Madera v Gressey
Annotate this CaseDecided on December 18, 2009
Supreme Court, Bronx County
Gladys Madera, Plaintiff,
against
Heidi A. Gressey, MICHAEL COMANIONE, DAVID PEREZ and JUAN CERDA, Defendants.
7516/2005
For Plaintiff:
Steven I. Brizel, Esq.
Raymond Schwartzberg & Associates, PLLC
60 East 42nd Street, Suite 1166
New York, New York 10165
For Defendants Gressey and Comanione:
John E. Doran, Esq.
Law Offices of Steven I. Lubowitz
700 White Plains Road, Suite 309
Scarsdale, New York 10583
For Defendant Perez:
Cynthia Hung, Esq.
Baker, McEvoy, Morrissey & Mosovits, P.C.
330 West 34th Street, 7th Floor
New York, New York 10001
For Defendant Cerda:
Thomas M. Roach, Esq.
Mead, Hecht, Conklin & Gallagher
109 Spencer Place
Mamaroneck, New York 10543
Lucindo Suarez, J.
Upon the notice of motion of defendant David Perez dated May 1, 2009 and the affirmation, exhibits and memorandum of law submitted in support thereof; the notice of cross-motion of defendant Juan Cerda dated June 15, 2009 and the affirmation and exhibits submitted in support thereof; the notice of cross-motion of defendant Heidi A. Gressey dated September 2, 2009 and the affirmation and exhibits submitted in support thereof; the affirmation in opposition of defendant David Perez dated September 9, 2009 and the exhibit annexed thereto; the affirmation in opposition of plaintiff dated October 20, 2009 and the exhibits annexed thereto; the affirmation in reply of defendant Heidi A. Gressey dated November 12, 2009; the affirmation in reply of defendant David Perez dated November 12, 2009; and due deliberation; the court finds:
This lawsuit arises from a motor vehicle accident which occurred on August 6, 2003. All defendants, with the exception of Michael Comanione, against whom the action has been discontinued, seek summary judgment dismissing the complaint on the ground that plaintiff Gladys Madera ("Madera") fails to meet the serious injury threshold of Insurance Law § 5102(d). Plaintiff's bill of particulars alleges a midline subligamentous herniation at the C6-C7 level, a disc bulge at the C5-C6 level, aggravation of osteoarthritic changes at the L2-L3 and L3-L4 levels and impingement and diffuse tendonitis of the right rotator cuff. The bill of particulars does not specify under which categories of Insurance Law § 5102(d) serious injury is claimed.
Defendants have submitted evidence in the form of, inter alia, the affirmed report of neurologist Michael J. Carciente, M.D., who conducted a normal neurologic examination of plaintiff on December 17, 2008 and determined that there was no correlation between prior positive MRI findings and his examination, based upon his objective testing. Defendants also submitted the affirmed report of orthopedic surgeon Frank D. Oliveto, M..D., who examined plaintiff on December 9, 2008. Dr. Oliveto found full normal ranges of motion in plaintiff's shoulder and limited ranges of motion in plaintiff's cervical and lumbosacral spine. Dr. Oliveto characterized these limitations as subjective, as there was no spasm, tenderness, weakness, motor deficit or sensory deficit. He found the examination to be normal and Madera to be under no disability related to the motor vehicle accident. Defendants also submitted the affirmed report of radiologist Stephen W. Lastig, M.D., who reviewed the MRI of plaintiff's cervical spine conducted approximately two months after the accident. Dr. Lastig found multilevel degenerative disc disease and degenerative spondylosis. He found no focal herniations, cord compression or foraminal stenosis. He found a mild posterior disc bulge at the C6-C7 level mildly impressing the ventral subarachnoid space. He determined that the bulge was degenerative in nature and therefore not related to the accident. Defendants also submitted the testimony of plaintiff, who stated at deposition on June 10, 2008 that she was able to perform her activities, and complained only of pain. She also stated that she was confined to bed and/or home for only four (4) days.
Defendants' submissions establish, prima facie, that plaintiff has not sustained a "serious injury" in the accident. The burden therefore shifted to plaintiff to come forward with evidence in admissible form to raise a triable issue of fact.
Plaintiff's only medical evidence in admissible form was the affirmed narrative of neurologist Charles H. Bagley, M.D., who examined plaintiff on June 26, 2009. This report was [*2]insufficient to raise a triable issue of fact with respect to "serious injury." Although he claims to have treated plaintiff previously, he did not state that he reviewed any of plaintiff's medical records. Dr. Bagley found ranges of motion in plaintiff's cervical and lumbosacral spine that were nearly uniformly close to normal, and somewhat improved from the examinations submitted by defendants. He found markedly decreased ranges of motion in plaintiff's shoulder. Dr. Bagley, however, did not explain how he arrived at these findings or what tests were performed. See Vasquez v. Reluzco, 28 AD3d 365, 814 N.Y.S.2d 117 (1st Dep't 2006). Dr. Bagley also failed to address plaintiff's degenerative disc conditions, and stated that her limitations had been temporary and that the time frame during which her limitations persisted had long since passed. His neurological examination was otherwise normal, yet he stated that plaintiff's condition was worse. The "objective" findings that he noted with respect to the limitations of daily activities were in fact due to subjective complaints as relayed solely through plaintiff's explanations.
Given the expired temporal limitations to the curtailment of plaintiff's activities, plaintiff's testimony that she is able to perform her activities, plaintiff has failed to raise an issue of fact with respect to any category of serious injury involving permanency. Furthermore, although there are findings of limitations in ranges of motion, there is no evidence that these limitations are functionally significant. Finally, plaintiff's testimony regarding her confinement is insufficient to raise a triable issue of fact with respect to the 90/180 category of serious injury. The findings of bulges or herniations, without more to establish the extent and significant of plaintiff's limitations, are insufficient to raise issues of fact with respect to serious injury. See Pommells v. Perez, 4 NY3d 566, 830 N.E.2d 278, 797 N.Y.S.2d 380 (2005). The remainder of plaintiff's medical evidence was not in admissible form. See Vermette v. Kenworth Truck Co., 68 NY2d 714, 497 N.E.2d 680, 506 N.Y.S.2d 313 (1986). There was therefore no evidence contemporaneous with the accident.
Accordingly, it is
ORDERED, that the motion of defendant David Perez for summary judgment dismissing the complaint based upon the failure of plaintiff to meet the serious injury threshold of Insurance Law § 5102(d) in the motor vehicle accident of August 6, 2003 is granted; and it is further
ORDERED, that the cross-motion of defendant Juan Cerda for summary judgment dismissing the complaint based upon the failure of plaintiff to meet the serious injury threshold of Insurance Law § 5102(d) in the motor vehicle accident of August 6, 2003 is granted; and it is further
ORDERED, that the cross-motion of defendant Heidi A. Gressey for summary judgment dismissing the complaint based upon the failure of plaintiff to meet the serious injury threshold of Insurance Law § 5102(d) in the motor vehicle accident of August 6, 2003 is granted; and it is further
ORDERED, that the Clerk of the Court is directed to enter judgment in favor of defendants dismissing the complaint.
This constitutes the decision and order of the court.
Dated: December 18, 2009
____________________________ [*3]
Lucindo Suarez, J.S.C.
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