Vughan-Ware v Darcy

Annotate this Case

Download PDF

Vughan-Ware v Darcy 2012 NY Slip Op 30643(U) March 6, 2012 Sup Ct, Nassau County Docket Number: 24665/09 Judge: Denise L. Sher 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] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE 1. SHER Acting Supreme Cour Justice KATHLEEN V AUGHAN- WAR and RICHAR WARE, Plaintiffs, - against - TRI/IAS PART NASSAU COUNTY Index No. : 24665/09 Motion Seq. No. : 01 Motion Date: 09/21/11 DREW R. DARCY Defendant. Thefollowine: papers have been read on this motion: Papers Numbered Notice of Motion. Affirmation and Exhibits Affirmation in Opposition. Affidavit and Exhibits and Memorandum of Law Reply Affirmation Upon the foregoing papers, it is ordered that the motion is decided as follows: Defendant moves , pursuant to CPLR 93212 and Article 51 ofthe Insurance Law of the State of New York , for an order grantingstlar judgment to him on the ground that plaintiffs did not sustain a " serious injury" in the subject accident as defined by New York State Insurance Law 9 51 02( d). Plaintiffs oppose the motion. The above entitled action stems from personal injuries allegedly sustained by plaintiffs asa result of an automobile accident with defendant which occured on June 10, approximately 3:00 p. 2007, at , at the intersection of Merrick Road and East Shore Drive Massapequa, Nassau County, New York. The accident involved two vehicles, a 2005 Nissan owned and operated by plaintiff Kathleen Vaughan- Ware and a 1994 BMW owned and operated [* 2] by defendant. As a result of the collsion , plaintiff Kathleen V aughan- Ware claims that she sustained the following injuries: posterior hyperintense anular tear at L4- central disc herniations at L3- , L4- , and L5- S 1; disc bulge at L2- 3 resulting in canal narowing; internal derangement of the lumbar spine and severe strain/sprain of the lumbar spine. See Defendant' s Affrmation in Support ExhibitD Plaintiff Richard Ware s claims are derivative in nature. At her sworn Examination Before Trial (" EBT"), plaintiff KatWeen Vaughan- Ware testified that , following this accident, she was confined to her bed for two weeks and to her home for an additional four weeks. See Defendant' s Affrmation in Support Exhibit F pp. 75- 76. Plaintiff Kathleen Vaughan- Ware testified that she was unemployed at the time ofthe subject accident. As to activities , she stated that , as a result ofthis accident, she can no longer play volleyball , tend to her vegetable garden , cook, lift heavy objects , wash dishes or drive for longer than thirty minutes at a time. She did, however , testify that , in September201 0, following the subject accident, she joined a local gym where she uses the recumbent bicycle. Plaintiff Kathleen V aughan- Ware , who wal) forty-three years old at the time of the accident , has failed to identify the specific categories of the serious inj ury statute into which her injuries fall. Nevertheless, whether she can demonstrate the existence of a compensable serious injury depends upon the quality, quantity and credibilty ofthe admissible evidence. Manrique v. Warshaw Woolen Associates, Inc. 297 A.D.2d 519, 747 N. See 2d 451 (1st Dept. 2002). Based upon a plain reading of the papers submitted herein, it is obvious that plaintiffs are not claiming that plaintiff Kathleen Vaughan- Ware s injuries fall within the first five categories [* 3] of " serious injur: " to wit , death; dismemberment; significant disfigurement; a fracture or loss of a fetus. Furher, inasmuch as plaintiffs have failed to allege and claim that plaintiff Kathleen Vaughan- Ware has sustained a "total loss of use " ofa body organ, member , function or system it is plain that her injuries do not satisfy the "permanent loss of use " category ofInsurance Law. See New York State Insurance Law 9 5102(d); 295 , 727 N. 96 N. Y.2d Oberly v. Bangs Ambulance, Inc., 2d (2001). Similarly, any claims that plaintiff Kathleen Vaughan- Ware s injuries satisfy the 90/180 category of Insurance Law 9 51 02( d) are also contradicted by her own EBT testimony wherein she states that she was only confined to her bed for two weeks and to her home for a total of six weeks as a result of this accident. Furher , no where do plaintiffs claim that , as a result of plaintiff Kathleen V aughan- Ware s alleged injuries, she was "medically" impaired from performing any of her daily activities (Monkv. Dupuis 287 A.D.2d 187 , 734 N. S.2d 684 (3d Dept. 2001)) or that she was