Celentano v McIntyre
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Celentano v McIntyre 2012 NY Slip Op 30206(U) January 17, 2012 Supreme Court, Nassau County Docket Number: 17215/09 Judge: Jeffrey S. Brown 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 OF THE STATE OF NEW YORK COUNTY OF NASSAU PRE S E NT: HON. JEFFREY S. BROWN JUSTICE TRIAL/IAS PART 21 MICHAEL A. CELENTANO and NANCY G. CELENTANO, Plaintiffs, INDE)( # 17215/09 Motion Seq. 2 Motion Date 8.4. Submit Date 11. 10. -against- ERIK F. MCINTYRE, Defendant. The following papers were read on this motion: Papers Numbered Notice of Motion , Affidavits (Affrmations), Exhibits Annexed......................... Answering Affidavit............................................................................................. Reply Affidavit......................................... Motion by defendant , Erik F. McIntyre , for an Order , awarding him summar judgment dismissing the plaintiffs , Michael A. Celentano and Nancy G. Celentano s complaint on the grounds that Michael A. Celentano s injuries do not satisfy the " serious requirement of Insurance Law 951 injury " threshold 02( d), and as such , neither plaintiff has a cause of action , is GRANTED. This action arises out of a motor vehicle accident that occurred on May 8 , 2008 at approximately 12:00 p. m. at the intersection of Main Street and Grant Avenue in Farmingdale New York. [* 2] Plaintiff Michael A. Celentano claims that , as. a result of the rear end collsion to his , cervical vehicle , he sustained inter alia the following serious injuries: cervical sprain radiculopathy, disc herniations , lumbar sprain , lumbar radiculopathy, disc dessication sprain , left knee sprain/strain , and shoulder sprains/strains (Bil of Particulars , right knee 4). Plaintiff Nancy G. Celentano s claims are derivative in nature. Plaintiff claims that he was confined to his bed for four days and to his home for approximately one month following this accident (Id. at 7). At his oral examination before trial , plaintiff testified that although at the time of this accident , he was employed as a high school English teacher by the New York City Board of Education , he was on an approved leave of absence due to pre-existing issues relating to depression , and thus he makes no claim for loss of earnings; indeed, plaintiff alleges that he did not lose any time from work as a result of this accident (Id. 11). As to activities , plaintiff testified that as a result of this accident he can no longer sit for prolonged periods of time without experiencing pain. He testified that he has diffculties going up and down the stairs , standing, getting dressed , walking, bending, turning and squatting. He testified that he is no longer able to participate in his hobbies , including performing work on classic cars as he used to be able to do before this accident or go bowling. He stated that he has difficulty shoveling and clearing the snow as well as taking care of his children and performing household activities like vacuuming and carring groceries. Plaintiff, who was 38 years old at the time of the accident , has failed to identify the specific categories of the serious injury statute into which his injuries fall. Nevertheless , whether he can demonstrate the existence of a compensable serious injury depends upon the quality, [* 3] Warshaw Woolen Associates, Inc. v. (Manrique quantity and credibility of admissible evidence 297 AD2d 519 (1 st Dept. 2002)). Based upon a plain reading of the papers submitted herein , it is obvious that plaintiff is not claiming that his injuries fall within the first five categories of serious injury " to wit , death; dismemberment; significant disfigurement; a fracture; or loss of a fetus. Further , inasmuch as the plaintiff has failed to allege and claim that he has sustained a total loss of use " of a body organ , member , function or system, it is plain that his injuries do not satisfy the " permanent loss of use " category of Insurance Law 951 02( d) Ambulance, Inc., (Oberly v. Bangs 96 NY2d 295 (2001)). Similarly, any claims that plaintiffs injuries satisfy the 90/180 category of Insurance Law 9 51 02( d) is also contradicted by his own testimony wherein he states that he was only confined to his bed for four days and to his home for approximately one month a result of this accident. Further , plaintiff does not claim that as a result of his alleged injuries , he was " medically impaired from performing any of his daily activities (Monkv. Dupuis 287 AD2d 187 , 191 (3 Dept. 2001)), or that he was curtailed " to a great extent rather than some slight curtailment" (Licari v. Ellott 57NY2d 230 236 (1982); v. see also Sands Stark 299 AD2d 642 (3 Dept. 2002)). Indeed , according to his own sworn testimony, other than being unable to participate in his hobbies , including performing work on classic cars as he used to be able to do before this accident or go bowling, there is nothing that he cannot do. In light of these facts , this Court determines that plaintiff has effectively abandoned his 90/180 claim for purposes of defendant's initial burden of proof on a threshold motion Nassau 2007)). (Joseph v. Forman 16 Misc. 3d 743 (Sup. Ct. [* 4] Thus , this Court wil restrict its analysis to the remaining two