2003 MRI lumbar spine report noting mild degenerative changes but no nerve root impingement to support a diagnosis of radiculopathy; a May 6, 2003 X-ray report of the lumbar spine; Dr. Ramundo's chiropractic examination reports dated May 5, 2003 and September 12, 2003; progress notes dated June 27, 2003 - October 1, 2003; a PT evaluation dated September 29, 2003; a note by Dr. Ramundo dated June 20, 2003; and a handwritten log dated May 5, 2003 through November 6, 2003.

Dr. Feuer's examination of Zubiaga's lumbar spine revealed mild bilateral tenderness; no spasm; flexion at 70 degrees producing "low back pain" (90 degrees being normal); and lateral flexion at 25 degrees. It was his impression that the motor, reflex and sensory findings are normal. He stated that there were no objective clinical deficits referable to the central or peripheral nervous system to support his objective complaints or to support a diagnosis of root dysfunction. Neurological observations revealed inconsistent ranges of motion of the lumbosacral spine. He found Zubiaga's neurological examination within normal limits. He indicated that Zubiaga did not demonstrate any objective neurological disability or neurological permanency which is causally related to the accident and he is neurologically stable to engage in full activities of daily living without restriction. The court notes the lumbar flexion difference of 90 degrees for Dr. Israel and 70 degrees for Dr. Feuer with both considering 90 degrees as being normal.

Based on the foregoing, Drayton has submitted legally admissible evidence, via the affirmations of Drs. Israel and Feuer, sufficient to meet her prima facie burden of establishing entitlement to summary judgment based upon a finding that plaintiff has not sustained a "serious injury" within the meaning of Insurance Law § 5102 [d].

In opposition,Zubiaga submits, inter alia, the same unaffirmed medical records relied upon by Drayton's examining physicians along with two separate medical affirmations from Dr. Wayne A. Miller, dated April 18, 2008 and August 1, 2008. The two medical affirmations are virtually identical content-wise, except that the August 1,2008 medical affirmation is also notarized. A review of their content indicates that they are the result of Dr. Miller's review of his own and other earlier unaffirmed medical reports and records, wherein, in contrast to Drayton's examining physicians, he had earlier indicated a 50 percent loss in extension and 22 percent loss in flexion of the lumbar spine; partial permanent disability of the cervical spine; and a significant partial permanent disability of the lumbar spine.

The court reviewed the medical records referred to by Dr. Miller in his April 18, 2008 affirmation, as well as the April 18, 2008 affirmation which were attached as exhibits to Zubiaga's May 16, 2008 Affirmation in Opposition to the Kaniel motion for summary judgment, which was withdrawn.[FN1] The court notes that the only objective range of motion results found in its review of the court file are those in the exhibits of unaffirmed medical records relied upon and reviewed by Drayton's doctors which are attached to the May 16, 2008 Affirmation in Opposition to Defendant Kaniel's Motion for Summary Judgment. Those objective range of motion statistics are found in the undated Comprehensive Health Associates report of Dr.Gino Ramundo, which lists a lumbar flexion of 65 degrees (80 degrees being listed as normal) and and extension of 15 degrees (with 25 degrees being listed as normal). The court may review the entire record before it on motion for summary judgment (Merritt Hill Vineyards v Windy Heights Vineyards, 61 NY2d 106, 110 [1984]). Though the medical reports are medical [*6]affirmations, Dr. Miller's affirmations do not reflect that they are the premised upon a recent medical examination of Zubiaga, nor do they reflect current objective range of motion measurements and the norms. range .

Based on the aforesaid, the records do not reflect that there is a sufficient objective criteria to support serious injury under the sixth, seventh, eighth or ninth categories of serious injury under Insurance Law § 5102 (d). Though Zubiaga avers in his bill of particulars that he has met the requirements of the ninth category that being of incapacitated for 90 out of 80 days, the record does not support an objective basis showing an objective medical determination that his injury was of a non-permanent nature which prevented him 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. Where a plaintiff cannot meet the threshold for serious injury against one defendant, it cannot be met against the other defendants and the action should be dismissed against them as well (see Lopez v Simpson39 AD3d 420, 421[1st Dept 2007]).

Accordingly, as plaintiff's evidence fails to establish a material issue of fact that there was a serious injury, it is,

ORDERED that the motion by Diana M. Drayton 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,

ORDERED that the action is dismissed against David Kaniel and Carmine J. Mezzacapp; and it is further

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

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

Dated:

Paul WootenJ.S.C. Footnotes

Footnote 1:The court notes that the Kaniel motion for summary judgment under motion sequence number 004 was withdrawn pursuant to this court's order dated September 10, 2008.