Oliveto v Schifano
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Oliveto v Schifano 2012 NY Slip Op 30541(U) February 17, 2012 Supreme Court, Suffolk County Docket Number: 09-19399 Judge: Peter H. Mayer 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 Sl']IWT H1KM ORDFK 09-19399 SUPREME COURT - STATE OF NEW YORK [AS. PART 17 - SUFFOLK COUNTY PRESENT: Hon. PETER H. MAYER Justice of the Supreme Coun MOTION DATE 6-14- 1 I ADJ. DATE [0-1[-[1 Mol. Seq. # 001- MG # 002 - XMG; CASEDISP ---------------------------------------------------------------X ANTHONY OLIVETO, ROSSILLO & LICATA, P C Attorney for Plaintiff Plaintift~ 355 Post Avenue, Suite 204 Westbury, New York 115490 - against SCHONDEBARE & KORCZ Attorney for Defendant Schifano 3555 Veterans Memorial Highway Ronkonkoma, New York 11779 LENA SCHIFANO CLEMENS, JR., and ROBERT H. DAVID J SOBEL, P.C. Defendants. Attorney for Defendant Clemens 811 West Jericho Turnpike, Suite 201W Smithtown, New York 11787 ---------------------------------------------------------------X Upon the redding and filing of the following papers in this matter: (1) Notice of MotioniOrder to Show Cause by the defendant Robert H. Clemens, Jr. , dated May 17,20] 1, and suppOlting papers (inclliding Memorandum of Law dated ~); (2) Notice of Cross Motion by the defendant Lena Schifano. dated May 25, 20 11, supporting papers; (3) Affirmation in Opposition by the plaintiff, dated October 3, 2011, and SUppoliing papers; (4) Reply Affinnatioll by the defendant Robcl1 H.Clemens, Jr., dated Octobcr 7, 2011, and supporting pdpers; (5) Reply A ffinnation by the defendant Lena Schifano, dated October I I, 201 1, and supporting papers; (6) Other _ (mtd-ttfttl hem ill;:, eOLt1l3els' o"tllhgulllelll.~ in .lttppO! I of 2tlid oppo3ed to tl Ie liiotiOIi); and now UPON DUE DELIBEHAT[ON AND CONSIDERATION BY THE COURT of the toregoing papers, the motion is decided as follows. it is ORDERED that the motion by defendant Robert Clemens, Jr. seeking summary Judgment dismissing plaintiWs complaint is granted; and it is further ORDERED the cross motion by defendant Lena Schifano seeking summary judgment dismissing the complaint is granted. [* 2] Oliveto v Schifano Index No. 09-19399 Page No.2 Plall1til'fAnthony Oliveto commenced this aellOn to recover damages fOf inJuries hi.:allegedly sustained as a result ora motor vehicle accident that occurred at the intersection of Nicolls Road and Carll's Straight Path in the Town of Babylon on October 26, 2007. It is alleged that the vehicle operated by plaintiff. which was traveling west on Nicolls Road. was struck 111he /i·ont passenger side by the t vehicle operated by defendant Lena SchiJ~mo.which was traveling north on Carll"s Straight Path. After the impact between plaintiffs vehicle and Schihmo's vehicle, plaintiffs vehicle spun around and was struck in the rear by a vehicle operated by defendant Robert Clemens, Jr., which was travcling south on Carll's Straight Path. Plaintiff. by his bill of particulars, alleges, among other things, that he sustained various personal injuries in the subject collision, including disc herniations at levels '1'7 through T 11, disc bulges at level L5-S 1, and lumbar radiculapathy Plaintiff alleges that he was confined to his bed for approximately one week and to his home for approximately one month following the subject accident. Plaintiff further alleges that he was unable to resume his position on the Deer Park High School track team as a result of the injuries he sustained in the accident. Defendant Clemens now moves for summary judgment on the basis that the injuries plaintiff alleges to have sustained as a result of the subject accident fail to meet the "serious injury" threshold requirement of the Insurance Law_ In suppOli of the motion, defendant Clemens submits copies of the pleadings, plaintiff's deposition transcript, unsworn copies of plaintiffs medical records, and the sworn medical reports of Richard Lechtenberg, M.D., and Isaac Cohen, M.D. At defendant Clemens's request, Dr. Lechtenberg conducted an independent neurological examination of plaintiff and Dr. Cohen conducted an independent orthopedic examination of plaintiff in February 2011. Detcndant Schi bmo cross-moves for summary judgment on the basis that plaintiff's injuries failed to meet the serious injury threshold requirement of Insurance Law § 5102( d). Defendant Schifano relies on the same evidence as presented in defendant Clemens's motion for summary judgment. It has long been established that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dlllel v Green, 84 NY2d 795, 798, 622 NYS2d 900 [19951; see TOllre v Avis Rent A Car Sys., 98 NY2d 345, 746 NYS2d 865 P002J). Therefore, the determination ofwhcther or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 [1982]; Porcuuo v Lehman, 255 AD2d 430, 680 NYS2d 590 I2d Ocpt 1988.1;Nolall v Ford, 100 AD2d 579, 473 NYS2d 51(, [19841, aiI'd 64 NYS2d 681,485 NYS2d 526 [2d Dcpt 1984]). Insurance La\-v§ 5102 (d) defines a ;'serious injury" as ;'a personal injury whieh 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 use of a body function or system; or a medically determined Il1Juryor impairment of a non-permanent nature which prevents the injured person ti'om performing substantially all of the material acts which constitute such person's usual and customary daily activities j()f not less than ninety days during the one hundred eighty days immediately following the occurrence oCthe injury or Impairment." A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is harred under the No-Fault Insurance Law bears the initial burden ofestablish1l1g a prima t~lCle case that [* 3] Oliveto v Schifano Index No. 09-19399 Page No.3 the plainlifCdid not sustain a "serious injury" (s('e TOllre~' Avis Rent A Car S:~'s. supm; Gaddy I! EJller, . 79 NY2d 955. 582 NYS2d 990 [1992]). When a defendant seeking summary Judgment based on the lack oCserious mjury relies on the findings of the defendant's own witnesses, ··those findings must he 111 admissible form, (such as], allidavits and affirmations, and not uns\vorn reports·' to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 AD2d 268, 270, 587 NYS2d 692 [2d Oert 1992]). A defendanlmay also establish entitlement to summary judgment usmg the plamtilfs depositIOn testimony and medical reports and records prepared by the plaintifTs own physicians (see Fmgale II Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Oept 2001]; Grossman v Wright. 268 AD2d 79, 707 NYS2d 233 [2d Oept 2000]; Vignola v Varrichio, 243 AD2d 464, 662 NYS2d 831 [2d Dept 1997]; Torres v Micheletti, 208 AD2d 519,616 NYS2d 1006 [2d Dept 1994]), Once a defendant has met this burden, the plaintifT must then submit objective and admissible proof of the nature and degree of the alleged il~ury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dl~fel v Green, supra; Tornabene v Pawlewski, 305 AD2d 1025, 758 NYS2d 593]4th Dept 20(3); Pagano v Kingsbury, supra). Here, defendants Clemens and Schifano have established their prima facie entitlement to judgment as a matter of law that plainti tTdid not sustain a serious iI~jury within the meaning of the Insurance Law (see TOllre l! A vi,)Rent A Car 51's., supra; Singh v City of New York, 71 AD3d 1121, 898 NYS2d 218 [2d Dept 2010]). Defendants examining neurologist, Dr. Lechtenberg, states in his medical report that an examination of plaintiff reveals that he has full range of mati on in his thoracolumbosacral spine, that the alleged injuries he sustained to his thoracic and lumbar spine have resolved, and that he currently has no objective, clinical, neurological deficits. Dr. Lechtenberg opines that plaintiff is not disabled and is capable of performing his normal daily living activities, and that there arc no pre~existing conditions that would affect plaintiff's recovery. Similarly, Dr. Cohen in his medical rep011states that plaintiff has full range of motion in his thoraco!umbosacral spine, that the straight leg raising test is negative, and that there are no sensory deticits in his sp111e. Dr- Cohen's report concludes that the low back strain that plaintiff sustained as a result of the accident has resolved, and that he has a completely functional capacity of the musculoskeletal system without any evidence of sequelae or permanency related to the subject accident. Therefore, the burden shifted to plaintiff to come f(lr\varu with competent admissible medIcal evidence based on objective tindings, sufJicient to raise a triable issue of fact that he sustallled a serious injury (vee G(I£Ic~vv l:)/er, supra). A plaintiff claiming a significant limitation of use of a body fUllction or system must substantiate his or her complaints with objective medical evidence showing the extent or degree orthe limitation caused by the injury and its duration (see Ferraro v Ridge Car Se/"l!.,49 AD3d 498, 854 NYS2d 408 [2d Dept 2008]; Mejia v DeRose, 35 AD3d 407, 825 NYS2d 772 [2d Dert 2006J; Laruffa v Yui Millg Lall, 32 AD3d 996, 821 NYS2d 642 [2d Dept 2006]; J(earse v New York City Tr. Aut"., 16 AD3d 45, 789 NYS2d 281 [2d Ocpt 20051). Whether a limitation of use or function is ;sigl1lficant' or 'consequential' (i.e. important ... ), relates to medical signilicance and involves a comparative determination ofthc degree or qualitativc nature of an injury based on the normal function, purpose and use of the body part" (Dl~fell! Green, supra at 798). To prove the extent or degree of physical limitation with respect to the ·'limitations of use" categories, either objective evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration based on a recent examination of the plaintiff must be provided or there must be a sufficient description of the "qualitative nature" of plaintiffs limitations, with [* 4] Olivet' v Schifano Index Vo. 09-19399 Page i'O. 4 an objc:tive basis. correlating plaintiffs limitations to the normal function. purpose and use of the body part (.'ire Perl v Meher. 