Munoz v Paster-Torres

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Munoz v Paster-Torres 2012 NY Slip Op 30545(U) February 17, 2012 Supreme Court, Suffolk County Docket Number: 09-36284 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] fNDEX No. SHORT FORM ORDER CAL. No, 09-36284 11-01202MV SUPREME COURT - STATE OF NEW YORK LAS. PART 17 - SUFFOLK COUNTY PRES ENT: Hon. PETER H MAYER Justice of the Supreme Court MOTION DATE 10-27-11 MOTION DATE 11-17-11 ADJ.DATE II-3D-II Mot. Scq. # 002 - MD #003 -MD ---------------------------------------------------------------)( DIONA MUNOZ, RORfN LAlO and MELONY MUNOZ, a minor by her mother and legal guardian, DIONA MUNOZ, CANNON & ACOSTA, LLP Attorney for Plaintiffs 1923 New York Avenue Huntington Station, New York I] 746 Plaintiffs, RUSSO APOZNANSKJ & TAMBASCO Attorney for Defendants Paster-Torrez and Whalen 875 Merrick Avenue Westbury, New York 11590 - against - BRYAN PASTER-TORRES, BRIAN L. WHALEN and PEDRO MUNOZ, Defendants. MARTYN, TOHER & MARTYN Attorney ForDefendant Munoz 330 Old Country Road., Suite 211 Mineola, New York 11501 ---------------------------------------------------------------)( Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause (002) by the defendant Pedro Munoz, dated September 26,2011, and supporting papers l.:.ll; (2) Notice of Cross Motion (003) by the defendants Bryan Paster-Torres and Brian L. Whalen, dated October 27, 201 ], and supporting papers 12-16; (3) Affinnation in Opposition by the plaintiffs, dated November22, 20 II, and supporting papers 17-23; (4) Reply Affinnation by the defendants Bryan Paster-Torres and Brian L. Whalen, dated November 25,2011, and supporting papers 24-25: (5) Reply affinnation by defendant Pedro Munoz dated November 28, 2011, and supporting papers 26-27; (Iiild "fte, Ileal illg e<"Jllllje!s' 01Itllt. gtlli .wts ill suppo, t of Il:lldopposed to tlie IiIOlitlli); and now UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is ORDERED that motion (002) by the defendant Pedro Munoz pursuant to CPLR 3212 for an order granting summary judgment dismissing the complaint asserted on behalf of Rorin Lazo and Melony Munoz on the basis that they did not sustain "serious injuries" as defined by Insurance Law §5102(d) is denied; and it is further ORDERED that motion (003) by the defendants Bryan Paster-Torres and Brian L. Whalen pursuant to CPLR 3212 for an order dismissing the complaint asserted on behalf of Rorin Lazo and Melany Munoz on the basis that they did not sustain "serious injuries" as defmed by Insurance Law §5102(d) is denied. [* 2] M uno/:': Pash:r-lorres v Index No. 09-36284 Page NO.2 This is an uction sounding in negligence wherein the plaintiffs seek damuges for personalll1.1uncs they claim to have sustained as a result of a motor vehicle accident which occurred on March 28. 2009 on Maple Avenue. approximately 1000 feet north of its intersection with Route 111 lD SmithtO\vn, New York. The plamtilTs, Digna Munoz, Ronn Lazo and Melany Munoz \vere passengers in the vehicle operated by Pedro Munoz when it came into contact \.viththe vehicle operated by Bryan Paster-Torres and owned by Brian L. Whalen. The defendants seek summary judgment dismissing that part of the complaint asserted on behalf of Rorin Lazo and Melany Munoz on the basis that they did not sustain "serious injuries" as defined by Insurance Lmv §5102( d). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends ojAnimals v Associated Fur Mfrs., 46 NY2d 1065,416 NYS2d 790 [1979]; Sillman v Twentieth Century-Fox Film Corporatiolt, 3 NY2d 395,165 NYS2d 498 [1957]). The movant has the mitial burden of proving entitlement to summary judgment (Winegrad v N Y.U. 111edicalCenter, 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N. Y. U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ...and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proofin order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014,435 NYS2d 340 [2d Dept 1981]). Pursuant to Insurance Law § 5102( d), " '[sJerious inj ury' means 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 use of a body function or system; or a medical determined injury or impamnent of a non-permanent nature which prevents the injured person from performing substantially all o[the material acts which constitute such person's usual and customary daily activities far not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." The term "significant," as it appears in the statute, has been detined as "something more than a minor limitation of use," and the term "substantially all" has been construed to mean "that the person has been curtailed from per!