Desravines v Avis Rental

[*1] Desravines v Avis Rental 2009 NY Slip Op 52484(U) [25 Misc 3d 1238(A)] Decided on December 10, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2009
Supreme Court, Kings County

Jean Gottfried Desravines, Plaintiff,

against

Avis Rental and DAVID L. WHITTACRE, Defendants.



22408/07



For Plaintiff

Harmon, Linder & Rogowsky, Esqs.

42 Broadway Suite 1227

New York, New York 10004

212-732-3665

For Defendants Avis & Whittacre

Shapiro, Reilly, Rosenberg & Aronowitz, LLP

225 Broadway 13th floor

New York, New York 10007

212-267-9020

Francois A. Rivera, J.

By notice of motion filed on June 8, 2009, under motion sequence number nine, plaintiff, Jean Gottfried Desravines (hereinafter Desravines or movant) moves pursuant to CPLR §2221(d) for an order permitting re-argument of his prior motion and permitting re-argument and renewal of his opposition to defendants' prior cross-motion.

Plaintiff's prior motion sought partial summary judgment in his favor finding that he sustained a serious injury as defined in Insurance Law 5102(d) in the 90/180 category. Defendants Avis Rental (hereinafter Avis) and David L. Whittacre's (hereinafter Whittacre) previously cross-moved for summary judgment dismissing the complaint on the basis that plaintiff did not sustain a serious injury.

By order of this court dated May 15, 2009 (hereinafter the subject order) the priormotion was denied and the defendants' prior cross-motion for dismissal was granted.

By order of this court dated September 18, 2009, plaintiff was denied leave to re-argue his prior motion and was granted leave to renew and reargue his opposition to defendants' prior cross-motion.

BACKGROUND

On June 20, 2007, plaintiff commenced the instant action for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. Avis [*2]joined issue by verified answer dated August 8, 2007. Whittacre joined issue by verified answer dated October 24, 2007. Plaintiff's complaint and bill of particulars allege the following facts. On September 14, 2006, at around 5:00 p.m., plaintiff was driving a school bus southbound on the Triborough bridge between 138th street and Bruckner Boulevard. At that time and location, he was struck in the rear (the subject accident) by a vehicle owned by Avis and negligently operated by Whittacre and as a result sustained serious injuries.

MOTION PAPERS

The plaintiff's motion papers consist of an affirmation of counsel and seven annexed exhibits labeled 1 through 7. Exhibit 1 is a copy of the subject order dated May 15, 2009. Exhibit 2 is a copy of the affirmed addendum reports of Dr. Leslie Theodore dated June 3rd and 4th, 2009. Exhibit 3 is a copy of the affirmed addendum report of Dr. Aric Hausknecht dated May 18, 2009. Exhibit 4 is a copy of the papers plaintiff previously submitted in opposition to defendants' prior cross-motion. Exhibit 5 is a copy of the defendants' prior cross-motion. Exhibit 6 is a copy of plaintiff's verified bill of particulars. Exhibit 7 is is a copy of the transcript of plaintiff's deposition conducted on February 11, 2008.

Defendants' opposition papers consist of an affirmation of counsel and eleven annexed exhibits labeled A through K. Exhibit A is a copy of a decision of the Appellate Division Second Department, entitled Burgos v. Rateb, 2009 N.Y.Slip Op. 05378. Exhibit B is a copy of the instant summons and complaint. Exhibit C is a copy of Avis' verified answer. Exhibit D is a copy of Whittacre's verified answer. Exhibit E is a copy of plaintiff's verified bill of particulars. Exhibit F is a copy of the transcript of plaintiff's deposition conducted on February 11, 2008. Exhibit G is a copy of the affirmed report of Dr. Michael J. Carciente dated August 19, 2008. Exhibit H is a copy of the affirmed report of Dr. Martin E. Wolpin dated October 13, 2008. Exhibit I and J are copies of the affirmed reports of Dr. A. Robert Tantleff. Exhibit I is dated March 27, 2008 and exhibit J is undated. Exhibit K is plaintiff's affidavit.

APPLICABLE LAW

CPLR §2221. Motion affecting prior order. (a) A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that:

(d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.

(e) A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior [*3]determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion.

Insurance Law § 5102 (d) "Serious injury,"means 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 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.

In the context of a motion for summary judgment, "a defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined plaintiff and conclude that no objective medical findings support the plaintiff's claim" of serious injury (Shinn v. Catanzaro, 1 AD3d 195 at 197 [1st Dept., 2003]).

