Abarca v Fournier

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Abarca v Fournier 2011 NY Slip Op 33176(U) November 30, 2011 Supreme Court, Nassau County Docket Number: 13877/09 Judge: Karen V. Murphy 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] Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 25 NASSAU COUNTY PRESENT: Murphv Justice of the Supreme Court v: Honorable Karen JOSE ABARCA, Index No. 13877/09 Plaintiff(s), Motion Submitted: 9/23/11 Motion Sequence: 001 -againstSTEPHEN R. FOURIER, Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply............................................................................. . Defendant moves this Court for an Order granting summary judgment in his favor and dismissing the complaint on the ground that plaintiff did not sustain a serious injur within 51 02( d). Plaintiff opposes the requested relief. the meaning of Insurance Law The motor vehicle accident giving rise to this action occurred on September 4 2008. Defendant' s motor vehicle struck plaintiff s motor vehicle in the rear. Plaintiff alleges that he sustained injuries to his cervical and lumbar spine areas , resulting in restricted range of motion and pain. Plaintiff claims that he has suffered serious injur within the meaning of the Insurance Law s permanent consequential limitation , significant limitation of use , and 90/180 categories of injury. It is well recognized that summary judgment is a drastic remedy and as such should (Andre only be granted in the limited circumstances 2d 131 (1974)). Summar judgment 35N. 2d361 , 320N. 2d 853 362N. should only be granted where the court finds as a matter oflaw that there is no genuine issue 2d 594 41 A. D.3d 755 , 837 N. where there are no triable issues offact. v. Pomeroy, as to any material fact. (Cauthers v. Brite Ideas, LLC, [* 2] (2d Dept. , 2007)). The Court' s analysis of the evidence must be viewed in the light most (Makaj v. Metropolitan favorable to the non-moving part, herein the plaintiff. 2d 621 (2d Dept. , 2005)). 18 A. D.3d 625 , 796 N. Transportation Authority, showing of A par moving for summar entitlement as a matter oflaw , offering sufficient evidence to demonstrate the absence of any prima facie judgment must make a (Winegrad v. New York Univ. Med. Center 64 N. 2d 851 , 476 2d 316(1985);Zuckerman v. City of New York 49N. Y.2d 557 , 404 E.2d642 , 487N. 2d 718 , 427 N. S.2d 595 (1980)). Here , defendant must demonstrate that the plaintiff did not sustain a serious injury within the meaning of Insurance Law Section 51 02( d) as a 32 A. 3d 527 819 N. (Felix v. New York City TransitAuth., result ofthis accident 835 (2d Dept. , 2006)). material issues of fact. plaintiff s deposition testimony, plaintiffs verified Bil of Pariculars, and the affirmed medical report of his examining orthopedic surgeon , John Leppard , M. D. Defendant's examining physician In support of his motion , defendant relies on inter alia, conducted his examination of plaintiff on January 26 2011 , almost two and one- half years post-accident. Plaintiff testified at deposition held on November 19, 2010 that he received frequent least four months following the accident and , with less frequency, for up to app oximately one year following the accident. Although plaintiff accompanied his son to the hospital following the accident, he did not receive any treatment there. Plaintiff is presently employed as a cook , and he works thirtfive to fort hours per week. Immediately after the subject accident , plaintiff missed only one week from work. He testified that he has trouble lifting heavy things , and experiences pain upon sitting, standing up, and walking. Plaintiff also testified that his neck is much better , and that he takes Tylenol when he has pain. As a result of his injuries sustained in the accident , plaintiff works less hours than he did before the accident and he can no longer play soccer. Aside from this testimony, plaintiff does not report any other specific chiropractic treatment as a result of the accident for at restrictions of his daily activities. own deposition testimony that a plaintiff did not sustain an injury of a non- permanent nature