Hee Jin Kim v Fowler

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[*1] Hee Jin Kim v Fowler 2009 NY Slip Op 52522(U) [25 Misc 3d 1240(A)] Decided on December 10, 2009 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 10, 2009
Supreme Court, Queens County

Hee Jin Kim, JUNG SOOK KIM, NA AI KIM and TAE HO KIM, Plaintiff(s),

against

John W. Fowler, Defendant(s).



00048/2008

Robert J. McDonald, J.



Defendants by notice of motion seeks an Order pursuant to 3212.

Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230). Initially it is defendant's obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345; Grossman v Wright, 268 AD2d 79). If the defendant s motion raises the issue as to whether the plaintiff has sustained a "serious injury" the burden shifts to the plaintiff to prima facie demonstrate through the production of evidence sufficient to demonstrate the existence of a "serious injury" in admissible form, or at least that there are questions of fact as to whether plaintiff suffered such injury (Gaddy v Eyler, 79 NY2d 955; Bryan v Brancato, 213 AD2d 577).

Insurance Law 5102 is the legislative attempt to "weed out frivolous claims and limit recovery to serious injuries" (Toure v Avis Rent-A-Car Systems, Inc., 98 NY2d 345, 350).

The underlying action is for personal injuries allegedly sustained as a result of a motor vehicle accident on September 10, 2007 within the State of New York.

Hee Jin Kim: [*2]

Dr. Daniel J. Feuer, M.D., a Neurologist, saw Hee Jin Kim for a neurological evaluation on February 24, 2009. Dr. Feuer submitted his affirmed report after reviewing the records. He conducted a neurological examination of Hee Jin Kim's head, cervical spine, lumbar spine, mental status, cranial nerves II-XII, motor, DTR's, sensory, coordination, and gait. Dr. Feuer found that Ms. Kim's neurological examination was within limits. "She does not offer any radicular or neuropathic complaints. EMG/NCV testing of the upper extremities reported normal findings." His Diagnosis was "Normal neurological examination".

Dr. Kenneth E. Seslowe, M.D., an Orthopedist, examined Hee Jin Kim on November 24, 2008 and submitted his affirmation as to her physical condition. His examination of head and neck, right shoulder, back and right knee all revealed normal movement. Dr. Seslowe wrote "My impression is that of a resolved cervical and lumbosacral strain, resolved contusion of the right knee, and resolved strain of the right shoulder."

The plaintiff submits the affidavit of Dr. Jae O. Park, M.D., practicing Internal Medicine and Physical Medicine and Rehabilitation, sworn to November 3, 2009. Dr. Park states he saw Hee Jin Kim initially on September 12, 2007 and she has "consistently" been treated by him from that date. He opines that Ms. Kim's "condition is permanent and any medical treatment she receives are palliative in nature". His "objective" range of motion tests of Ms. Kim's cervical spine on September 12, 2007 and April 2, 2009 indicated that she had a decreased range of motion. Similarly, Dr. Park conducted an "objective" range of motion tests of Ms. Kim's lumbar spine on September 12, 2007 and April 2, 2009 which indicated a decreased range of motion. On September 12, 2007 and April 2, 2009 Dr. Park conducted "objective" range of motion tests with regard to Ms. Kim's right knee which indicated that she had a decreased range of motion. On the same two dates Dr. Park examined Ms. Kim's right shoulder which showed a decreased range of motion. On April 2, 2009 he noted tenderness "in the cervical region at Occiput, through C-2, C-5 through C-7, in the thoracic region at T-1 through T-4, in the lumbar region at L-3 through L-5, and at both knees." He referred Ms. Kim to Kissena Medical Imaging for MRI studies performed October 22, 2007 of Ms. Kim's lumbar spine, an MRI of Ms. Kim's cervical spine conducted October 15, 2007, an MRI of Ms. Kim's right knee conducted November 7, 2007, and an MRI of Ms. Kim's right shoulder performed October 29, 2007. Dr. Park found that with regard to the injuries she received in the accident that Ms. Kim can expect "chronic pain" "weakness" "arthritic changes" and she has sustained "permanent injuries" which will prevent her from "her usual and customary daily activities" which have "resulted in the permanent consequential limitation of use of a body organ or member. The injuries have resulted in a permanent consequential limitation of use of the patient's neck, back, right shoulder and right knee. There is a significant limitation of use of the patient's neck back, right shoulder and right knee."

