Carmody v Bald

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Carmody v Bald 2012 NY Slip Op 30799(U) March 21, 2012 Sup Ct, Nassau County Docket Number: 014319/10 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 17 MARGUERITE CARMODY Plaintiffs, Index No. 014319/10 - against - Mot. Seq. # 3 ". Mot. Date 1/4/11 Submit Date 2/1/12 ESTHER BALD and ZEV BALD )(XX Defendants. The following papers were read on this motion: Papers Numbered Notice of Motion , Cross Motion Affidavits (Affirmations , Exhibits Attd)......... Answering Affidavit............................................................................................. 3 Reply Affidavit..................................................................................................... . Motion by defendants , Esther Bald and Zev Bald , for an order , awarding them summary judgment dismissing the plaintiff Marguerite Carmody s complaint on the grounds that her injuries do not satisfy the " serious injury " threshold requirement of Insurance Law 951 02( d), is GRANTED. Cross motion by plaintiff Marguerite Carmody, for an order , pursuant to CPLR 3212 granting her summary judgment on the grounds that her injuries satisfy " serious requirement ofInsurance Law 95102(d) is DENIED. injury " threshold [* 2] Initially, it is noted that by short form order dated August 26 2011 , this court previously granted plaintiffs motion for summary judgment on the issue ofliability. Upon the instant applications , the parties seek summary judgment on the issue of whether the plaintiff sustained a serious injury " within the meaning of the Insurance Law. Briefly, this action arises out of an automobile accident that occurred on February 15 2009 at the intersection of Nassau Expressway and Burnside Avenue in Lawrence , New York. The plaintiff, who was stopped at a red light , was struck by the defendant Esther Bald who drove the vehicle owned by defendant Zev Bald , into the rear of plaintiffs vehicle. Plaintiff claims that , as a result of the collsion , she sustained injuries to her back. Specifically, she alleges inter alia the following serious injuries: disc herniations at C4- 5 and C5- 6; limited range of motion of the cervical and lumbar spine; cervicolumbar strain; straightening of the normal cervical lordosis; lumbar spasms; suspected mid or lower lumbar levoscoliosis versus the torticollis with the apex toward the left and centered at approximately L4; midline anular tear at L5- S 1 , with central disc herniation indenting the dural sac; and transitionalized intervertebral disc segment , which is deemed S l- S2. Plaintiff claims that following this accident , she was confined to her bed and home for approximately two weeks (Bil of Particulars 9( a J and (b J). She testified that at the time of this accident , she was employed as a " records and information manager " but that in June 2009 , she took a medical leave of absence for psychiatric conditions including depression and anxiety, unelated to this accident. She testified that as a result of this accident , she missed " less than a week" of non-consecutive days after this accident. As to activities , plaintiff testified that she can no longer bowl or do kick boxing. She testified that following this accident , her roommate has [* 3] been progressively doing more of the housework. She also testified that following this accident she has leisurely traveled to Maryland , Florida exico and St. Martin. Plaintiff, who was 33 years old at the time of the accident , claims that her injuries fall within the following five categories of the serious injury statute: to wit , a fracture; 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; and a medically determined injur 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 ninety days during the one hundred eighty days (ld. ~12). immediately following the occurrence of the injury or impairment Based upon a reading of the papers submitted herein , however , it is plain that the plaintiff did not fracture any bone as a result of this accident. Her injuries therefore do not satisfy the statutory definition of a " fracture (Catalan v. Empire Storage Warehouse 213 AD2d 366 (2 Dept 1995)). Further , inasmuch as the plaintiff has failed to allege and claim that she has sustained a total loss of use " of a body organ , member , function or system , it is clear that her injuries do not satisfy the " permanent loss of use " category of Insurance Law 951 02( d) (Oberly v. Bangs Ambulance 96 NY2d 295 (2001)). Similarly, any claims that plaintiff