curailed " to a great extent rather than some slight curailment." See Licari v. Ellott, A.D.2d 642 , 749 N. 57 N. Y.2d 230 455 N. Y.S. 24 570 (1982). S.2d 334 (3d Dept. 2002). that plaintiffs have effectively abandoned their burden of proof on a threshold motion. In 90/180 See also Sands v. Stark 299 light of these facts , this Court determines claim for puroses of defendant's initial See Joseph v. Forman 16 Misc.3d 743 838 N. Y.S. 902 (Sup. Ct. Nassau County 2007). Thus , the Cour wil restrict its analysis to the remaining two categories as it pertains to plaintiff Kathleen V aughan- Ware; to wit, a permanent consequential limitation of use of a body organ or member (Category 7) and a significant limitation of use of a body function or system (Category 8). Under the no..fault statute, to meet the threshold significant limitation of use of a body [* 4] 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 injur See Licari v. Ellot , supra; Gaddy v. Eyler 79 N. Y.2d condition. Scheer v. Koubeck 70 N. Y.2d 678 518 N. 2d 990 (1992); S.2d 788 (1987). A minor, mild or slight limitation shall be deemed " insignificant" within the meaning of the statute. Grossman v. Wright 268 A. 955, 582 N. or 2d 79 , 707 N. Y.S. 2d See Licari v. Ellot , supra; 233 (2d Dept. 2000). When , as in this case , a claim is raised under the "permanent consequential limitation of use of a body organ or member " or " significant limitation of use of a body fuction or system categories , then, in order to prove the extent or degree of the physical limitation , an expert' designation of a numeric percentage of plaintiff s loss of range of motion is acceptable. See Toure v. Avis Rent-a- Car Systems 98 N. Y.2d 345; 746 N. Y.S. 2d 865 (2002). In addition , an expert' s qualitative assessment of a plaintiff s condition is also probative, provided that: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiffs the normal fuction, limitations to purose and use of the affected body organ, member, fuction or system. See id. That being said , recently the Cour of Appeals , in Perl v. Meher 18 N. Y.3d 208 936 Y.S.2d 655 (2011), held that a quantitative assessment of a plaintiff's injuries does not have to be made during an initial examination and may instead be conducted much later , in connection with litigation. See id. With these guidelines in mind, this Cour wil now tur to the merits of defendant' motion. In support of his motion , defendant relies upon plaintiff Kathleen Vaughan- Ware unsworn hospital records , the sworn report of Dr. Isaac Cohen , MD , F AAOS , an orthopedist who performed an independent orthopedic examination of plaintiff Kathleen V aughan- W are on Februar 16 , 2011 , the sworn report of Dr. Melissa Sapan Cohn, M. , a radiologist who [* 5] reviewedthe MRI scans of plaintiff Kathleen Vaughan- Ware s lumbosacral spine and the sworn , an orthopedic surgeon who performed an independent report of Dr. Fran D. Oliveto , M. orthopedic examination of the plaintiff Kathleen Vaughan- Ware on September 4, 2007. Initially, it is noted that , while the affrmed report of Dr. Oliveto constitutes admissible medical evidence, it is nonetheless insuffcient and incompetent. That is, Dr. Oliveto claims to have performed range of motion testing of plaintiff Kathleen Vaughan- Ware s lumbosacral spine. However, he clearly states, in pertinent par, that " range of motion is to 30% of normal , with subjective limited subjectively paralumbar spinal musculature discomfort with motion. See Defendant' s Affrmation in Support Exhibit 1. This is wholly insufficient. Not only does Dr. his Oliveto fail to set forth the objective medical testing he performed to support (see Vasquez (relying instead upon the subjective complaints of the patient) Basso 27 AD. Walters v. Papal1astassiou 31 AD. 3d 439 819 728 815 N. Y.S.2d 626 (2d Dept. 2006); Y.. v. conclusions 2d 48 (2d Dept. 2006)), but he also fails to quantify and compare the findings of his range See Abraham v. Bello, of motion testing to a normal range of motion. Y.S. 2d 118 (2d Dept. 2006); 29 A. DJd 497 816 Forlong v. Faulton 29 A.D. 3d 856, 814 N.Y. 2d 530 (2d Dept. 2006). This is clearly insufficient. Notably, the recent Cour of Appeals decision of defendant in saving the affrmed report of Dr. Oliveto. In the need to require both quantitative proof of a " serious evidence of a " serious injury. See id. Perl v. Meher , supra, does not help the Perl the Cour of Appeals reconciled injur " and " contemporaneous It stated, in