{)fming his usual activities to a great extent rather than some slight curtailment (Licari v Elliot. 57 NY2d 230, 455 NYS2d 570 [1982]). On a motion for summary judgment to dismiss a complaint f()r failure to set forth a prima f~lciecase ofseriaus injury as defined by Insurance Law § 5102(d), the initial burden is on the defendant to "present evidence in competent form, showing that plaintif1' has no cause of action" (Rodriquez v Goldstein, 182 AD2d 396, 582 NYS2d 395, 396 tJ st Dept 1992]). Once the defendant has met the burden. the plaintifr mustlhen, by competent proof~ establish aprimafacie case that such serious injury exists (DeAngelo v [* 3] lvlunoz v Paster-Torres Index No. 09-36184 Page No.3 Fidel Corp. Services, Inc., 171 AD2d 588, 567 NYS2d 454, 455 11st DCpL 1991 D. Such proof. in order TO be in competent or admissible form, shall consist of uffidavits or aflinmnions (Pagano v Ki1lgsbury, 182 AD2d 268, 587 NYS2d 692 [2d Dept 1992]). The proof must be viewed in a light most favorable to thc non-moving party. here the plamtiff (Cammarere v Villanova, 166 AD2d 760, 562 NYS2d 808, 8] 0 [3d Dcp! 1990 I). In order to recover under the "permanent loss oruse" category, a plaintiffmusr demonstrate a total loss of use ora body organ, member, function or system (Ober(v v Bangs Ambulance /nc., 96 NY2d 295, 727 NYS2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories, either a specific percentuge of the loss ohange of motion must be ascribed or there must be a suflicient description of the "qualitative nature" of plaintiff's limitations, with an objective basis, correlating plaintiff's limitations to the normal function, purpose and usc of the body part (rOUTe v Avis Rent A Car Systems, Inc., 98 NY2d 345, 746 NYS2d 865 [2000]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari ".Elliott, supra). In support of motion (002), the defendant has submitted, inter alia, an attorney's afJinnation; copies ofthc pleadings and plaintiffs' verified bill of particulars; an unsigned and uncertitied copy of the transcript of the examination before trial of the plaintiff Rorin Lazo dated July 30, 2010; the unsigned but certified transcript of the examination before trial of Melany Munoz with proof of service upon plaintifl"s counsel pursuant to CP1,R 3116; and the sworn report ofIsaac Cohen, M.D. dated May 25, 2011 concerning his independent orthopedic examination of the plaintiff Rorin Lazo; the swam reports of David Fisher, M,D. concerning his independent radiology review of the cervical MRJ dated April 27, 2009, the lumbar MRI dated April 27, 2009, and the right shoulder MRI dated April 29, 2009 conducted on Rorin 1,azo; and the sworn report of Michael J. Katz, M.D. concerning his independent orthopedic examination of Melony Munoz dated February 15,2011 In support of motion (003), the defendants have submitted, inter alia, an attorney's affirmation; untabbed copies of the pleadings, answer and plaintiffs' verified bill ofpmticulars; an unsigned and uncert'ified copy of the transcript of the examination before trial of the plainti ff Rorin Lazo datcd July 30. 20 1O~the unsigned but certified transcript of the examination before trial of Melony Munoz \vith proof of service upon plaintiff's counsel pursuant to CPLR 3 116; and the sworn report ofIsaac Cohen, M.D. dated May 25, 20 II concerning his independent Olthopcdic examination of the plainti ITRorin Lazo; the sworn repOlts of David Fisher, M.D. concerning his independent radiology review orthc cervical MRI dated April 27,2009, the lumbar MRI dated April 27, 2009, and the right shoulder tv1RIdated April 29, 2009 conducted on Rorin Lazo; the report dated Apnl8, 2011 by Peter 1. Ajemian, M.D. concerning his orthopedic evaluation ofRorin Lazo; the sworn report of Michael J. Katz, M.D_ conccrn1l1g his independent orthopedic examination of Melony Munoz dated February 15, 2011; and various discovery demands and disclosure. The transcripts of thc examination before trial of Rorin I,azo submitted with motions (002) and (003), which are not signed, certified or accompanied with proof' of service pursuant to CPLR 3116 are not in admissible form pursuant to CPLR 3212, and are not considered in support of these applications (see. Martinez v 123-16 Uberty Ave. Realty Corp., 47 AD3d 901, 850 NYS2d 201 [2d Dcpt 2008]; McDonald v MaliS, 38 AU3d 727, 832 NYS2d 291 [2d Dcp! 2007]; Pilla v Flik Illti. Corp . ¢ 25 AD3d 772. 808 NYS2d [* 4] Munoz v Paster-Torres Index No. 09-36284 Page NO.4 751 [2d Dept 2006]). arc nol accompanied by an affidavit. The certified transcript ortvtelony Munoz. which has not been objected to by the plaintiff (see. Za/ot v Zieba, 81 AD3d 935. 