Jung Sook Kim:

Dr. Daniel J. Feuer, M.D., a Neurologist, saw Jung Sok [sic] Kim for a neurological evaluation on February 24, 2009. Dr. Feuer submitted his affirmed report after reviewing the records. He conducted a neurological examination of Hee Jin Kim's head, cervical spine, lumbar spine, mental status, cranial nerves II-XII, motor, DTR's, sensory, coordination, and gait. Dr. Feuer found [*3]that Ms. Kim's neurological examination was within limits. "She does not offer any radicular or neuropathic complaints. EMG/NCV testing of the upper and lower extremities reported normal findings. The claimant was able to tolerate needle EMG testing of the paraspinal muscles despite the reported finds of spasm'". His Diagnosis was "Normal neurological examination".

Dr. Kenneth E. Seslowe, M.D., an Orthopedist, examined Jung Sook Kim on February, 13 2009 and submitted his affirmation as to her physical condition. His examination of her cervical spine and upper extremities , back and lower extremities, and left knee all revealed normal movement, except forward flex and internal rotation which was 80 with a normal reading of 90 . Dr. Seslowe wrote "My impression is that by history she sustained strains of her neck, back, left shoulder and left knee. I do not see evidence of a herniated disc or radiculitis, I do not see evidence of rotator cuff tear or derangement of the left knee. She is working. I feel that the MRIs should be read by an independent neuroradiologist."

No independent neuroradiology report was submitted.

The plaintiff submits the affidavit of Dr. Jae O. Park, M.D., practicing Internal Medicine and Physical Medicine and Rehabilitation, sworn to November 2, 2009. Dr. Park states he saw Jung Sook Kim i/p/a Jung Sook Lee , initially on September 12, 2007 and she has "consistently" been treated by him from that date. He opines that Ms. Jung Sook Kim's "condition is permanent and any medical treatment she receives are palliative in nature". His "objective" range of motion tests of Ms. Jung Sook Kim's cervical spine on September 12, 2007 and April 2, 2009 indicated that she had a decreased range of motion. Similarly, Dr. Park conducted an "objective" range of motion tests of Ms. Jung Sook Kim's lumbar spine on September 12, 2007 and April 2, 2009 which indicated a decreased range of motion. On September 12, 2007 and April 2, 2009 Dr. Park conducted "objective" range of motion tests with regard to Ms. Jung Sook Kim's left knee which indicated that she had a decreased range of motion. On the same two dates Dr. Park examined Ms. Jung Sook Kim's left shoulder which showed a decreased range of motion. On April 2, 2009 he noted tenderness "in the cervical region at Occiput, through C-2, C-5 through C-7, in the thoracic region at T-1 through T-4, in the lumbar region at L-3 through L-5, and at both knees." He referred Ms. Jung Sook Kim to Kissena Medical Imaging for MRI studies performed October 22, 2007 of Ms. Jung Sook Kim's lumbar spine, an MRI of Ms. Jung Sook Kim's cervical spine conducted October 15, 2007, an MRI of Ms. Jung Sook Kim's left knee conducted November 7, 2007, and an MRI of Ms. Jung Sook Kim's left shoulder performed October 29, 2007. Dr. Park found that with regard to the injuries she received in the accident that Ms. Kim can expect "chronic pain" "weakness" "arthritic changes" and she has sustained "permanent injuries" which will prevent her from "her usual and customary daily activities" which have "resulted in the permanent consequential limitation of use of a body organ or member. The injuries have resulted in a permanent consequential limitation of use of the patient's neck, back, left shoulder and left knee. There is a significant limitation of use of the patient's neck back, left shoulder and left knee."

Tae Ho Kim: [*4]

Dr. Daniel J. Feuer, M.D., a Neurologist, saw Tae Ho Kim for a neurological evaluation on February 24, 2009. Dr. Feuer submitted his affirmed report after reviewing the records. He conducted a neurological examination of Tae Ho Kim's head, cervical spine, lumbar spine, mental status, cranial nerves II-XII, motor, DTR's, sensory, coordination, and gait. Dr. Feuer found that Mr. Kim's neurological examination was within limits. Dr. Feuer found after examination that Mr. Kim "does not demonstrate any objective neurological disability". His Diagnosis was "Normal neurological examination".

Dr. Kenneth E. Seslowe, M.D., an Orthopedist, examined Jung Sook Kim on February, 13 2009 and submitted his affirmation as to his physical condition. His examination of her [sic] cervical spine and upper extremitie , back and lower extremities, and left knee which revealed no effusion, all revealed normal movement. Dr. Seslowe wrote "My impression is that of a resolved cervical and lumbosacral sprain, and resolved strain of the left shoulder and left knee. He has no pathology with reference to the right shoulder or right knee with no complaints. I feel the MRIs should be read by an independent neuroradiologist."

No independent neuroradiology report was submitted.

The plaintiff submits the affidavit of Dr. Jae O. Park, M.D., practicing Internal Medicine and Physical Medicine and Rehabilitation, sworn to November 3, 2009. Dr. Park states he saw Tae Ho Kim initially on September 12, 2007 and he has "consistently" been treated by him from that date. He opines that Mr. Kim's "condition is permanent and any medical treatment she receives are palliative in nature". His "objective" range of motion tests of Mr. Kim's cervical spine on September 12, 2007 and April 2, 2009 indicated that he had a decreased range of motion. Similarly, Dr. Park conducted an "objective" range of motion tests of Mr. Kim's lumbar spine on September 12, 2007 and April 2, 2009 which indicated a decreased range of motion. On September 12, 2007 and April 2, 2009 Dr. Park conducted "objective" range of motion tests with regard to Mr. Kim's left knee which indicated that he had a decreased range of motion. On the same two dates Dr. Park examined Mr. Kim's left shoulder which showed a decreased range of motion. On April 2, 2009 he noted tenderness "in the cervical region at Occiput, through C-2, C-5 through C-7, in the thoracic region at T-1 through T-4, in the lumbar region at L-3 through L-5, and at both knees." He referred Mr. Kim to Kissena Medical Imaging for MRI studies performed October 17, 2007 of Mr. Kim's lumbar spine, an MRI of Mr. Kim's cervical spine conducted October 10, 2007, an MRI of Mr. Kim's left knee conducted November 75 2007, and an MRI of Mr. Kim's left shoulder performed October 24, 2007. Dr. Park found that with regard to the injuries he received in the accident that Mr. Kim can expect "chronic pain" "weakness" "arthritic changes" and she has sustained "permanent injuries" which will prevent him from "his usual and customary daily activities" which have "resulted in the permanent consequential limitation of use of a body organ or member. The injuries have resulted in a permanent consequential limitation of use of the patient's neck, back, left shoulder and left knee. There is a significant limitation of use of the patient's neck back, left shoulder and left knee."

There are the undated affirmations of Dr. Richard A. Heiden, M.D. a radiologist, who performed all the MRIs referred to above with the MRIs attached to each exhibit.

Under Insurance Law 5102(d) a permanent consequential limitation of use of a body organ or member qualifies as a "serious injury", however, the medical proof must establish that the plaintiff suffered a permanent limitation that is not minor slight, but rather, is consequential which is defined as an important or significant limitation.

Here the defendant has come forward with sufficient evidence to support her claim that the plaintiff has not sustained a "serious injury" (Gaddy v Eyler, 79 NY2d 955). A bare conclusory statement by the defendant's orthopedist such as the plaintiff's "decreased range of motion is due to degenerative changes that are pre-existing" fails to adequately challenge the plaintiff's position and the plaintiff, therefore, need not respond (Alvarez v Dematas, ___AD3d___ [2009 NY Slip Op 06227) ; Landman v Sarcona,63 AD3d 690; Powell v Prego, 59 AD3d 207).

