Robinson-Lewis v Grisafi

[*1] Robinson-Lewis v Grisafi 2009 NY Slip Op 52850(U) Decided on August 31, 2009 Supreme Court, Nassau County Palmieri, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2009
Supreme Court, Nassau County

Rosetta Robinson-Lewis, Plaintiff,

against

Pasquale V. Grisafi, Defendant.



017796/06



Joseph B. Fruchter, Esq.

Attorneys for Plaintiff

140 Fell Court

Hauppauge, NY 11788

Richard T. Lau & Associates

By: Keith E. Ford, Esq.

Attorneys for Defendant

P.O. Box 9040

Jericho, NY 11753

Daniel Palmieri, J.

This motion for summary judgment by the defendant pursuant to CPLR 3212 and Insurance Law § 5104 is granted and the complaint is dismissed. [*2]

This is an action for personal injuries stemming from an accident that occurred on October 29, 2003. Defendant moves for summary judgment on the ground that the plaintiff has not suffered a "serious injury" as defined by Insurance Law § 5102(d) , and thus has no claim against him pursuant to Insurance Law § 5104 (a).

"Serious injury" is defined by § 5102(d) of the New York Insurance Law as follows: "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 sue 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 persons' usual and customary daily activities for not less than ninety days during one hundred and eighty days immediately following the occurrence of the injury or impairment."

Insurance. Law § 5102(d)).

In her bill of particulars the plaintiff alleges that she sustained 1) a "permanent loss of use" of a body, organ, member function or system, 2) a "permanent consequential limitation of use of a body function or system", 3) a "significant limitation of use of a body organ or member," and 4) a non-permanent injury that satisfies the "90/180" category.The foregoing is based on claims asserted in her bill of particulars, and in two supplementary bills, that she suffered cervical trauma and pain, cervical disc herniation and bulging discs, with decreased range of motion of the cervical spine, with loss of consciousness. She further claims trauma and pain on the left side of her body (arm, elbow, hand, wrist), cubital and carpel tunnel syndrome in her hand and elbow, and cervical and lumbar radiculopathy. Finally, she alleges that she underwent a cervical diskectomy with interbody spacers and fusion,, anterior plating with a bone graft and bone marrow aspiration.

In support of their motion, the defendants present plaintiff's testimony at her examination before trial, and at an examination before trial conducted in another personal injury case in which the plaintiff claimed she had been injured in a fall at a supermarket in March of 2003, about seven months earlier. This fall was prior to the automobile accident that is the subject of the present action. Defendant also presents medical evidence in the form of an MRI study report conducted after the supermarket accident but before the automobile accident, and the affirmed reports of two physicians who examined the plaintiff on behalf of the defendant. Jay Nathan, M.D., performed an orthopedic examination, and Maria Audrie DeJesus, M.D., performed a neurological examination.

The Court finds that this proof constitutes prima facie proof that no "serious injury" was suffered, sufficient to shift the burden to the plaintiff to demonstrate that such an injury exists. See, Toure v Avis Rent-A-Car Sys., 98 NY2d 345 (2002); Taylor v Zhao, 279 AD2d 518 (2d Dept. 2001); Nisnewitz v Renna, 273 AD2d 210 (2d Dept. 2000), lv den 96 NY2d [*3]705 (2001); Grossman v Wright, 268 AD2d 79 (2d Dept. 2000).