Once the defendant has established a prima facie case that the plaintiff did not sustain a "serious injury," the burden shifts to the plaintiff to "come forward with admissible proof to raise a triable issue of fact" (Napoli v Cunningham, 273 AD2d 366 [2nd Dept., 2000]).

A motion to renew is based upon new facts not offered on the prior motion that could change the prior determination (or on a change in the law that would change the prior determination), and must contain a reasonable justification for the failure to present such facts in the prior motion (CPLR §2221(e) [2] and [3]). The requirement that a motion for renewal be based upon newly discovered facts is a flexible one, and a court may, in its discretion, grant renewal even upon facts known to the movant at the time of the original motion (Wilder v. Mays Dept. Stores Co., 23 AD3d 646, 648 [2nd Dept., 2005]).

DISCUSSION

The subject prior order was premised on the defendants prima facie showing that plaintiff did not sustain a serious injury caused by the subject accident. The defendants had, therefore, successfully shifted the burden to the plaintiff to raise a triable issue.The court further found that the collective opinions of plaintiff's medical experts did not adequately address his prior injuries from a 1994 motor vehicle accident, thus, rendering their opinion on the injuries caused by the subject accident speculative.

Plaintiff contends that the affirmation of Drs. Leslie Theodore and Aric Hausknecht submitted with his prior opposition papers should have been sufficient to address the court's concern about the 1994 accident. Plaintiff now offers supplemental affirmations from Drs. Leslie Theodore and Aric Hausknecht. He contends that they [*4]demonstrate that his current injuries are caused by the subject accident. The court finds plaintiff's explanation for not including the supplemental affirmation to his prior opposition papers reasonable.

The court will re-analyze the prior cross-motion, the plaintiff's prior opposition papers, and the instant motion papers which include the supplemental affirmations of Drs. Leslie Theodore and Aric Hausknecht.

DEFENDANTS' SHOWING

The defendants previously relied on the plaintiff's deposition transcript and the affirmed medical reports of Drs. Michael J. Carciente, Martin E. Wolpin and A. Robert Tantleff to support their cross-motion for dismissal. Plaintiff's automobile accident occurred on September 14, 2006. He underwent an independent medical examination on August 19, 2008, conducted by Dr. Carciente, a neurologist; and on October 13, 2008, conducted Dr. Wolpin, an orthopedic surgeon. On March 27, 2008, Dr. A. Robert Tantleff, a radiologist, reviewed the MRI of plaintiff's shoulder and lumbar spine taken on May 18, 2007.

Dr. Carciente conducted a sensory and cerebellar examination. He also tested plaintiff's cranial nerves and examined his cervical and thoracic/ lumbosacral spine. He opined in his affirmed report dated August 19, 2009, that the plaintiff had a normal neurologic examination. Dr. Wolpin conducted a physical examination and range of motion testing in which he compared his findings to normal findings. He opined in his affirmed report dated October 13, 2008, that plaintiff had no range of motion limitations in the upper or lower extremities. Dr. A. Robert Tantleff, a radiologist, opined in his affirmed report dated March 27, 2008, that the MRI of the plaintiff's lumbar spine and shoulder taken on May 18, 2007 revealed long standing disc degeneration consistent with plaintiff's age and the normal aging process. By the above showing, the defendants made a prima facie showing of entitlement to judgment that the plaintiff did not sustain a serious injury.

PLAINTIFF'S SHOWING

In opposition to the defendants' cross-motion plaintiff originally submitted his affidavit and the affirmed reports of two radiologist, Drs. Mark Shapiro and Thomas Mannino. He also submitted an affirmation of Dr. Shahid Mian, an orthopedic surgeon, an affirmed report of Dr. Aric Hausknecht, a neurologist; and an affirmation from Dr. Leslie Theodore, an internist.

The affirmed report of Dr. Mark Shapiro, a radiologist pertained to his review of the MRI of plaintiff's right shoulder and lumbar spine taken on May 18, 2007. Dr. Shapiro reported that the MRI of the right shoulder was consistent with a partial tear of the superspinatus tendon and the MRI reading of the lumber spine showed a disc herniation at L3-4 creating impingement and disc herniation at L4-5. Dr. Shapiro also opined in a separate affirmation dated February 16, 2009, that he reviewed and disagreed with Dr. Tantleff's opinion that plaintiff's MRI anomalies were due to degeneration. [*5]

The affirmed opinion of Dr. Thomas Mannino, a radiologist dated January 28, 2009 also pertained to his review of the MRI of plaintiff's right shoulder and lumbar spine taken on May 18, 2007. Dr. Mannino stated that he reviewed plaintiff's medical records and Dr. Tantleff's affirmed report of March 27, 2008 and that he also disagreed with Dr. Tantleff's findings that plaintiff's MRI anomalies were degenerative in nature. Dr. Mannino also specifically found that the disc herniations at L3-4 and L4-5 were causally related to the subject accident.

