Ramos v Useda-Espinal

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Ramos v Useda-Espinal 2009 NY Slip Op 33304(U) October 8, 2009 Supreme Court, Suffolk County Docket Number: 08-5356 Judge: John J.J. Jones Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 08-5356 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 10 - SUFFOLKCOUNTY PRESE'NT: ___._--.----_ _ _ . _ _ - . . I _ _ _ - _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ - - - _ - - - - - ---" _ MOTION DATE 3-1 1-09 ADJ. DATE 6-3-09 Mot. Seq. # 001 - MD JOHN J.J. JONES, JR. Justice of the Supreme Court 1 l(m _ l -----X JOSE i I. TUiMOS a d ROSA REYES, Plaintiffs, RUSSO, KEANE & TONER, LLP Attorneys for Defendant 33 Whitehall Street, 16IhFloor New York, New York 10004 - against - S A N D R A iJSL'DA-ESPWAL, Defendant. ---_-_._._-- CANNON & ACOSTA, LLP Attorneys for Plaintiffs 1923 New York Avenue Huntington Station, New York 11746 : X ROBERT P. TUSA, ESQ. Attorneys for Plaintiff Ramos, on Counterclaim 898 Veterans Memorial Highway Hauppauge, New York 11788 l i p ~ the l'ollnwing papers numbered 1 to 2 read on this motion for summary iudament ; Notice ofMotiod Order ~: 9 Sho\v C ~ L I and supporting papers 1 - 17 ; Notice of Cross Motion and supporting papers -; Answering Affidavits and SC supporting papers 18; - 26 ; Replying Affidavits and supporting papers 27 - 28 ; Other -; - ( slrrPrrtRnAQTm) it is, to ORDEREL) that the inoticin by defendant Sandra Useda-Espinal for summary judgment dismissing the complaint against her is denied. Plaintiffs Jose Ramos and Rosa Reyes, who are husband and wife, commenced this action to reco\,cr dan iages for personal injuries allegedly sustained in a motor vehicle accident that occurred in the 'Jown of Is1 rp on Scptcmber 16,2007. The accident allegedly happened when a vehicle driven by defendant Sandra Useda-Espinal collided with the rear of a vehicle operated by plaintiff Jose Ramos (hcrcinaftcr Rarno:;) Plaintiff Rosa Reyes (hereinafter Reyes) allegedly was riding as a passenger in the vchicle tft ivcti by lier husband at the time of the accident. The answer denies the allegations of ncgligcncc :md intcrposes a counterclaim against Ramos. Plaintiffs' bill of particulars alleges Ramos sut'fcrcd L ~ ious inpries due to the accident, including a meniscal tear, synovitis and internal I derangcmert o f the right knee; a rupture of the medial collateral ligament and internal derangement of thc right clhow; a disc herniation at level L4-L5 and a disc bulge at level L5-Sl; and lumbar r;idiculopatli\i 4 s to Reyes, it alleges that she sustained a disc bulge at level L3-L4, cervical sclerosis, [* 2] Ratnos v (1 sotla-fspinal Indcx No. OF;-5356 Paye N o _? an11c e n tcal and lumbar sprains and strains as a result of the accident. The bill of particulars also alleges ihnt plaintiff sustainecl, inter alia, significant limitations of use and medically-determined injuries of a noiipcrnianci 1 nature that prevented them from performing their usual and customary activities for at Ica\t 90 (la!,\ out o Lhe I80 days immediately following the accident. f iil,>wmoves for summary judgment dismissing the complaint on the ground that preclutled under Insurance Law 9 5104 from recovering for non-economic loss, as they did not w f l ~ r ~ci-iou~ injury within the meaning of Insurance Law 8 5102 (d). Defendant s submissions i n \upport o f the motion include copies of the pleadings and plaintiffs bill of particulars; transcripts of thc dcpo\iti~ii testimony of Ramos and Reyes; and sworn medical reports prepared by Dr. Mathew Cliacko antl 111. Stuart Kandel. At defendant s request, Dr. Chacko, a neurologist, and Dr. Kandel, an orthopedist, cxxaniiiied plaintiffs in December 2008 and reviewed medical records relating to the injuries alleged i n t h i \ action. Plaintiffs oppose the motion, arguing that defendant s submissions are insufficient to \lion pi IIT I facie th,it they did not sustain a serious injury as a result of the accident. Alternatively, :it that medical evidence offered in opposition to the motion, particularly the affidavits of p l ~ i