s injuries satisfy the 90/180 category of Insurance Law 9 51 02( d) are also contradicted by her own testimony wherein she states that she was only confined to her bed and home for two weeks as a result of this accident. Further , nowhere does the plaintiff claim that as a result of her alleged injuries , she was " medically " impaired from [* 4] (Monk performing any of her daily activities v. Dupuis 287 AD2d 187 , 191 (3 Dept. 2001)), or that she was curtailed " to a great extent rather than some slight curtailment" NY2d 230 , 236 (1982); v. Ellott , 57 Stark 299 AD2d 642 (3 Dept. 2002)). In light of these facts v. Sands (Licari this court determines that plaintiff has effectively abandoned her 90/180 claim for purposes of defendants ' initial burden of proof on a threshold motion v. (Joseph Forman 16 Misc. 3d 743 (Sup. Ct. Nassau 2007)). 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. Under the no- fault statute , to meet the threshold significant limitation of use of a body function or system or permammt 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 the statute (Licari v. Ellot supra; Grossman v. Wright 268 AD2d 79 , 83 (2 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 function 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 Avis Rent A Car Systems, (Toure 98 NY2d 345 353 (2002)). In addition , an expert' s qualitative assessment of a plaintiff s condition is also probative , provided that: (1) the evaluation has an [* 5] objective basis , and , (2) the evaluation compares the plaintiffs limitations to the normal function , purpose and use ofthe affected body organ , member , function or system (lei. Having said that , recently, the Court of Appeals in 08452 , held that a quantitative assessment of a plaintiffs Perl v. injuries Meher 2011 NY Slip Op. does not have to be made during an initial examination and may instead be conducted much later , in connection with v. (Perl litigation Meher 2011 NY Slip Op. 08452 (2011)). This court notes at the outset , however , that while the overwhelming bulk of summary judgment motions based upon the Insurance Law serious injury threshold are fied by defendants seeking the dismissal of complaints , nothing prevents the plaintiffs , including Marguerite Camody, from affrmatively seeking summary judgment on serious injury on the basis of their claimed serious injuries as supported by proper and adequate evidence AD3d 87 (2 Refuse Dept. 2011); (Damas v. Valdes Magloire 83 AD3d 685 (2 Dept. 2011)). In such v. instances , the plaintiff, as the movant, is required to demonstrate his/her entitlement to judgment as a matter of law by establishing, prima facie , that he/she sustained a serious injury within the New York City Tr. Auth. 73 AD3d 727 (2 v. (Rasporskaya meaning of the statute Dept. 2010)). Once this is established , the burden shifts to the defendants to come forward with evidence to overcome the plaintiffs submissions by demonstrating a triable issue of fact that a " serious injury " was not sustained Juran 81 AD3d 908 (2 (cf Lewis v. John 81 AD3d 904 , 905 (2 Dept. 2011 J; Mugno Dept. 2011)). With these guidelines in mind , this court wil now turn to the merits of the motion and cross motion at hand. [* 6] Dealing first with the defendants ' motion , in support thereof, the defendants rely upon inter alia the unsworn report of plaintiffs the unsworn records of the plaintiffs doctor David Zelefsky, M. primary care physician , , dated May 27, 2010; Christine Jankowski , M. , who, per the records submitted , most recently examined the plaintiff on July 23 2009 but who has consistently treated the plaintiff since December 14 2006; the unsworn physical therapy evaluation report from New York Physical & Occupational Therapy, PLLC dated September 14 2009; the affirmed report of Dr. Alan J. Zimmerman , M. , an orthopedist who performed an independent examination of the plaintiff on May 11 , 2011; and , the sworn report of Dr. Issac Cohen , MD, an orthopedic surgeon who performed an independent orthopedic examination of the plaintiff on October 21 , 2009. Initially, it is noted that the unsworn report of plaintiffs doctor David Zelefsky, M. D. and the unsworn physical therapy evaluation report from New York Physical & Occupational Therapy, PLLC are insuffcient to establish defendants ' entitlement to judgment as a matter of law. That is , Dr. Zelefsky fails entirely to set forth the objective medical testing he performed to support his conclusions v. (Vasquez Basso 27 AD3d 728 (2 Dept. 2006); Walters Papanastassiou 