which prevented plaintiff from performing substantially all of the material acts which constitute plaintiffs A defendant may establish through presentation of a plaintiffs usual and customary daily activities for not less than 90 days during the 180 days (Kuperberg v. Montalbano 72 A. D.3d 903 , 899 Sanchez v. Willamsburg Volunteer of Hatzolah, Inc. , 48 2d 344 (2d Dept. D.3d 664 , 852 N. S.2d 287 (2d Dept., 2008)). immediately following the occurrence , 2010); [* 3] (Jackson Thus , as noted , defendants ' submission ofplaintiffs deposition testimony Batista v. Olivo 17 A; D.3d 2d 424 (2d Dept. , 2005); v. Colvert 24 A. D.3d 420 , 805 N. showing primafacie 2d 54 (2d Dept. , 2005)) is sufficient herein to make a 494 , 795 N. that the plaintiff did not sustain a serious injury within the meaning of Insurance Law ~ (Paul v. Trerotola 11 A. DJd 441 , 782 N. 90/180 category of that law. 5102(d) 2d 773 (2d Dept. , 2004)), under the With respect to that aspect of defendant's motion for summar judgment relative to the permanent consequential limitation and significant limitation categories of the Insurance Law regarding plaintiffs lumbar spine area , Dr. Leppard' s affirmed report establishes defendant's entitlement to that relief. Dr. Leppard' s examination of plaintiff revealed normal range of motion in plaintiffs lumbar spine. Dr. Leppard used a hand held goniometer to obtain the measurements , and he compared his findings to normal range of motion, setting forth all ranges of motion in his report. Dr. Leppard also conducted other orthopedic tests , which were negative , and plaintiff did not exhibit any neurological symptoms. Examining the report of defendant' s physician , there are sufficient tests conducted set forth therein to provide an objective basis so that their respective qualitative assessments of plaintiff could readily be challenged by any of plaintiff s expert( s) during cross examination (Toure v. Avis Rent A Car Systems, Inc., 98 at trial 79 N. 2d 345, 350 , 774 N. 2d 1197 , 746 N. 2d 990 (1992)). 955, 591 N. 2d 1176 , 582 N. , and be weighed by the trier of fact 2d 865 (2002); Gaddy v. Eyler, Although Dr. Leppard did not discuss the MRI findings upon which he relied in rendering his professional evaluation ofplaintiffs physical condition , it is undisputed that plaintiff underwent two MR examinations that reveal the existence of inter alia herniated discs in plaintiff s lumbar spine , with impingement on the neural canal. It is well settled that the mere existence of a herniated or bulging disc is not conclusive evidence of a serious injury in the absence of objective evidence of a related 2d 171 (2d Dept. (Knox v. Lennihan 65 A. D.3d 615 , 884 N. 2d 281 (2d 16 A. D.3d 45 , 789 N. disabilty or restriction 2009); Kearse v. New York City Transit Authority, Apparently, Dr. Leppard did not examine plaintiffs cervical spine on Januar 26 2011. During his deposition , plaintiff gave equivocal testimony as to whether his neck continued to bother him. It is noteworthy that plaintiffs chiropractor , Michael S. Roth , D. , did not conduct a cervical spine range of motion study when he re-examined plaintiff on August 4 , 2011. Thus , it appears that plaintiff has abandoned his claim with respect to his alleged cervical spine injury. [* 4] Dept. , 2005); see also Little v. Locoh 71 A. D.3d 837, 897 N. 2d 183 (2d Dept. , 2010)). Accordingly, and based upon Dr. Leppard' s findings that plaintiff has normal range of motion in his lumbar spine , and does not suffer from a disabilty, defendant has established his entitlement to summary judgment as a matter of law with respect to the permanent consequential limitation and significant limitation categories of injury within the meaning at 50). of Insurance Law ~ 51 02( d) (Kearse, supra The plaintiff is now required to come forward with viable , valid objective evidence to verify his complaints of pain and limitations of motion with respect to those three categories of injury (Farozes v. Kamran 22 A. D.3d 458 , 802 N. S.2d 706 (2d Dept. 2005)). As to plaintiff s 90/180 claim , the Court notes that a plaintiff must set forth competent medical evidence to establish