To establish that the plaintiff has suffered a permanent or consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, the plaintiff must demonstrate more than "a mild, minor or slight limitation of use" and is required to provide objective medical evidence of the extent or degree of limitation and its duration (Booker v Miller, 258 AD2d 783; Burnett v Miller, 255 AD2d 541). Resolution of the issue of whether "serious injury" has been sustained 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 v Green, 84 NY2d 795). Upon examination of the papers and exhibits submitted this Court finds that the plaintiff has raised triable factual issue as to whether the plaintiff has "permanent consequential" and "significant limitation" categories.

The question presented as to the difference between the measurements of the plaintiff and defendant create an issue of fact for the jury (Martinez v Pioneer Transportation Corp., 48 AD3d 306).

Generally, an unexplained cessation of medical treatment may be fatal to the plaintiff's claim of a significant or permanent consequential limitation (Baez v Rahamatali, 24 AD3d 256 aff'd 6 NY2d 868) Adiagnosis of permanency having been sustained by the plaintiff obviates the need for further treatment and, therefore, there is no "gap" in treatment (Pommells v Perez, 4 NY3d 566). Also, a finding by the treating physician that continued treatment would be merely palliative can be considered a sufficient explanation for cessation of treatment (Toure v Avis Rent A Car Systems, 98 NY2d 345; Turner-Brewster v Arce, 17 AD3d 189). Further, a statement by the plaintiff that he stopped treatment after no-fault benefits were terminated because of his penury is not, by itself, grounds for dismissal (Delorbe v Perez, 59 AD3d 491).

The plaintiff has failed to demonstrate that he has a "medically determined" injury or impairment which has prevented his from performing all of his usual and customary daily activities for at least 90 of the first 180 days following the accident. (Ayotte v Gervasio, 81 NY2d 1062; Johnson v Berger, 56 AD3d 725;Roman v Fast Lane Car Service, Inc., 46 AD3d 535). [*5]

With regard to the 90/180 rule, the defendant's medical expert must relate specifically to the 90/180 claim made by the plaintiff before dismissal is appropriate (See, Scinto v Hoyte, 57 AD3d 646; Faun Thau v Butt, 34 AD3d 447; Lowell v Peters, 3 AD3d 778). This is particularly so when the defendant's medical reports are conducted after a substantial time since the accident (Miller v Bah, 58 AD3d 815; Carr v KMP Transportation, Inc, 58 AD3d 783).

Regarding the "permanent loss of use" of a body organ, member or system the plaintiff must demonstrate a total and complete disability which will continue without recovery, or with intermittent disability for the duration of the plaintiff's life (Oberly v Bangs Ambulance, Inc., 96 NY2d 295). The finding of "Permanency" is established by submission of a recent examination (Melino v Lauster, 195 AD2d 653 aff'd 82 NY2d 828). The mere existence of a herniated disc even a tear in a tendon is not evidence of serious physical injury without other objective evidence (Sapienza v Ruggiero, 57 AD3d 643; Piperis v Wan, 49 AD3d 840).

Regarding "permanent limitation" of a body organ, member or system the plaintiff must demonstrate that he has sustained such permanent limitation (Mickelson v Padang, 237 AD2d 495). The word "permanent" is by itself insufficient, and it can be sustained only with proof that the limitation is not "minor mild, or slight" but rather "consequential" (Gaddy v Eyler, 79 NY2d 955).

The "significant limitation of use of a body function or system" requires proof of the significance of the limitation, as well as its duration (Dufel v Green, 84 NY2d 795; Fung v Uddin, 60 AD3d 992; Hoxha v McEachern, 42 AD3d 433; Barrett v Howland, 202 AD2d 383).

Accordingly, the defendant's motion is granted to the extent that none of the plaintiffs have demonstrated they were prevented from performing their usual and customary daily activities for at least 90 out of the first 180 days following the accident. However, there is a question of fact presented with regard to the claims that each plaintiff sustained "serious injury" with regard to "permanent limitation", "significant limitation of use of a body function or system", and "permanent loss of use" as defined in Insurance Law 5102, and defendant's motion is denied.

So Ordered.

Dated:December 10, 2009

_________________________

Robert J. McDonald, J.S.C.

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