31 AD3d 439 (2 Dept. 2006)). Failure to indicate which objective test was Toure performed to measure the loss of range of motion is contrary to the requirements of v. Avis Rent a Car Systems supra. It renders the expert' s opinion incompetent , and the Court cannot consider such v. (Id; Powell Alade 31 AD3d 523 (2 Dept. 2006)). Similarly, the physical therapy questionnaire , based entirely upon the plaintiffs subjective complaints (Licari v. Ellot supra; Grasso v. Angerami 79 NY2d 813 (1991)), visual [* 7] inspections of the range of motion , and manual muscle therapy testing (Vasquez v. Basso supra; Walters v. Papanastassiou supra), is clearly, wholly insuffcient. Further , Dr. Cohen s affirmation also falls short of constituting objective medical evidence because Dr. Cohen also fails to set forth the objective medical testing he performed to support his conclusions; rather , Dr. Cohen relies upon his " visual examination " to quantify the range of motion measurements of plaintiffs cervical (lei. and lumbar spine The defendants ' remaining proof , however , establishes that the plaintiff did not sustain a serious injury " within the meaning of Insurance Law 951 of Dr. Alan 1. Zimmerman , M. 02( d). Specifically, the affrmed report , who examined the plaintiff and performed quantified range of motion testing on her cervical and lumbar spine with a goniometer , compared his findings to normal range of motion values and concluded that the ranges of motion measured were normal defendants ' medical evidence sufficiently demonstrates that the plaintiff did not sustain a serious injury" as a result of this accident. Taken together with the unsworn records of the plaintiffs primar care physician , Christine Jankowski , M. , who notes a significant pre- existing history of depression and anxiety, the defendant' s medical proof confirms that despite extensive motor and sensory testing, there were no deficits , and based on the clinical findings and medical records review , the plaintiff sustained a cervical and lumbar strain all of which have since resolved (Staffv. Yshua 59 AD3d 614 (2 Dept. 2009); Cantave v. Gelle 60 AD3d 988 Dept. 2009)). Having made a prima facie showing that the plaintiff did not sustain a " serious injury within the meaning of the statute, the burden shifts to the plaintiff to come forward with evidence to overcome the defendants ' submissions by demonstrating a triable issue of fact that a " serious [* 8] injury" was sustained v. (Pommels Perez Grossman 4 NY3d 566 (2005); v. Wright , supra). Here , the plaintiff s proof in opposition also is proffered as support for her own cross motion for summary judgment on the issue of " serious injury. That is , counsel for plaintiff submits the affirmation of Dr. Alan B. Greenfield , M. ,a radiologist who read and interpreted the MRI results of plaintiff s cervical and lumbar spine which were taken on October 23 2009 and June 1 David Zelefsky, M. 2010 , respectively; the unsworn reports of , dated May 27 2010 , July 27 2010 , August 24 2010 , and October 5 2010; the unsworn report of Michael Pickney, DPT , a physical therapist; the unsworn reports of Dr. Aron D. Rovner , M. ; the sworn report of Dr. David Zelefsky, M. , dated September 27 2011; and the sworn report of Dr. Edward S. Rubin , M. Plaintiff s proof is wholly insuffcient to present a triable issue of fact herein. , dated May 27 2010 , July 27 2010 First , the unsworn reports of David Zelefsky, M. August 24 2010 , and October 5 , 2010 , as well as the unsworn reports of Dr. Aron D. Rovner D. are insufficient to defeat summary judgment. Said reports are neither sworn nor affrmed; accordingly, they are presented in inadmissible form and are devoid of any probative value (Grasso v. Angerami supra; Pagano v. Kingsbury, 182 AD2d 268 (2 Dept. 1992)). To the extent that the defendants relied upon Dr. Zelefsky s unsworn report dated May 2010 in support of their motion , and in so doing, opened the door for the plaintiff to rely upon the same report and records in opposition to the motion (Pech v. Yael Taxi Corp. 303 AD2d 733 Dept. 2003)), this court notes that the only report that would be considered under this analysis would be the May 27 2010 report; Dr. Zelefsky s July, August and October reports [* 9] would nonetheless be precluded. However , for the reasons stated above , the May 27 2010 report would in any event fail to constitute admissible evidence herein. Indeed , the plaintiff s reliance upon Dr. Zelefsky report is also misplaced. Again sworn while sworn , his findings are not based upon any objective medical testing supra; Walters v. Papanastassiou (Toure incompetent v. v. (Vasquez Basso thereby rendering his opinion as to any purported loss , supra), Avis Rent A Car Systems supra; Powell v. Alade , supra). Further , plaintiffs attempt to submit the unsworn reports of Dr. Aron D. Rovner , M. into evidence with the submission of an undated affdavit of Michelle Levine , who identifies herself as being an " authorized custodian of records " for South Island Orthopedic Group, P. , of which Dr. Rovner is a member , is unavailng. Levine does not represent that she has any personal (Washington knowledge of the facts stated in said reports v. Mendoza 57 AD3d 972 (2 Dept. 2008)). Finally, said reports are also precluded from being considered by this Court on the grounds that they are business records under CPLR 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 court as business records 227 AD2d 135 (Ist Dept. 1996) citing Rodriguez The unsworn report of plaintiffs v. (Komar Zampella 42 AD2d 805 (3 physical therapist , v. Showers Dept. 1973)). Michael Pickney, DPT , is equally insufficient. Not only is this court precluded from considering any unsworn reports proffered by , but CPLR 2106 is also very clear that only attorneys , physicians and dentists the plaintiff admitted to practice in the state , may affrm , under the penalties of perjury, their statements with respect to an action in which they are not parties (CPLR 2106). Physical therapists do not come within scope of statute allowing affirmations by certain persons to be given the same force and [* 10] effect as an affidavit; to make a competent , admissible affirmation , the physical therapist , like most other persons, must first appear before a notar or other such official and formally declare Casas v. Montero, v. (Doumanis the truth of the contents of the document Conzo, 265 AD2d 296 (2 Dept. 1999); 48 AD3d 728 (2 Dept. 2008)). Mr. Pickney has failed to do this. Finally, the sworn report of Dr. Edward S. Rubin , M. D. is also inadmissible. Although . Mr. Rubin sets forth range of motion of the plaintiffs cervical and thoraco- lumbar spine , he also nonetheless fails to set forth what objective testing was used to determine such measurements Toure contrary to the requirements of v. Avis Rent a Car Systems , supra. Moreover , he fails to (Abraham compare the findings of his range of motion testing to a normal range of motion Bello, 29 AD3d 497 (2 Dept. 2006); v. Forlong Faulton 29 AD3d 856 (2 Dept. 2006)). This is clearly insuffcient. Thus , the only competent and admissible evidence proffered by the plaintiff is the sworn report of Dr. Alan B. Greenfield , M. D. It is clear from Dr. Greenfield' s affirmation that not only did he read the actual MRI films , but he also reported an opinion as to the causality of his findings , to wit the herniations observed on the above examinations , are causally related to the auto accident of Feb. 15 2009" Linares 276 AD2d 732 (2 (Collns Dept. 2000); v. Stone 8 AD3d 321 (2 Gabanell v. Dept. 2004); Betheil- Spitz Gerardi 175 AD2D 468 (3 Dept. 1991)). However , Dr. Greenfield' s affrmation , standing alone , in the absence of any other admissible evidence presented by the plaintiff, fails to raise an issue of fact as to whether the plaintiff sustained a serious injury under the " permanent consequential limitation of use of a body organ or member " or " significant limitation of use of a body function or system " categories of [* 11] Insurance Law 951 02( d). Among other things , the mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury, as well as its duration Hiscock 69 AD3d 890 (2 Dept. 2010); Chanda v. (Bleszcz Varughese 67 AD3d 947 (2nd 2009)). Dept. Therefore , in the absence of any competent or admissible evidence supporting a claim for serious injury, defendants ' motion for summar judgment dismissal of plaintiffs complaint is GRANTED and the plaintiffs cross motion for summary judgment is DENIED. The complaint is dismissed in its entirety. Settle judgment on notice. This constitutes the decision and order of this Court. All applications not specifically addressed herein are denied. Dated: Mineola , NY March 21 2012 REY S. BROWN S. Attorney for Plaintiff Finz & Finz , PC 410 East Jericho Turnpike Mineola , NY 11501 Attorney for Defendant Law Offce of Andrea G. Sawyers 3 Huntington Quadrangle , Ste. 102S PO Box 9028 Melvile , NY 11747 ENTERED MAR 2 6 2012 MAAU. COUNTY couTY ILIRt' . OFFICI

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