Smith v Taylor

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Smith v Taylor 2012 NY Slip Op 30435(U) February 1, 2012 Supreme Court, Nassau County Docket Number: 23187/09 Judge: Michele M. Woodard 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU TANICKA SMITH , Individually and a Mother and Natural Guardian ofMELLIK ERKARD , an Infant, Plaintiffs -against- DOROTHY TAYLOR, RICHARD WILLIAMSON and CRAIG GOODMAN Defendants. MICHELE M. WOODARD TRIAL/IAS Par 8 Index No. : 23187/09 Motion Seq. Nos. : 04 & 05 DECISION AND ORDER Papers Read on these Motions: Plaintiffs ' Notice of Motion Plaintiffs ' Affrmation in Opposition Defendant Craig Goodman s Reply Defendants Dorothy Taylor and Richard Wiliamson s Notice of Motion Plaintiffs ' Affirmation in Opposition Defendants Dorothy Taylor and Richard Wiliamson s Reply By motion sequence numbers four and five respectively, the defendants move for an order 3212 for summar judgment dismissing the complaint and all cross claims asserted pursuant to CPLR against them , predicated on the grounds that the infant- plaintiff failed to sustain a serious injur as 51 06( d). required by Insurance Law This action arises from a motor vehicle accident which occured on September 12 2008 at the intersection of Broadway and Park Avenue , Huntington , New York , in which the infant-plaintiff Mellk Erkhard , then a third grader , was injured while riding as a passenger in a 1990 Le)(us automobile driven by co- defendant Richard Wiliamson. Mellick' s alleged injuries include: broad bulging disc at L5- S 1 ; neck pain; persistent low back pain; and abnormal nerve involvement [* 2] as a result of which plaintiffs allege Mellk was "totally incapacitated and unable to paricipate physical education from September 12 2008 up to and including Januar Pariculars). They also in 2009. " (Plaintiffs Bil allege Mellk was partially incapacitated and confned to his bed intermittently from the day ofthe accident until Februar 11 2010. Predicated on the contention that plaintiffs injures do not satisfy the serious injur statutory threshold set forth in Insurance Law ~ 51 02( d), defendant Craig Goodman , and defendants Dorothy Taylor and Richard Wiliamson , have separately moved for summar judgment dismissing the prima facie complaint. In so moving, defendants have the initial burden of establishing Torchiano 57 AD3d 872 (2d Dept 2008). In support of dismissal Rizzo judgment as a matter oflaw. entitlement to defendants ' e)(pert must specify the objective tests on which his opinion is based , and with respect to an opinion regarding range of motion , the e)(pert must quantify his findings and compare them with normal results. Samuel 44 AD3d 698 699 (2d Dept 2007). Coburn A movant's failure to satisfy his burden on a summar judgment motion requires denial of the motion regardless of the suffciency of the opposing papers. Hughes Dept 2007); Staubitz Yaser 41 AD3d 698 , 700 (2d Cai 31 AD3d 385 (2d Dept 2006). It is only if defendants successfully make the necessar showing that the burden shifts to plaintiff to proffer competent medical evidence , based on objective medical findings and diagnostic tests, to support the serious injury claim or to show, by the submission of objective proof of the nature and degree of the injury, the existence of questions of fact vis a vis whether the purorted injur 220 221 (1 Dept 2006); Garcia falls within the ambit ofthe statute. Flores Leslie 27 AD3d Morgan 305 AD2d 634 (2d Dept 2003). Conclusions , even of an examining doctor , which are unsupported by acceptable objective proof, are insufficient to defeat a [* 3] sumar judgment motion on the threshold issue of whether plaintiff has suffered a serious physical injur. Riportella 241 AD2d 443 , 444 (2d Dept 1997). Mobley To substantiate a claim under the category of either permanent consequential limitation of use of a body organ or member , or significant limitation of use of a body fuction or system , as alleged here the medical evidence submitted by plaintiff must contain objective , qualitative evidence with respect to a percentage loss of range of motion , or a qualitative assessment , comparing plaintiffs present limitations to the normal function , purpose and use of the affec:ted body, organ, member , function or system. Ross Deleon Green 304 AD2d 509 510 (2d Dept Alvarez 44 AD3d 545 pst Dept 2007); 2003). The claimed limitation must be more than mild , minor or slight. Ellott 57 NY2d 230 Moulton 16 AD3d 933 935 (3d Dept 2005). Palmer 236 (1982); Licari Whether a limitation of use or fuction is significant or consequential relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injur based on the normal fuction , purpose , use of a body par. Dufel Green 84 NY2d 795, 798 (1995). A recent medical e)(amination is required to sustain a claim of permanent loss of use of a body organ Berkowitz member , function or system; and/or significant limitation of use of a body organ or member. Taylor 47 AD3d 740 , 741 (2d Dept 2008). Subjective complaints of pain alone prima facie establish a Lopez case of serious injury. are insuffcient to 251 AD2d 382 (2d Dept 1998). The Zangrilo, mere e)(istence of a herniated or bulging disc , even radiculopathy, is not evidence of a serious injur in the absence of objective evidence of the e)(tent and duration of the alleged physical limitations resulting from the injur. Corp. Sharma 45 AD3d 656 (2d Dept 2007); Diaz 48 AD3d 442 Tobias 443 (2d Dept 2008); Chupenko, Patterson Y. Alarm Response 41 AD3d 583 584 (2d Dept 2007). In support of his motion for summar judgment dismissing the complaint , defendant Craig [* 4] Goodman relies on the affirmed report of orthopedist Alan 1. Zimmerman , M. , who conducted an orthopedic evaluation of the infant-plaintiff on May 11 2011 and opines that Mellk "has no injury to his lower back as a result ofthe accident of September 12. 