categories as it pertains to the plaintiff, to wit , permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system. In support of a claim that the plaintiff has not sustained a. serious injury, defendants may rely either on the sworn statements of their examining physician or the unsworn reports of the plaintiffs (Pagano examining physician v. Kingsbury, 182 AD2d 268 (2nd Dept. When a defendants ' motion is suffcient to raise the issue of whether a " serious 1992)). injury " has been sustained , the burden shifts and it is then incumbent upon the plaintiff, in opposition to defendants ' motion , to produce serious injur v. (Licari prima facie evidence in admissible form to support the claim for Ellot supra). However , unlike the movant' s proof, unsworn reports of plaintiffs examining doctor or chiropractor are not suffcient to defeat a motion for summary judgment v. (Grasso Angerami 79 NY2d 813 (1991)). Otherwise , a medical affirmation or affidavit which is based on a physician s personal examination and observations of plaintiff, is an acceptable method to provide a doctor s opinion regarding the existence and extent of a plaintiffs serious injury Sullvan v. (see Reid Atrium Bus Co. v. citing 2003 WL 21087012 (Sup. Ct. Bronx 2003), 246 AD2d 418 (1 st Dept. 1998)). In any event , in order to be sufficient to establish a prima facie case of serious physical injury, the affirmation or affidavit must contain medical findings , which are based on the physician s own examinations , tests and observations and review of the record , rather than manifesting only the plaintiffs subjective complaints. Essentially, in order to satisfy the statutory serious injury threshold , the legislature requires objective proof of a plaintiffs injury. The Court of Appeals in Toure v. Avis Rent A Car [* 5] (98 NY2d 345 , 353 (2002)) stated that plaintiffs Systems must be supported by proof of injury objective medical evidence , such as MRI and CT scan tests. Unsworn MRI reports are not (Gonzalez competent evidence unless both sides rely on those reports (1 st Dept. doctor v. Vasquez 301 AD2d 438 2003)). However , even the MRI and CT scan tests and reports must be paired with the (Toure s observations during his physical examination of the plaintiff v. Avis Rent A Car Systems supra). On the other hand , even where there is ample objective proof of plaintiffs v. Pommels Court of Appeals held in Perez injury, the (4 NY3d 566 (2005)), that certain factors may override a plaintiffs objective medical proof oflimitations and nonetheless permit dismissal of plaintiffs complaint. Specifically, in Pommels the Court of Appeals held that additional contributing factors , such as gap in treatment , an intervening medical problem , or a preexisting condition , would interrpt the chain of causation between the accident and the claimed injury. The Court held that while " the law surely does not require a record for needless treatment in order to surive summar judgment , where there has been a gap in treatment or cessation of treatment , a plaintiff must offer some reasonable explanation for the gap in treatment or cessation of treatment" v. (Id; Neugebauer Gil 19 AD3d 567 (2 Dept. 2005)) Under the no- fault statute , to meet the threshold significant limitation of use of a body function or system or permanent consequential limitation , the law requires that the limitation be more than minor , mild , or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition (Licari v. Ellot supra; Gaddy v. Eyler 79 NY2d 955 (1992), Scheer v. Koubeck 70 NY2d 678 (1987)). A minor , mild or slight limitation shall be deemed " insignificant" within the meaning of [* 6] v. (Licari the statute Ellot supra; Grossman v. Wright 268 AD2d 79, 83 (2 When , as in this case , a claim is raised under the " body organ or member" or " Dept. 2000)). permanent consequential limitation of use of a significant limitation of use of a body function or system " categories , an expert' s designation of a then, in order to prove the extent or degree of the physical limitation (Toure numeric percentage ofplaintiffs v. Avis Rent A Car loss of range of motion is acceptable , an expert' s qualitative assessment of a Systems, Inc. supra). In addition plaintiffs condition is also probative , provided that: (1) the evaluation has an objective basis, and, (2) the evaluation compares the plaintiffs limitations to the normal function , purose and use of the affected body organ, member , function or system (ld). Perl Having said that , recently, the Court of Appeals in 08452 , held that a quantitative assessment of a v. plaintiffs injuries Meher 2011 NY Slip Op. does not have to be made during an initial examination and may instead be conducted much later (Perl litigation v. , in connection with Meher 2011 NY Slip Op. 08452 (2011)). With these guidelines in mind , this Court wil now turn to the merits of defendant' motion. In support of his motion , defendant relies principally upon the plaintiff s deposition testimony and the sworn report of Dr. S. Murthy Vishnubhakat , M. , a neurologist who performed an independent neurological examination of the plaintiff on May 19, 2011. With this evidence , defendant has established his prima facie entitlement to judgment as amatter of law. , performed quantified range of Specifically, Dr. Vishnubhakat , examined the plaintiff motion testing on his cervical and thoracolumbar spine with a goniometer , compared his findings [* 7] to normal range of motion values and concluded that the ranges of motion measured were , and normal. Dr. Vishnubhakat also performed motor and sensory testing and found no deficits based on his clinical findings and medical records review minor sprain and strain- like injury to the cervical . and , concluded that plaintiff sustained a lumbar spine , with no evidence of either (Staff v. Yshua , 59 cervical or lumbosacral radiculopathy nor any permanent or residual disability AD3d 614 (2nd Dept. 2009); Cantave Gelle 60 AD3d 988 (2 Dept. 2009)). showing that the injured plaintiff did not sustain a " prima facie Having made a v. serious injury" within the meaning of the statute , the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury " was sustained (Pommels v. Perez, supra; see also Grossman v. Wright supra). In opposition , counsel for plaintiff submits the affirmation of Dr. Mitchell Goldstein , an orthopedist who first examined the plaintiff on May 16 2008; the unsworn, unaffirmed MRI reports of plaintiff s cervical spine, lumbar spine, and right knee; and the unsworn reports of plaintiffs EMG and nerve conduction studies. Plaintiff s proof is wholly insuffcient to present a triable issue of fact herein. First , the unsworn, unaffrmed MRI reports as well as the unsworn report of plaintiff s EMG and nerve conduction studies do not constitute competent medical evidence in opposition to defendant's prima facie showing of entitlement to judgment as a matter of law. While the various radiologists at Orlin & Cohen Orthopedic Associates , LLP appear to have had the MRIs of plaintiffs cervical and lumbar spine and right knee taken under their supervision and although they also appear to be the physicians interpreting the MRl studies , they all fail to report an opinion as the causality of their respective findings. This is fatal to plaintiffs opposition (Collns [* 8] v. Stone 8 AD3d 321 (2 Dept. 2004); Betheil-Spitz v. Linares 276 AD2d 732 (2 Dept. 2000)). Similarly, the unsworn EMG and nerve conduction studies also fail to present a triable issue of fact. It is well settled that the plaintiff is precluded from relying upon his treating physicians unaffrmed medical reports and records to oppose the defendant' s motion 88 AD3d 851 (2 Casas Dept. 2011); Capriglione Montero 48 AD3d 728 (2nd v. Dept. (Kolodziej Rivera 83 AD3d 639 640 (2 2008); Iumsen v. v. Savarese Dept. 2011); Konopka 38 AD3d 608 (2 Dept 2007)). Further , said unsworn nerve conduction studies and EMG reports are not accompanied by a report of the physician , Dr. Datikshavli , who attests therein to an opinion as to the causality of his/her findings (lei. Finally, while at first blush the report of Dr. Mitchell Goldstein appears to constitute defendant' sprimafacie competent medical evidence in opposition to showing, a more complete reading of his report proves otherwise. First , Dr. Goldstein states that in arriving at his medical conclusions , he relied inter alia upon plaintiff s MRl films which , as stated above , were not tendered by the plaintiff in admissible form. Based on the review of this inadmissible evidence Dr. Goldstein diagnoses plaintiff with " cervicalgia, herniated cervical intervertebral disc at C3and C4- 5, herniated nucleus pulposus of the cervical spine at C3- 4 and C4-(sic), internal derangement of the knee joint , knee pain , herniated disc at Ll- , lumbago and lumbar sprain. " In light of the fact that Dr. Goldstein s conclusions were reached in reliance upon the unsworn and incompetent reports of others , the affirmation of plaintiff s treating physician is without probative value on the issue of whether the plaintiff suffered a serious injury Corp. 44 AD3d 821 (2 Dept. 2007); Besso v. Demaggio 56 AD3d 596 (2 (Govori v. Agate Dept. 2008)). [* 9] Moreover , although Dr. Goldstein sets forth his range of motion findings of the plaintiffs cervical and thoracolumbar spine and bilateral shoulders , he fails to set forth what objective testing was used to determine such measurements. Failure to indicate which objective test was performed to measure the loss of range of motion is contrary to the requirements of Rent a Car Systems the Court canot Toure v. Avis supra. It renders the expert' s opinion as to any purported loss meritless , and consider such opinion (see also Powell v. Alade 31 AD3d 523 (2 Dept. 2006)). Therefore , in the absence of any competent or admissible evidence supporting a c1aim. for serious injur, defendant' s motion seeking summary judgment dismissal of the plaintiffs complaint is herewith GRANTED (Licari v. Ellot supra), and the complaint is dismissed. The foregoing constitutes the decision and order of this Court. All applications not specifically addressed herein are denied. Dated: Mineola , New York Januar 17 2012 xxx Attorney for Plaintiff Levine & Slavit , Esq. 60 East 42 Street , Ste. 1614 New York , NY 10165- 0224 212- 687- 2777 ENTERED Attorney for Defendant Martyn Toher & Martyn , Esqs. 330 Old Country Road , Ste. 211 Mineola 11501 516- 739- 0000 , NY 2012 NASSAU COUNTY JAN 1 9 COUNTY CLER'K' OFFICE
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