917 NYS2d 285 f2d Dcp! 20 II]) is considered. Upon review of the foregoing. it is detemlined that the defendants have not established prima facie entitlement to summary judgment dismissing the complaints asset1ed on behalf of Rorin Lazo or Melony Munoz. Dr. Cohen stated that there \'v'ereno medical records available for his review. None of the expert physician's reports arc supported by copies of the medical records and/or reports upon which they base their separate opinions as required pursuant to Friends of Animals v Associated Ful' Min., supra. Expert lestimony is limited to facts in evidence. (see, a/so, AI/ell v Uh, 82 AD3d 1025. 919 N YS2d 179 [2d Dept 2011 J; Hornbrook v Peak Resorts, Inc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 2002J; Marzuil/o v Isom. 277 AD2d 362, 716 NYS2d 98 [2d Dept 2000]; Stringile v Rothman, 142 AD2d 637, 530 NYS2d 838 [2d Dept 19881; O'Shea v Sarro, 106 AD2d 435, 482 NYS2d 529 f2d Dep1 1984]). By way of the plaintiff.<.;· erified bill of particulars, il is claimed that as a result of this accident v Rorin Lazo sustained a disc herniation at IA-5 with deformity orthe epidural fat and lateral recess; disc bulge at L5~SI; disc bulge at C3-4 with flattening of the dural sac; disc bulge at C4-5 with flattening of the dural sac; disc bulge at C5-6 with flattening of the dural sac; straightening of the normal cervical lordosis; internal derangement of the right shoulder; impingement syndrome of the right shoulder; supraspinatus of the righl shoulder; and arthropathy of the right AC joint orthe right shoulder. Dr. Cohen set forth that Mr. Lazo was seen after the accident at St. Catherine of Sienna Hospital where he was treated and released after x-ray examinations of the lumbar spine and righl shoulder. lie does not comment on the findings demonstrated on those radiographic exams. He continues that Mr. Lazo denied any history of traumatic injury or past medical and surgical history. He notes that Mr. Lazo was out of work for approximately two months as a result of the injuries sustained in the accident. Upon ~xamination ofMr. Lazo's lumbosacral and cervical spine, and right shoulder, Dr. Cohen obtained range of motion measurements which were determined visually and with a goniometer. Dr. Cohen set forth the range of motion measurements he obtained and compared those range of motion findings wilh normal ranges of motion values set forth in a spectrum of normal values. 'When a normal reading for range of motion testing is provided in terms ofa spectrum or range ofnumbers rather than one definitive number, the actual extent of the limitation is unknown (see Saimwva/ v Sallic", 78 AD3d 922, 923, 911 NYS2d 429 t2d Dcpl 2010]; Lee v M & M Auto Coach, Ltd., supra; Hypolite v lntematiOllll/ Logistin Mallagement, IIlC., 43 AD3d 461,842 NYS2d 453 l2d Dept 2007]; SomerJj' v Macpherson, 40 AD3d 742, 836 NYS2d 620 f2d Dept 2007]; Browdaml! \I CalldllTa, 25 AD3d 747. 807 NYS2d 658 12d Ocpt 20061; Rodriguez v Schickler. 229 AD2d 326. 645 NYS2d 31 [1s1 Dep1 1996], Iv denied 89 NY2d 810. 656 NYS2d 738 l1997D. thus raising factual issues. Additionally. the nonnal range of motion values for the cervical and lumbar spine set forth by Dr. Cohen differ from those sel forth by Dr. Katz, raising further factual issues. Additionally, the report dated April 8, 2011 by Peter J. Ajemian. M.D. concerning his orthopedic evaluation of Rorin Lazo sets forth restrictions in range of motion findmgs upon evaluation of .Mr. Lazo' s right shoulder, lumbar spine, and cervical spine, raising inconsistent findings with those of Dr. Cohen concerning his orthopedic evaluation of Mr. Lazo. Also, Dr. Ajcmian has compared his cervical range of motion findings to a spectrum ofnonnal range of motion values. Thus, the report by Dr. Ajemian raises I'llclualissues which further preclude summary judgment. It is additionally noted that Dr Ajemian refers lo [* 5] Munoz v Paster-Torres Index No. 09-36284 Page No.5 the various !VIRlrepons and findings dcmonstrated on those reports, which findings ralse factual issue \vith Dr. Fisher's repoli. Dr. Ajemian notes that the cervical MRI demonstrates multilevel disc bulging with flattening orthc dural sac; arthropathy along the anlerior undersurface of the AC .joint consistent with bony . impingement and fluid in the subacromial space of the right shoulder, and tendinosis of the distal supraspinatus without tear; and disc herniation consisting of left-sided extension at LA-5 associated with downward extrusion into the left lateral recess, and bulging disc at L5-S 1 with right greater than left f~lCct arthropathy. Disc hermation and limited range of motion based on objective fi.ndings may constitute evidence of serious Injury (.Jaukowsky v Smith. 