2008 other than a minor sprain. " He fuher states that "there is no evidence of nerve involvement" and notes that Mellk was involved in a subsequent motor vehicle accident on September 2 , 2010 wherein he injured his neck , back and one of his knees. Plaintiffs make no reference to either a prior or subsequent accident. Dr. Zimmerman measured and quantified full ranges of motion in Mellk' s cervical and lumbar spines and delineates the specific tests performed , i.e. , Soto- Hall and Lasegue Sign - both of which yielded negative results. He found no disabilty and no permanency. He commented that Mellk , who was then attending school , might continue to do so without restriction. There was no treatment medically necessar from an orthopedic perspective. Defendant Craig Goodman has also submitted the affirmed statement of Steven L. Mendelson D. who reviewed the MRI fims of the Februar 12 infant- plaintiffs lumbar spine taken on October 15, 2008 and 2009 which he found revealed normal results with no evidence of diffuse bulging or focal disc herniation and no evidence of stenosis. Inasmuch as the affirmed medical reports of Drs. Zimmerman and Mendelson , submitted by defendant Craig Goodman , establish that the infant- plaintiff did not sustain serious injur ambit ofInsurance Law ~ 5102(d) (Toure within the Avis Rent A Car Systems 98 NY2d 345 , (2002)), it became incumbent upon plaintiffs to offer admissible proof suffcient to raise a factual issue with respect to the e)(istence of a serious injury. [* 5] Plaintiffs evidentiary submissions in opposition to defendant Craig Goodman' deficient in that they fail to support the infant-plaintiffs claim of serious injur and l showing are fails to connect his alleged injuries to the subject accident. The affirmed narative report of James M. Liquori , M. , who e)(amined the infant- plaintiff on September 14 , 2009; the MRI report of the infant- plaintiff s lumbar. spine; sensory nerve conduction report dated October 23 , 2008; and the narative report of Mellk' chiropractor all lack probative value in the absence of a recent e)(amination. 50 AD3d 1085 , 1086 (2d Dept 2008); Cornelius Cintas Corp. Goldstar Limo Corp. 46 AD3d 631 , 632 (2d Dept Larkin 2007). Significantly, the record is devoid of any evidence as to when the infant-plaintiff was last e)(amined/treated; and/or where , by whom and for how long he was treated. To the e)(tent that plaintiffs allege a permanent serious injury, and a significant limitation of use Perl they are required to submit objective medical evidence based upon a recent e)(amination. Meher 18 NY3d 208 (2011). They have failed to meet this burden and have failed to raise a triable factual issue sufficient to defeat summar judgment. Mirshah 41 AD3d 748 (2d Dept 2007). Ali While the requirement of a recent physical e)(amination does not apply where plaintiff does not allege a permanent or significant injur alleges , instead (both of a medically determined injur which have an e)(tended durational component) but Or impairment of a non- permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person s usual and customar daily activities for not less than 90 days during the 180 days immediately following the occurence of the injur or impairment" (Insurance Law ~ 5102(d)), here plaintiffs ' claim under the 90/180 days category is deficient in the absence of a medical determination as to the e)(tent of Defendants Dorothy Taylor and Richard Willamson have adopted the arguments/e)(hibits submitted by defendant Craig Goodman. [* 6] the injur sustained and its impact on the injured par' s abilty to perform his usual customar activities for the statutory period. According to Mellik' s own deposition testimony, he did not know how long he was confined to home or bed after the accident but , in any event , it was Both he and his mother, Tamika de minimis. Smith , testified that he did not miss any time from school after the accident. They could not recall for how long a period of time Mellk was not allowed to paricipate in gym class. Although Mellk alleges he was not able to paricipate in gym class (or play football or basketball), this is insufficient to show that he was unable to perform substantially all of the material acts that constituted his usual and customar activities as a third grader. 266 267 (l51 Dept 2008); Douglas 57 AD3d Ayala McCabe 17 AD3d 1111 (4 Dept 2005). Even Mellk' s and his Burns mother s subjective descriptions of his injuries do not establish that for 90 of the 180 days following his injur he was unable to perform " substantially all" of his usual activities. The medical evidence provided by plaintiffs fails to indicate that any restrictions were , in fact , placed on Mellk' s daily activities for the required statutory period. As such, the defendants ' motions are ORDERED , that the plaintiffs complaint is dismissed granted. It is hereby in its entirety. This constitutes the Decision and Order of the Court. DATED: Februar 1 2012 Mineola , N. Y. 11501 ENTER: ON. MICHELE M. WOODARD F:\DECISION - SERIOUS INJURY\mith v Taylor #4 & 5 CAK. wpd NTIEReD FI=8 1 4 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE

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