18 NY3d 208. _ NYS2d _l2011]; Toure l' Avis Rent A Car Systems. Inc.. supra aI 3S0:see also Valera 1'Singh. 89 AD3d 929. 923 NYS2d 530 [2d Depr 20111:Rovelo v Vole)'. 83 AD3d 1034. 'l21 NYS2d 322 [1d Dept 20 I ID A minor. mild or slight limitation of LIseis considered insigllilicam within the meaning orthe statute (see Licari v Elliott. supra). Howevcr, evidence of contcnporaneous range ormation limitations is not a prerequisite to recovery (see PerII' Melter. supra: PauliH(I v Rodriguez, _ A03d _, 2012 NY Slip Op 00467 [1st Oept 20 12l). Plaintiff opposes the motion on the grounds that deICndants failed to meet their prima facie burdenand that he sustained injuries within the limitations oruse categories of the Insurance Law as a result (f the subject accident. In opposition to the motions, plaintiff submits his own deposition transcript and his unsworn medical records. In opposition to defendants' prima facie showing, plaintiff has failed to raise a triable issue of fact as iO whether he sustained a serious injury within the meaning ofInsurance Law § 5102(d) (see G{l(ldyv EJller, supra; LiCtlri v Elliott, supra; Barry l' Future Cab Corp., 71 AD3d 710,896 NYS2d 423 f2<iDcpt 2010]). Although, a plaintiff may rely upon unsworn MRI reports if they have been referred to by a defendant's examining expert (see Caulkills v VicillallZo, 71 AD3d 1224,895 NYS2d 600 [3d [lcpt 2010]; Ayzell v Melelldez, 299 A02d 381, 749 NYS2d 445[2d Ocpt 2002]), plaintiff has proffend insufficient medical evidence to demonstrate that he sustained an injury within thc "limitations ofusc"categories (see Licari v Elliott, supra; AU v Kha", 50 t\D3d 454,857 NYS2d 71 [I st Dept 2008]). Here, the medical reports submitted by plaintiff arc without probative value, since they are L1natlifRlcdand, therefore, not in admissible form (see Grasso v Augerami, 79 NY2d 813, 580 NYS2d 178 [19911; Selleker v 8r()lvII, _ AD3d _; 2012 NY Slip Op 00355 [2d [lcpt 2012]; KorpiI/O" v Cora, 89 ADJd 994, 933 NYS2d 383 [2d Dcpt 2011]). Tnany event, the medical report 01" Dr. William McCormick, which plaintiff relics upon in opposition, revcals that a physical examination of plaintiff shows he has no active spasm in his spine, that the straight leg raising test is negative, and that the intermiltent pain in his thorucolumbosacral spine is primarily myofascial in nature. Evidence of complaints of pain and discol1lCortalone, unsupported by credible medical evidence that diagnoses and identifies the injuries, is insuHicient to sustain a finding of serious injury (see Scheer v Koubeli, 70 NY2d 678,518 NYS2d 788 [1987]; YOlmg v Rus"elf, 19 A[l3d 688, 798 NYS2d 101 [2d Dept 20051). Moreover.. the medical reports of Dr. Robert Dra7.ic and Dr. Melissa Sapan merely establishes that plaintiff sustained sprains to his thoracolumbar spine. and disc bulges and hernialions. 'The mere existence of a herniated or bulging disc is not evidence of a serious injury in the abscnce of objective evidence of the extent of the alleged physicallimitarions resulting from the disc injury and its duration" (Stevells v SampsoJl, 72 AD3d 793, 794, 898 NYS2d 657[2d Oept 2010]; see CatalaJlo v Kopmmm. 73 AD3d %3, 900 NYS2d 759 12d [lep' 201 OJ; ClIrahelfo v Kim, 63 AD3d 976, 882 NYS2d 211 [2d Dept 2009J: Kilakos v Mascera, 53 AD3d 527, 862 NYS2d 529 f2d Dep120081; Wright v Rodriguez, 49 AD3d 532, 855 NYS2d 147[2d Ocpt 2008]). Sprains and strains also are not serious illJUries within the meaning of Insurance I.aw § 5102(d) (see Raholt v Park, 50 AD3d 995, 858 NYS2d 995 [2d Dept 2008l: Byam)' Wa/tllch, 50 AD3d 939, 857 NYS2d 605 [2d Oept 2008]; Washingtoft v Cross. 48 AD3d 457, 849 NYS2d 784 r2d Ocpt 2008]). [* 5] Oliveto v SchIfano Index No. 09-19399 Page No.5 Lastly. plaintiff tailed to submit any competen! medical evidence demonstrating that the injuries he allegedly sustained in the subject accident rendered him unable to perform substantially all of his daily living activities for nOt less !han 90 days orthe first 180 days subsequent to the accident (see Va{em v Singh, supra; Bamlllldo v Fiero, 88 A03d 831,931 NYS2d 239 [2d Dept 2011]; McLoud v Reyes. 82 AD3d 848. 919 NYS2d 32 [2d OCPl 20111). Accordingly the motion and cross motion seeking to dismiss the complaint are granted. Dated: ~YM,~ PE J ER II. MA YER.J.S.C.
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