While the evidence presented by the defendant, including the reports of Dr. Nathan and Dr. DeJesus, indicates that there had been the disc surgery alleged in the bill of particulars, and restrictions on motion of the cervical spine incident thereto, the record also demonstrates, prima facie, that the cause of these injuries was the slip and fall and not the subject automobile accident. The plaintiff's testimony in both this action and in the action she commenced as a result of the fall acknowledged that the prior fall, which as noted was only some seven months prior to the subject automobile accident, involved the same parts of her body and had led to all her injuries and treatment, excepting a laceration on her forehead. Further, the disc herniations were noted in an MRI report from an MRI taken on May 5, 2003, which was after the slip and fall but before the subject automobile accident. This is evidence that the subject accident was not the cause of the herniations, the subsequent surgery and the alleged permanent injuries. See, Moses v Gelco Corp., 63 AD3d 548 (1st Dept. 2009); Becerril v Sol Cab Corp., 50 AD3d 261 (1st Dept. 2008); Style v Joseph, 32 AD3d 212 (1st Dept. 2006); Correa v City of New York, 18 AD3d 418, 420 (2d Dept. 2005); Kupka v Emmerich, 2 AD3d 595 (2d Dept. 2003).In addition, the plaintiff's admissions in her EBT that she lost almost no time from work proves, prima facie, that she did not suffer an injury under the "90/180" category. See Onishi v N & B Taxe, Inc., 51 AD3d 594 (1st Dept. 2008) [absence from work for 11 days insufficient]; see also, Uddin v Cooper, 32 AD3d 270 (1st Dept. 2006) [even where absent for three months, no proof other daily activities hindered].

The burden thus shifts to the plaintiff to come forward with proof in admissible form creating issues of fact with regard to the existence of a serious injury caused by the subject automobile accident. See, e.g., Taylor v Jerusalem Air, Inc., 280 AD2d 466 (2d Dept. 2001), lv den 96 NY2d 716 (2001); Harney v Tombstone Pizza Corp., 279 AD2d 609 (2d Dept. 2001).

In her opposing papers the plaintiff contends that the subject accident exacerbated the injuries suffered in the fall and continues to the present time, affecting her life in a significant manner. This is contrary to statements made at her EBT, including the following: that at the time of the deposition she had pending appointments with doctors only for the March accident, not the subject automobile accident; that although there was an increase in pain in her neck after the automobile accident it subsided after treatment and returned to the level it had reached after her fall; and (as noted above) that the only additional injuries she suffered as a result of the automobile accident was a gash over her eyebrow. Statements made in an affidavit that are inconsistent with sworn deposition testimony cannot serve to defeat the motion. See, e.g., Central Irrigation Supply v Putnam Country Club Assocs., LLC, 27 AD3d 684 (2d Dept. 2006). Further, her affidavit statements regarding anxiety attacks and headaches are unsupported by any medical proof that they are causally related to the accident, as is her claim of eye pain and the need to now wear bifocals. She also complains about a scar on her forehead, but did not plead a "significant disfigurement", and presents no medical [*4]evidence regarding the same.

The expert statements she submits in opposition are likewise unavailing. Dr. William Sonstein is an orthopedist, but his affirmation merely recites the plaintiff's complaints to him, and does not substantiate his claim that her current complaints and injuries are causally related to the subject accident by way of reference to the medical record and descriptions of objective testing. The sole statement he makes in support of his conclusion is that "a neck injury with the symptomology presented by Ms. LEWIS is related to a whiplash injury that one might suffer in a motor vehicle accident when the neck is snapped forward and backward." (Emphasis added.) However, there is no reference to the prior accident in the supermarket, and whether that can be ruled out as the cause.

This is also true of the affidavit submitted by Charles Aronica, D.C., who, as to causation, states only that "the subject automobile accident may be the competent producing cause of the severe headaches and cervical and left arm injuries." (Emphasis supplied.) Absent an analysis of the medical record and an explanation as to why the prior slip and fall could not be the cause of her current injuries, the conclusions of these experts as to causation amounts to little more than speculation, and do not create issues of fact sufficient to defeat the motion. Penaloza v Chavez, 48 AD3d 654 (2d Dept. 2008); Vidor v Davila, 37 AD3d 826 (2d Dept. 2007); Cervino v Gladysz-Steliga, 36 AD3d 744 (2d Dept. 2007); cf., Sanz v MTA-Long Is. Bus, 46 AD3d 867 (2d Dept. 2007). It also should be noted that neither expert addressed the "90/180" category, nor the scar.

Accordingly, the motion should be granted.

This shall constitute the Decision and Order of this Court.

E N T E R

DATED: August 31, 2009

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice