Sutliff v Qadar

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Sutliff v Qadar 2012 NY Slip Op 30857(U) March 30, 2012 Sup Ct, NY County Docket Number: 107610/10 Judge: Barbara Jaffe 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. UED ON41512012 [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY JAFFE .*F-@XR RA J. S. C. PRESENT: s / PART Justice I - Index Number: 107610/2010 SUTLIFF, KYLE vs. QADAR, GHULAM SEQUENCE NUMBER : 002 SUMMARY JUDGMENT MOTION DATE MOTION SEQ. NO. LhL The following papers, numbered 1 to Notice of MotionlOrder to Show Caure Anawering Affldavltn INDEX NO. 19 f , were mad on thls motlon toAor -AffldavlG - Exhlblts - Exhiblts Replylng Affldavlts Upon the foregolng papers, It Is ordered that thls motlon I s FILED APR 0 4 2012 NEW YORK BAR 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... 3. CHECK IF APPROPRIATE: P MOTION IS: ................................................ ASE DISPOSED GRANTED 0SEfTLE ORDER DO NOT POST DENIED W JAFTE 0 NMFI~AL DISPOSITION 0GRANTED IN PART c OTHER ] 0SUBMIT ORDER FIDUCIARY APPOINTMENT ~3 REFERENCE [* 2] Index No. 107610/10 Motion Subm.: Motion Seq. No.: Plaintiff, 1/10/12 002 -againstDECISION & ORDER FILED GHULAM QADAR, THE CITY OF NEW Y O N , and POLICE OFFICER JOHN MALONE, APR 0 4 2012 NEW YORK COUNTY CLERKS OFFICE For plaintiff Frank Braunstein, Esq. Frank J. Laine, P.C. 449 South Oyster Bay Rd. Plainview, NY 11 803 5 16-937-1010 For Qadar: Cynthia Hung, Esq. Baker, McEvoy et a/. 330 W. 34Ih St., 7'hF1. New York, NY 10001 2 12-857-8230 , For Clty: Stacey L. Cohen, ACC Michael A.Cardozo Corporation Counsel 100 Church St. New York, NY 10007 212-788-0609 By notice of motion dated September 7,201 1, defendant Qadar moves pursuant to CPLR 32 12 for an order summarily dismissing the complaint against him on the ground that plaintiff did not suffer a serious injury. By notice of cross motion dated December 1,2011, defendants City and Malone move for summary judgment on the same ground. Plaintiff opposes both motions. I. R A C K G R O W On December 2,2009, plaintiff was allegedly injured when, while a passenger in a vehicle being driven by defendant Malone, the vehicle was hit by another vehicle owned and operated by defendant Qadar. (Affirmation of Cynthia Hung, Esq., dated Sept. 7,201 1 [Hung Aff.], Exh. A). An unsworn MRI report, dated December 22,2009, the purpose of which was to rule out [* 3] a rotator cuff tear in plaintiffs left shoulder, reflects that a partial tear of plaintiff s rotator cuff previously seen on a 2008 MRI examination was largely unchanged, but that there was abnormal configuration and fluid surrounding plaintiffs labrum and thus a labral tear could not be excluded, which was a new finding. (Affirmation of Frank Braunstein, Esq., dated Nov. 7, 201 1 [Braunstein Aff.], Exh. C). By report dated January 6,20 10, Dr. Joseph Gregorace, an osteopath, diagnosed plaintiff with right shoulder cuff tendonitis and left shoulder derangement with suspected labrum and rotator cuff pathology, based on various tests including range of motion tests of plaintiff s left and right shoulders reflecting that he was within normal ranges. He opined that if the history given by plaintiff was correct, then there is a causal relationship. He diagnosed plaintiff as disabled and recommended that he not return to work until he was re-evaluated. (Id., Exh. A). In follow-up evaluations performed by Gregorace on February 24,20 10, April 7,20 10, after plaintiff underwent surgery on his left shoulder, and May 14,2010, plaintiff s ranges of motion in his left and right shoulders remained limited. ( I d , Exh. B). By report dated June 9,20 10, Gregorace opined that plaintiffs disability was partial and permanent and that his shoulder injuries were caused by the accident. He did not address plaintiffs previous shoulder injury. (Id.). In an evaluation dated June 30, 2010, Gregorace states that various tests on plaintiffs left shoulder were negative, and that two out of the three tested ranges of motion were within the normal range. (Id.). h his verified bill of particulars dated July 19,2010, plaintiff alleges that he sustained the following injuries: partial cuff tear, impingement syndrome, bursitis, requiring arthroscopic 2 [* 4] subacromial decompression, bursectomy, acromioplasty and debridement of the shoulders, partial tear of the supraspinatus tendon in the left shoulder requiring surgery, bursitis/synovitis in the right shoulder, bilateral internal derangement of both shoulders with loss of use, right shoulder rotator cuff tendonitis with impingement syndrome for which surgery is recommended, severe spraidstrain of the cervical spine with loss of range of motion, and severe spraidstrain of the lumbar spine with loss of range of motion. On February 2,20 10, plaintiff underwent surgery, specifically, arthroscopic subacromial decompression bursectomy, acromioplasty, and debridement partial cuff tear in his left shoulder. He also asserts that he was confined to his bed for approximately two months and his home for approximately four months and intermittently thereafter, and incapacitated from employment for approximately four months and that, upon his return, he was placed on limited duty for another two months. (Hung Aff., Exh. C). By sworn reports dated September 16,2010, Dr. A, Robert Tantleff states that plaintiff s MRI examinations for his right and left shoulders are normal and unremarkable. (Id,Exh. E). On March 14,20 1 1, plaintiff testified at an examination before trial, as pertinent here, that after the accident he was confined to his home for two weeks, that he was unable to work for four and a half months and when he returned, he was placed on light duty for one and one-half to two months thereafter, and that his usual and customary daily activities were limited after the accident and remain so. He stopped receiving medical care for his injuries in April 20 10. Plaintiff also testified that he had previously injured his left shoulder in 2008, resulting in a torn rotator cuff. (Id ,Exh. F). On May 13,201 1, Dr. Gregory Montalbano, an orthopedic surgeon, examined plaintiff and found that he had normal ranges of motion in his cervical and lumbar spines and both 3 [* 5] shoulders. Montalbano also examined plaintiffs medical records, including the December 2009 MRI reports, although he did not have the MRI images to review, and observed that the MRI report of plaintiffs left shoulder reflected a partly tom tendon which appeared unchanged when compared with an MRT performed on May 16, 2008. Montalbano determined that although plaintiff sustained a left shoulder injury during the accident, there was no substantial andor permanent injury to the left shoulder or any permanent injury to plaintiffs right shoulder or cervical or lumbar spine. He also opined that the surgery performed on plaintiffs left shoulder relates to his pre-existing shoulder injury and not the accident. (Id., Exh. D). 11. coNTENTIONS Qadar and City argue that the medical evidence submitted by Qadar establishes, prima facie, that plaintiff did not suffer a serious injury. (Rung Aff.; Affirmation of Stacy L.. Cohen, ACC, dated Dec. 1,20 11). Plaintiff contends that as Montalbano did not address his 901180 day claim, defendants motions must be denied, that defendants did not demonstrate that he did not sustain a significant limitation of use of his left shoulder, and that in any event, he established that he has a significant or permanent limitation of use of his left shoulder and was unable to perform his daily activities for not less than 90 out of the 180 days following the accident. Although plaintiff refers to a September 201 1 report by Gregorace, it is not annexed to his papers. (Braunstein Aff.). In reply, Qadar observes that Montalbano s examination reveals that plaintiff had normal ranges of motion in his shoulders and that plaintiff testified that he was confined to his home for only two weeks after the accident. He also argues that as the December 2009 MRI report was unsworn, Gregorace improperly relied on it, and that plaintiff submitted no evidence based on a 4 [* 6] recent physical examination. He observes that Gregorace failed to address the evidence that plaintiffs rotator cuff tear pre-dated the accident. (Reply Affirmation, dated Dec. 15, 201 1). JII. m a y s I$ Pursuant to section 5 102(d) of the Insurance Law, a serious injury is defined as: a personal injury which results in . . . 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 injury 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 customary daily activities for not less than ninety days dwin$ the one hundred eighty days immediately following the occurrence of the injury or impairment. Here, defendants established, prima facie, through Montalbano s affirmed medical report and plaintiffs deposition testimony, that plaintiff did not sustain a serious injury as defined by Insurance Law 5 5102. (See Pisani v First Class Car and Limousine Serv. Corp., 82 AD3d 596 [ 1st Dept 20 1 11 [defendant met burden through report of orthopedic surgeon who determined that plaintiff had normal range of motion in cervical and lumbar spine, and plaintiff s deposition testimony that he missed only three days of work after accident]; Whitaker v Soumano, 8 1 AD3d 4 11 [ 1St Dept 20 11J [defendant submitted reports based on independent medical examinations showing that plaintiffs range of motion was normal]). While Gregorace found that plaintiff had limited ranges of motion in his left and right shoulders, by June 30,2010 he determined that plaintiff had normal ranges of motion in two of the three areas tested and all of the other tests were negative. Moreover, plaintiff submits no evidence based on a more recent examination, and thus has not rebutted Montalbano s finding that he had normal ranges of motion in both shoulders. (See Lam v Dong, 84 AD3d 5 15 [ 19tDept 201 11 [plaintiff failed to submit recent examination results to rebut defendant s expert s finding 5 [* 7] of full ranges of motion more than year after last examination by plaintiffs doctor]; Townes v Harlem Group, Inc., 82 AD3d 583 [ 1 Dept 201 1J [plaintiff did not submit proof of recent examination showing loss of range of motion]; Ali v Mirshah, 41 AD3d 748 [2d Dept 20071 [since plaintiff alleged permanent serious injury and significant limitation of use, he was required to submit objective medical evidence based on recent examination]). Also, Gregorace s opinion that the accident caused plaintiffs injuries is conclusory, and he has failed to address plaintiffs previous left shoulder injury or establish that that injury was different from the new claimed injury. (See McArthur v Act Limo, Inc., 2012 WL 952854,2012 NY Slip Op 02 174 [ 1st Dept] [plaintiffs doctor ignored effect of prior accidents and submitted no evidence that claimed injuries differed from prior injuries]; Lam, 84 AD3d at 5 15 blaintiff s physician set forth no objective basis or reason other than history given by plaintiff for concluding that injuries caused by accident]). While the 2009 MRI report reflects that a labral tear could not be excluded, plaintiff submits no medical evidence showing that he actually sustained one. Although it is undisputed that plaintiff missed four months of work, absent proof that his injuries were caused by the accident or any objective medical evidence showing that his daily activities were substantially curtailed, his 90/180 day claim fails. (See Arroyo v Morris, 85 AD3d 679 [lut Dept 201 11 [plaintiffs 90/180 day claim insufficient although he missed nine months of work]; Mitchell v Calk, 90 AD3d 584 [ lStDept 201 11 [claimed restrictions in usual and customary activities unsupported by objective medical evidence]; Blake v Portexit Corp., 69 AD3d 426 [ 1 Dept 20 101 [fact that plaintiff missed more than 90 days of work not determinative; plaintiffs statement as to curtailment of daily activities unsupported by medical 6 [* 8] evidence]). For the same reason, it is irrelevant to plaintiffs 90/180 day claim that defendant's expert did not address this issue. (Jirnenez v Polanco, 88 AD3d 604 [ 19tDept 201 11). Accordingly, it is hereby ORDERED, that defendants' motions for summary judgment are granted, and the complaint is dismissed. ENTER: DATED: March 30,201 2 New York, New York J-S-c* I NEW YORK COUNTY CLERKS OFFICE ' R 3 0 20'12 M 7

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