pertinent par, as follows: (A) rule requiring " contemporaneous " numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failng to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery. Id. This does not save Dr. Oliveto s affrmed report , which consisted ofan independent ," [* 6] medical examination, performed at the defendant's request , in connection with litigation , on September 4 , 2007. Despite the incompetency of Dr. Oliveto s report , defendant has nonetheless established his prima facie entitlement to judgment as a matter of law. Specifically, the personally reviewed the affrmed report of Dr. Melissa Sapan Cohn , M.D. , who avers that she actual MRI films of plaintiff Kathleen Vaughan- Ware s lumbosacral (Dioguardi v. Weiner 288 AD. 2d 253 , 733 N. spine Console, 2d 116 (2d Dept. 2001); Beyel v. 25 AD.3d 636 811 N. Y.S. 2d 687 (2d Dept. 2006)) and who also reports an opinion as to the causality of her findings , to wit (t)hese (findings) are associated with underlying degenerative changes suggesting that they are chronic in nature " constitutes admissible evidence in support of the defendant' s motion. H. See also Collns v. Stone 8 A. 3d 321 , See Defendant's Affirmation in Support Exhibit 778 N. 2d 79 (2d Dept. 2004); Betheil-Spitz v. Linares 276 AD.2d 732 , 715 N. Y.S.2d 435 (2d Dept. 2000). Further , read together with the affirmed report of Dr. Isaac Cohen , who examined plaintiff Kathleen V aughan- Ware and performed quantified range of motion testing on her cervical and thoracolumbar spine with a goniometer, compared his findings to normal range of motion values and concluded that the ranges of motion measured were normal , defendant's medical evidence suffciently demonstrates that plaintiff Kathleen Vaughan- Ware did not sustain a " serious injury " as a result of this accident. See Defendant's Affirmation in Support Exhibit G. Dr. Cohen also notes that plaintiff Kathleen Vaughan- Ware has a significant pre- existing history of musculoskeletal pathology consistent with osteogenesis imperfecta, also know, as " brittle bone disease. See id. In addition , Dr. Cohen performed motor and sensory testing and found no deficits , and , based on his clinical findings and medical records review concluded that plaintiff Kathleen Vaughan- Ware sustained a cervical and lumbosacral strain and [* 7] See id.; StafJv. Yshua, multiple soft tissue contusions all of which have since resolved. AD. 3d 614 874 N. Y.S. Cantave v. Gelle 60 AD.3d 988 877 2d 180 (2d Dept. 2009); Y.S. 2d 129 (2d Dept. 2009). prima facie Having made a sustain a " serious injur" showing that plaintiff Kathleen V aughan- W are did not within the meaning of the statute , the burden shifts to plaintiffs to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a " serious 797 N. S.2d 380 (2005). injur" Perez, v. See Pommells was sustained. 4 N. Y.3d 566, See also Grossman v. Wright, supra. In opposition , counsel for plaintiffs relies upon, inter alia plaintiff Kathleen Vaughan. Ware s unsworn hospital records; the affrmation of Lawrence V. Crafa , M.D. , plaintiff Kathleen Vaughan- Ware s primar care physician; the sworn affidavit of Dion Visconti , D. C., a chiropractor who apparently treated plaintiff Kathleen Vaughan- Ware seventeen times between Februar 14, 2005 and May 30 2007 for " some minor muscle tension and stress relief; " plaintiff Kathleen Vaughan- Ware s unsworn records from Winthrop Orthopedic Associates , P. ; the unsworn MRI report of Dr. Robert Young, M. D. and the affirmation of Dr. OmidS. Barzideh , an orthopedist who first examined plaintiff Kathleen Vaughan- Ware on June 12 2007 and then again on October 27 2011. This proof is insuffcient to raise a triable issue of fact herein. First , the unsworn , unaffrmed MRI report of Dr. Robert Young does not constitute competent medical evidence in opposition to defendant' showing of entitlement to prima facie judgment as a matter oflaw. Not only is it unclear whether Dr. Young had the MRI of plaintiff Kathleen Vaughan- Ware s lumbar spine taken under his s pervision , his failure to report an opinion as the causality of his findings renders said report deficient. in Opposition Exhibit G. See also Collns v. Stone , supra; Betheil- See Spitz Plaintiffs ' Affrmation v. Linares , supra. [* 8] Similarly, the unsworn reports of Winthrop Orthopedic Associates , P. to defeat summar judgment. See , are insufficient Plaintiffs ' Affirmation in Opposition Exhibit F. It is unequivocally clear that saidteports are neither sworn nor affrmed; accordingly, they See Grasso v. Angerami presented in inadmissible form and are devoid of any probative value. 