Velez v Almonte
Annotate this CaseDecided on December 14, 2009
Supreme Court, Bronx County
Ricarda Velez, Plaintiff,
against
Luis Manuel Almonte and MIGUEL SIERRA, Defendants.
301944/08
Attorney for Plaintiff: Bruce A. Newborough, Esq.
Attorney for Defendants: Cary S. Nosowitz, Esq. of Baker, McEvoy, Morrissey & Moskovits, P.C.
Alexander W. Hunter Jr., J.
In this negligence action wherein plaintiff seeks damages for injuries sustained in a motor vehicle accident, defendants have moved for an order granting summary judgment and dismissal of the complaint on the ground that the plaintiff did not sustain a "serious injury" within the meaning of Insurance Law 5102(d).
This action arises out of a motor vehicle accident which occurred on April 10, 2006 at the intersection of 149th Street and Morris Avenue, in Bronx County. In her deposition, plaintiff states that as she was exiting a taxicab owned by defendant Sierra and operated by defendant Almonte, the taxicab moved forward suddenly and ran over her left foot. Plaintiff further testified that during the accident her right foot became twisted inside the vehicle and her back was struck by the rear passenger door.
The term "serious injury" is defined in Insurance Law 5102(d) as follows:
"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 nonpermanent 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 and eighty days immediately
following the occurrence of the injury or impairment.
In her verified bill of particulars (Defendant's Exhibit B), plaintiff alleges that as a result of the accident she suffers from a permanent consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, with respect to her left knee, right knee and lumbar spine. In addition, plaintiff [*2]submits that these injuries to her knees and back prevented her from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the accident.
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp. 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985).
Once the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action. Zuckerman v. City of New York, supra at 562. When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion. Sukljian v. Charles Ross & Sons Co, Inc. 69 NY2d 89, 98 (1986); Makaj v. Metropolitan Transport Authority, 18 AD3d 625, 626 (2d Dept. 2005).
In order to establish entitlement to summary judgment, a defendant must make a prima facie showing that the plaintiff did not suffer a serious injury within the meaning of the statute which is causally related to the subject accident. Gaddy v. Eyler, 79 NY2d 955, 956-957 (1992); Bent v. Jackson, 15 AD3d 46, 47 (1st Dept. 2005). Once this initial burden is met, the burden shifts to the plaintiff to produce competent medical evidence which creates a triable issue of fact as to whether the purported injury was "serious" and caused by the accident. Gaddy v. Eyler, supra; Rubenscastro v. Alfaro, 29 AD3d 436, 437 (1st Dept. 2006).
The court finds that defendants have met their burden of establishing entitlement to summary judgment based upon their medical submissions establishing that plaintiff did not sustain a serious injury to either of her knees or lumbar spine which is causally related to the April 10, 2006 accident.
In affirmed reports dated June 2, 2008 and October 12, 2008 (Defendant's Exhibit C), A. Robert Tantleff, M.D., a radiologist, concludes that any abnormalities in either of the plaintiff's knees or lumbar spine, as revealed in MRI examinations performed shortly after the accident, were the result of preexisting age-related degenerative changes unrelated to the April 10, 2006 accident. Dr. Tantleff further opined that none of the MRI films showed any evidence of acute or recent injury.In an affirmed report dated October 23, 2008 (Defendant's Exhibit D), John H. Buckner, M.D., an orthopedist, concludes that plaintiff suffered, at best, a minor left ankle injury as a result of the accident. In his report, Dr. Buckner notes that although plaintiff underwent arthroscopic surgery on both her left knee and right knee following the accident, the post-operative reports of the surgeon, Harvey Manes M.D. (Defendant's Exhibit E), demonstrate that plaintiff suffered from degenerative osteoarthritis in both knees as opposed to any acute injury.
In opposition to defendants' motion, plaintiff has submitted the affirmed medical reports of Colin Clarke, M.D., (Plaintiff's Exhibit B), Steven Brownstein. M.D., a [*3]radiologist who performed an MRI of plaintiff's right knee on July 24, 2006 (Plaintiff's Exhibit C), and Jeffrey Chess, M.D., a radiologist who performed an MRI of plaintiff's left knee and lumbar spine on May 16, 2006 (Plaintiff's Exhibit D). The court finds that these submissions fail to create a triable issue of fact as to causation.
Although Dr. Brownstein and Dr. Chess describe various abnormalities to the plaintiff's knees and lumbar spine in their reports, neither doctor described any of their findings as acute or consistent with recent trauma or attempted to link any of their findings to the April 10, 2006 accident. In addition, Dr. Brownstein's report notes degenerative changes in plaintiff's right knee.
The only specific reference to causation is contained in the affirmed report of Dr. Clarke which states "[s]ince there is no history of prior serious injury, disease or deformity, it is reasonable to assume that the current injuries are the result of the [4/10/06] accident."
In a case such as this where defendants have submitted "persuasive evidence that the plaintiff's pain and injuries were related to preexisting degenerative conditions," a plaintiff has the "burden of coming forward with evidence addressing the defendants' claimed lack of causation." Valentin v. Pomilla, 59 AD3d 184, 186 (1st Dept. 2009). See also Pommells v. Perez, 4 NY3d 566, 574-575 (2005); Franchini v. Palmieri, 1 NY3d 536, 537 (2003). Here neither Dr. Brownstein nor Dr. Chess addresses the issue of causation at all. Dr. Clarke's statement on causation, i.e, "it is reasonable to assume" that plaintiff's current injuries are the result of the accident, is speculative on its face. Moreover, Dr. Clarke states that he bases this conclusion on the fact that plaintiff has no prior history of disease or deformity. This is in direct contradiction to the findings of degenerative changes contained in the report of defendants' expert, Dr. Tantleff, as well as the report of plaintiff's own radiologist, Dr. Brownstein, and the post-surgical report of plaintiff's surgeon, Dr. Manes.
Dr. Clarke's report, therefore, is not sufficient to create a triable issue of fact as to whether the April 10, 2006 accident caused plaintiff to suffer a permanent consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system or rendered plaintiff incapable of performing her usual and customary activities during the 90 of the 180 days following the accident. Reyes v. Brito, 57 AD3d 395 (1st Dept. 2008); Eichinger v. Jone Cab Corp., 55 AD3d 364 (1st Dept. 2008); Reyes v. Esquillin, 54 AD3d 615 (1st Dept. 2008).
For the forgoing reasons, defendants' motion for summary judgment is granted.
This constitutes the decision and order of the court.
Dated: December 14, 2009
ALEXANDER W. HUNTER, JR.
J.S.C.
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