294 i\D2d 540, 742 NYS2d 876 [2d Dept 2002l). Dr. Fisher's reports raise factual Issues \vhich further preclude summary judgment from being granted. Dr. Fisher has set forth impressions of diffuse degenerative changes throughout the cervical spine, most pronounced from C2-3 through C5-6 with respect to Rarin Lazo's MRl studies of the cervical spine, but he does not set forth the basis for his opinion and has not provided a copy of the original report for this examination. Dr. Fisher has also set forth that there are degenerative changes at L4-5 demonstrated on Mr. Lazo's lumbar spine, but does not set forth the basis for such impression. He has not provided a copy of the original report concerning the MRI study. The original x-ray report ofMr. Lazo's right shoulder has not been provided either. Based upon the foregoing, the moving defendants have not demonstrated prima facie entitlement to summary judgment dismissll1g the complaint as asserted on behalf of Rorin Lazo on the basis that he did not sustain a serious injury. Melany Munoz claims that she sustained injuries consisting of straightening of the normal cervical lordosis; increased lumbar lordosis; lumbar scoliosis; lumbar radiculitis; cervical radiculitis; right knee derangement; cervical sprain, thoracic sprain, and lumbar sprain. The report by Dr. Michael Katz, submitted with regard to his examination of Melony !vlunoz, sets forth his findings based upon an orthopedic evaluation. Melany Munoz had pleaded that she sustained lumbar and cervical radiculitis, however, no repoli from a neurologist who examined the plall1tiff on behalf of the moving defendants has been submitted to rule out said neurological involvement or il~iury (see. Browdame v CllIu{ura, 25 i\D3d 747, 807 NYS2d 658 [2e1Dept 2006l). The absence of a report of a neurological examination of the plainti ff raises factual issue which precludes summary judgment on the issue of whether the plaintiff sustained a serious injury within the meaning of Insurance Law §5] 02 (d). Thus, the defendants have not established prima facie entitlement to summary judgment dismissmg that paI1 of the complaint asserted on behalf of Melany Munoz. Defendants' examining physicians did not examine the plaintiffs dunng the statutory period of 180 days following the accident, thus rendering defendant physician's aflidavit insufficient to demonstrate entitlement to summary judgment on the issue of whether either plaintiJTwas unable to substantially perform all of the materia! acts which constituted his usual and customary daily activities lor a period in excess of90 days during the 180 days immediately following the accident (Blanchard v Wilcox, 2XJ AD2d 821,725 NYS2d 433 [3rd Dcpt 2001 J; see, Uddin v Cooper, 32 ADJd 270, 820 NYS2d 44 I"J st Dept 2006]; Toussaint II Claudio, 23 AD3d 268, 803 NYS2d 564 [1st Oept 2005]), and the physicians do not comment on the same. [* 6] Munoz v Pnster-Torrcs Index No. 09-36284 Page NO.6 [t is noted that Melany T"v{unoz testified that she stlll has pain in her back and cannnt Sit for a long time. She gets sharp pains Ifshe 1S on her back. She renlly likes running, but her knee bothers her a lot when she runs. She had an MRI of her right knee, however. the report concerning the study has not been provIded to thIS court. These tactual issues raised III defendant's moving papers preclude summary judgment. The defendants failed to satisfy the burden of establishing, prima facie. that plaintiff did not sustain a "serious injury'· within the meaning oflnsurance Law 5102 (d) (I'ee,Agatlte v Tun Chen Wang, 98 NY2d 345, 746 NYS2d 865 [2006J); see also, Walters v PajJllllastas.'Iiou, 31 AD3d 439,819 NYS2d 48 [2d Oept 20061). Inasmuch as the moving parties have failed to establish their prima facie entitlement to judgment as a matter of law in the first instance on the issue of "serious injury" within the meaning ofInsurance Law § 5102 (d), it is llnnec~ssary to consider whether the opposing papers were sufficient to raise a triable issue of lact (see, Yong Deok Lee I' Singh, 56 AD3d 662, 867 NYS2d 339 [2d Dept 2008]).: Krayu I' Torella, 40 AD3d 588, 833 NYS2d 406 [2d Dept 2007]; Walker v ViI/age oj Ossining, 18 AD3d 867, 796 NYS2d 658 [2d Dept 2005]) as the burden has not shifted. Accordingly, motions (002) and (003) are denied. Dated :;f ~J:L

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