79 N. Y.2d 813 580 N. S.2d 178 (1991); are Pagano v. Kingsbury, 182 AD. 2d 268 587 N. 692 (2d Dept. 1992). Further , plaintiffs ' attempt to submit said reports into evidence with the submission ofa certificate of Roel Escueta, dated July 13 2011 , who identifies himself as being an " Authorized Custodian of Records for Winthrop Orthopedic Associates , P. " is unavailing. Said certificate is not sworn to by Roel Escueta and , beyond the foregoing, Roel Escueta does See not represent that he has any personal knowledge of the facts stated in said reports. 57 AD.3d 972 , 871 N. Y.S.2d 336 (2d Dept. 2008). Finally, said Washington v. Mendoza, reports are also precluded from being considered by this Cour on the grounds that they are business records under CPLR 9 4518. Medical reports, including interpretations of examinations and testing, as opposed to day to day business entries of a treating physician, canot be properly considered by this Cour as business records. S.2d 643 (1 st Dept. 1996) See Komar v. Showers 227 A. 42 AD. 2d citing Rodriguez v. Zampella, 805 , 2d 135, 641 346 N. Y.S. 2d 558 (3d Dept. 1973). Although the balance of plaintiffs ' evidence may properly be considered by this Court , it is nonetheless insuffcient to present a triable issue of fact. Initially, it is noted that since defendant submitted plaintiff Kathleen Vaughan- Ware unsworn hospital reports in support of his motion for summar judgment, in so doing, he opened the door for plaintiffs to rely upon the same unsworn reports and records in opposition to the motion. See Pech v. Yael Taxi Corp. 303 A. D.2d 733, 758 N. Y.S.2d 110 (2d Dept. 2003). Furermore , Dr. Crafa s Affrmation (see Plaintiffs ' Affirmation in Oppositon Exhibit [* 9] D) and Mr. Visconti' s Affidavit (see Plaintiffs ' Affirmation in Opposition Exhibit E) are properly before this Cour and help explain the pre-existing nature of plaintiff Kathleen , only offer an opinion as to the Vaughan- Ware s brittle bone disease. Both reports , however state and health of the plaintiff Kathleen Vaughan- Ware before the subject accident (emphasis added). Thus, the only competent medical evidence submitted by plaintiffs that speaks to the See Plaintiffs ' Affirmation in Opposition subject accident is the affirmation of Dr. Barzideh. Exhibit H. However , his report falls short of raising an issue of fact because of the physician large gap in treatment. That is, Dr. Barzideh attests that he first examined plaintiff Kathleen Vaughan Ware two , four years days after the accident on June 12, 2007 , and then not again until October 27, 2011 and four months after the subject accident. There is no concrete explanation offered by Dr. See Pommels v. Perez , supra. See also Barzideh for said gap or cessation in the treatment. Neugebauer v. Gil, 19 A. D.3d 567 , 797 N. S.2d 541 (2d Dept. 2005). This is insuffcient. Moreover , Dr. Barzideh states that , in ariving at his conclusions, he relied upon the MRI report of Dr. Young which, as stated above , was not tendered by plaintiffs in admissible form. In light of the fact that Dr. Barzideh' s conclusions were reached in reliance upon the unsworn and incompetent report of Dr. Young, the affrmation of Dr. Barzideh is without probative value on the issue of whether plaintiff Kathleen Vaughaninjur. See Govori v. Agate Corp., 44 AD. 3d 821, Ware suffered a serious Besso v. 843 N. Y.S.2d 459 (2d Dept. 2007); plaintiffs Demaggio 56 A.D.3d 596, 868 N. Y.S.2d 681 (2d Dept. 2008). A treating physician may not rely upon his review of an unsworn medical report prepared by another doctor sworn copy of such report has not been attached to the treating physician affirmation. See Merisca v. Alford, , where a s affidavit or 243 AD. 2d 613, 663 N. Y.s. 2d 853 (2d Dept. 1997). This is because , plaintiff s doctors , just like plaintiffs, canot rely on unsworn medical evidence to [* 10] establish a serious injur. Therefore , in the absence of any competent or admissible evidence supporting a claim for serious injur, defendant's motion seeking sumar judgment dismissal of the plaintiffs Verified Complaint is hereby GRANTED. This shall constitute the Decision and Order of this Cour. DENISE L. SHER, A. Dated: Mineola, New York March 6 , 2012 ENTERED MAR 08 2012 NASSAU COUHTY COWTY OLUK' 10- Of FtC I

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.