The affirmation of Dr. Shahid Mian, an orthopedic surgeon, dated February 16, 2009 pertained to his examination of the plaintiff on November 6, 2007 and January 24, 2008. The affirmed report of Dr. Aric Hausknecht, a neurologist, dated February 5, 2009 contained the details of his physical examination and range of motion testing conducted on the date of his report. Dr. Hausknecht's also affirmed a report of an electro diagnostic study which he conducted on February 5, 2009, and opined that the study revealed radiculopathy at L4-5.

The affirmation from Dr. Leslie Theodore, plaintiff's treating internist, dated November 24, 2008 authenticated her annexed medical office records, and explained the results of her physical examination and range of motion testing conducted on October 17, 2006. Dr. Theodore found that plaintiff suffered range of motion loss in the cervical spine of 44% in left and right rotation, 20% loss in extension and 25% loss in forward flexion. She also found range of motion loss in the lumbar spine of 25% in left and right lateral flexion, 25% loss of extension and a 50% loss of forward flexion.

The supplemental affirmations of Drs. Leslie Theodore and Aric Hausknecht establishes the following. Dr. Theodore, affirms that she was aware of plaintiff's prior accident in 1994, and did not deem it significant because plaintiff had made a full recovery from that accident. She based her opinion on a review of plaintiff's medical records and medical history. Dr. Theodore opined to a reasonable degree of medical certainty that the current injuries for which she treated the plaintiff were caused by the subject accident. Similarly, Dr. Hausknecht affirmed that plaintiff was treated for and recovered from the injuries caused by the 1994 accident; and that he was asymptomatic prior to the subject accident. Dr. Hausknecht opined to a reasonable degree of medical certainty that plaintiff's current injuries were caused by the subject accident.

CONCLUSION

After reviewing the defendants' prior motion papers, the plaintiff's prior opposing papers and the instant motion papers, the court finds for the reasons set forth below, that the subject order is erroneous and that defendants' prior motion to dismiss plaintiff's complaint for failure to sustain a serious injury should be denied. Plaintiff met his burden of raising a triable issue of fact as to the "significant limitation of use of a body function or system" category of section 5012(d) of the Insurance Law. The objective medical evidence submitted by plaintiff's experts include their assignment of quantitative [*6]measurements to plaintiff's loss of range of motion, and their averments that their opinions were based on MRIs and recent medical examination. The Court of Appeals has held that a limitation is significant or consequential if there is 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., Inc., 98 NY2d 345 at 353 [2002]).

Dr. Theodore, plaintiff's treating internist conducted a physical examination and range of motion testing on October 17, 2006. This was approximately one month after the subject accident. Dr. Theodore found, among other things, range of motion limitations in rotation of the cervical spine of 44% caused by the subject accident. Although a diagnosis of disc herniations my constitute a serious injury within the meaning of the Insurance Law, the plaintiff is required to provide objective evidence of "the extent or degree of physical limitation" by means of "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion .... [or][a]n expert's 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 ..."(Id. at 350). Evidence of range of motion limitations, coupled with positive MRI and nerve conduction test results are sufficient to defeat summary

(see Brown v. Achy, 9 AD3d 30 [1st Dept. 2004]).

Drs. Shapiro and Mannino, plaintiff's radiologists, both reviewed the MRI of plaintiff's right shoulder and lumbar spine taken on May 18, 2007. Both disagreed with Dr. Tantleff's conclusions that the herniations at L3-4 and L4-5 were degenerative. Dr. Mannino specifically found that the disc herniations at L3-4 and L4-5 were causally related to the subject accident. The originally submitted and supplemental affirmations of Drs. Leslie Theodore and Aric Hausknecht adequately address plaintiff's 1994 motor vehicle accident to show that his current injuries are causally related to the subject accident. This is sufficient to satisfy plaintiff's burden to demonstrate a disputed issue of fact on whether he sustained a serious injury as defined by Insurance Law § 5102(d) caused by the subject accident (see Thompson v. Abbassi, 15 AD3d 95, 97 [1st Dept., 2005]).

Therefore, the court vacates so much of its prior order dated May 15, 2009, which granted defendants' motion to dismiss the plaintiff's complaint and by this decision and order denies defendants' motion to dismiss plaintiff's complaint.

The foregoing constitutes the decision and order of this court.

-x

J.S.C.

Enter forthwithx

J.S.C.