that he sustained a medically determined injury or impairment substantially all of the of a nonpermanent nature material acts which constituted his usual and customary daily activities for 90 of the 180 days 2d 482 (2d 60 A. D.3d 1006 , 876 N. following the subject Dept. , 2009)). , which prevented him from performing collsion (Lyv. Holloway, Aside from his own affidavit attesting to a six-month period of restricted daily activities following the accid ent , plaintiff only missed one week of work immediately following the accident , and he has not provided any medical determination restricting him from performing heavy lifting, or playing soccer. Plaintiff has also not provided any evidence whatsoever recommending that he remain confined to his home for any period of time immediately following the accident. Plaintiff also offers the affidavit of Michael S. Roth , D. C. and the MR reports affirmed by Mark Shapiro, M. D. 2 Dr. Roth merely states that it is his opinion that the injuries sustained by plaintiff would inhibit the patient' s abilty to car out normal activities of daily living such as sitting, standing, bending, lifting and other strenuous activities " but not that plaintiff should refrain from specific activities. Thus , plaintiffs opposition is insufficient to raise an issue of fact sufficient to defeat defendant's summary judgment motion with respect to the 90/180 category of injury. The Cour wil consider all reports on plaintiff s motion which were listed as being relied upon by defendant' s expert 2008); Barry v. Valerio, (see Williams v. Clark 54 A. D.3d 942 , 864 N. Y.S.2d 493 (2d Dept. 72 A. 3d 996 , 902 N. Y.S.2d 97 (2d Dept. , 2010)). [* 5] Dr. Roth examined plaintiff on September 8 , 2008 , four days after the subject accident , finding restricted range of motion in plaintiffs lumbar spine. Dr. Roth set forth his findings , comparing plaintiff s range of motion measurements to normal range of motion measurements. Following the initial examination , Dr. Roth treated plaintiff from September , 2008 through March 4 , 2009 , and he directed plaintiff to undergo an MR of his lumbar spine on December 10 2008. Dr. Roth states that plaintiff ceased treatment in March 2009 because insurance no- fault benefits ceased , and because plaintiffhad received the maximum chiropractic improvement for what Dr. Roth characterized as a chronic condition resulting from the subject accident. Dr. Roth again examined plaintiff on August 4 , 2011. Based on the lumbar range of motion study and other tests performed on plaintiff, Dr. Roth found restricted lumbar range of motion nearly three years post-accident. Based on his examinations and treatment of plaintiff, as well as upon the results of the lumbar spine MR revealing herniated discs , Dr. Roth concluded that the injuries sustained by plaintiff are causally related to the subject accident and are permanent , inhibiting plaintiffs abilty to car out his normal daily activities and causing him pain. Dr. Roth also concluded that the injuries are "not resolution without surgery. subject to Based on the foregoing, the Court finds that plaintiff has raised an issue of fact sufficient to defeat defendant' s summary judgment motion with respect to the permanent consequential limitation and significant limitation categories of injury relative to his lumbar spine. Furthermore , plaintiffhas provided a reasonable explanation of cessation oftreatment 2d 380 (2005)). 4 N. Y.3d 566 , 574 , 830 N. 2d 278, 797 N. (see Pommels v. Perez, Accordingly, plaintiffhas met his burden with respect to the permanent consequential limitation and significant limitation categories ofinjury, but not with respect to the 90/180 category of injur. Defendants ' summar judgment motion is granted as to the 90/180 category ofinjury, and that claim is dismissed. Defendant' s summary judgment motion with respect to the permanent consequential limitation and significant limitation categories of injury is denied. The foregoing constitutes the Order of this Court. Dated: November 30 , 2011 Mineola, N. ENTERED DEC 05 2011 NASSAU COUNTY COU CLI.RK" O" ICE

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