n tI iI$. I I eating chiropractor, Nicholas Martin, raises triable issues of fact. Dclct idant p1;iintiffs at c In\ui incc Law 4 5102 (d) defines serious injury as a personal injury which results in death; tllsmcinber m i i t ; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ. inctiil 1ci , function or system; permanent consequential limitation of use of a body organ or Incmbci: signlficani liinitation of use of a body function or system; or a medically determined injury or itnpairiiicnf ol a non-permanent nature which prevents the injured person from performing substantially all of the niatcrial acts which constitute such person s usual and customary daily activities for not less than ninety c ;ivs d u r i n g the one hundred eighty days immediately following the occurrence of the injury or iinpatrnieiit A. de endnnl seeking summary judgment on the ground that a plaintiff s negligence claim is barred No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a serious injury (see Toure v Avis Rent A Cur Sys., supra; Guddy v Eyler, 79 NY2d 055 <82 NYS2d 990 [ 19921). When a defendant seeking summary judgment based on the lack of ~crtous inliii 1 rclicx on the findings of the defendant s own witnesses, those findings must be in d r n i g ~ i b l corin. 1.1 affidavits and affirmations, and not unsworn reports to demonstrate entitlement to I ludgiiient :I\ <I matter of law (Pagano v Kingsbury, 182 AD2d 268, 270, 587 NYS2d 692 [2d Dept 100211 A defendant also may establish entitlement to summary judgment using the plaintiff s deposition testimony a i d inctlical reports and records prepared by the plaintiff s own physicians (see Frugale v iiiitler tlie . Geiger. 288 AD2d 73 I , 733 NYS2d 901 (2d Dept 20011; Torres v Micheletti, 208 AD2d 519, 616 NYS2d 100t) 12tl Depi 1994); Craft v Bruntuk, 19s AD2d 438,600 NYS2d 251 [2d Dept 19931; Pugano 1 Kingvhury. \rqmr). Once a defendant meets this burden, the plaintiff must present proof in admissible form u hicli I.ieate\ a material issue of fact (see Gaddy v Eyler, supra; Puguno v Kingsbury, supra; see qc~irc~rrill\1 Zztckerrnan v City of Nepw York, 49 NY2d 557, 427 NYS2d 595 [ 19801). The. c~vit1cnc.e 5,ubmittedby defendant in support of her motion fails to establish prima facie that Ramos antl Itcyec did not suffer serious injury as a result of the subject accident (see Kusper v N & J 7axi. Inc. 00 AD31 $110, 876 NYS2d 120 [2d Dept 20091; Rahmun v Surpaz, 62 AD3d 979, 880 [* 3] NJ S2d 125 12d Dcpt 20091; Hurtte v Budget Roadside Care, 54 AD3d 362,861 NYS2d 949 [2d Dept 21108j:Jenkins v hli1e.d Hacking Corp., 43 AD3d 393, 841 NYS2d 3 17 [2d Dept 20071). As to Ramos, the report I )f Di-.Chacko states, among other things, that active range of motion testing of the cervical .;pine reve,il :cl 50 degrees of flexion (50 degrees normal), 40 degrees of extension (60 degrees normal), lateral rotation of 60 degrees (80 degrees normal), and lateral flexion of 30 degrees (45 degrees normal). It states t h d t testing of the lumbar spine revealed 45 degrees of flexion (60 degrees normal), extension of 1 5; degree\ ( 2 5 degrees normal), and lateral flexion of 15 degrees (25 degrees normal). Dr. Chacko, who cu;-liiiincdplaintiff approximately 14 months after the subject accident, asserts in his report that while rcstrict ions n spinal function were detected during active range of motion testing, these voluntary moverncnts arc fully under the control of the person being examined and hence not a truly objective finding. t 1 c fiirthcr opines that there is no evidence of any neurological disability, and that plaintiff is ahlc to work and pi:rfimn all the activities of daily living. However, as Dr. Chacko failed to explain or to sub\tantiate witli ol3jective medical findings his conclusion that the restrictions measured during range of motion tcsting were self-imposed, this conclusion is insufficient to negate his findings of limited slmal inoveinent (,see Mnriera vnurangu,- AD3d -, 2009 NY Slip Op 06412 [2d Dept 20091; Colon v Cli w n .Sum Clzu, 61 AD3d 805, 878 NYS2d 127 [2d Dept 20091; Busljeta v Plandome Leasin,q, I n ( * . . 57 /ID3d 469, 870 NYS2d 366 [2d Dept 20081). 1 Siin Inrlj, Ilr. Kandel s report states, in relevant part, that Ramos, who testified at deposition that he untfeme,it surgilcal procedures just months after the accident for injuries in his right knee and right elbow. hati 1 1 0 degree flexion contracture with unrestricted flexion of 150 degrees in his right elbow. Lk.Kandel, like Dr. Chacko, does not offer any other possible cause for the finding of a loss of extension ir Ramos s right elbow due to a contracture, stating only that the examination of the elbow rcvc;iled a mild rcstriction of extension of 10 degrees but was otherwise within normal limits (see Letts 1 Rleiclzner, 56 AD3d 619, 868 NYS2d 92 [2d Dept 20081; Guzman v Joseph, 50 AD3d 741, 855 NYS2ti 6.38 [2d Dcpt 20081; Sullivan v Johnson, 40 AD3d 624, 835 NYS2d 367 [2d Dept 20071). The c ourt notcs that while Dr. Kandel states in his report that Ramos demonstrated normal movement in his lumbosacra I spine during the examination, the discrepancy in the medical findings of defendant s cxperts regarding the degrees of spinal joint function creates a credibility issue for a jury (see Francis v H~sic MctuI, 144 12D2d 634, 534 NYS2d 697 [2d Dept 19881; see generally S.J. Capelin Assoc. v Globe M f i . C orp.. 34 NY2d 338, 357 NYS2d 478 [1974]). Thus, the reports by defendants medical experts rais: triablc 1:isUes as to whether Ramos suffered significant limitations of use due to injuries suf fercd i n h e accident. A<\to Reycs, the medical reports of defendants experts fail to address the claim set forth in plaintiffs 1-111 of particulars that she suffered serious injury within the 90/180 category. To qualify as a serious injury witl-iin the 90/180 category, there must be objective medica1 evidence of a medically- clctcnnined iiijul-y or impairment of a non-permanent nature, as well as evidence that plaintiffs activities were signif 4cantly curtailcd due to such injury (see Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 [ 1 O X 2 1; Hawtilion v Rouse, 46 AD3d 5 14, 846 NYS2d 650 [2d Dept 20071; Ocasio v Henry, 276 AD2d 01 1, 7 14 U Y S2d 1 39 [ 2d Dept 20001). In addition to demonstrating an inability to perform .substmtia ly all usual activities for at least 90 days of the 180 days following the accident, a plaintiff asscrfing 1 W l X 0 claim must show through competent medical evidence that his or her inability to pcl-fimn such activities was medically indicated and causally related to the subject accident (see [* 4] Rainos v I lsxla-Espinal Indcx No. OX-5356 Pagc ho. 4 Penaloza 1' tl'lzuvea, 45 AD3d 654, 852 NYS2d 3 15 [2d Dept 20081; Hamilton v Rouse, supra; Roman v Fast L a m Cur Serv., Inc., 46 AD3d 535, 846 NYS2d 613 [2d Dept 20071; Sainte-Aime v Ho, 274 4D2d ' W I 12 NY'S2d 133 [2d Dept 20001). H u c , R e p , testified at her deposition that, with the exception of one day of work in September 3007, \lie WAS confincd to home for approximately four months due to injuries suffered in the accident. Skit tcwtictl that she was directed not to work by her treating chiropractor, Dr. Martin, and that she rccei\rcd I-cgular chiropractic treatments for back pain for more than one year. Despite such testimony, both Dr . C'hilcko ai id Dr. Kandel fail to address the claim that Reyes suffered an injury within the 90/180 category (sw Tukarq1;fv A.M. USA, Inc., 63 AD3d 1142, 882 NYS2d 265 [2d Dept 20091; Rahman v Sarpai., s z i p i ~ i ,Greonidge v Righton Limo, Znc., 43 AD3d 1109, 841 NYS2d 791 [2d Dept 20071; Sayers v Hot, 23 AD3d 453, 805 NYS2d 571 [2d Dept 20051). Thus, defendants failed to make a prima facie s1iou.11 that fie yes's claim for damages is barred under the No-Fault Insurance Law (see Negassi v ~g Royle, - . AD3d , ;!009 Slip Op 06816 [2d Dept 20091; Ismail v Tejeda, 65 AD3d 518, 882 NYS2d 9 I 5 1 Ztl I3cyt 200G i TukaroJf v A.M. USA, Inc., szipra; Rahman v Sarpaz, supra). ; Accordingly, defendant's rnotion for summary judgment dismissing the complaint is denied. . - FINAL DISPOSITION X NON-FINAL DISPOSITION

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