Paz v Guevara

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Paz v Guevara 2012 NY Slip Op 30925(U) April 2, 2012 Supreme Court, Nassau County Docket Number: 12285/10 Judge: Anthony L. Parga 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- NEW YORK STATE- NASSAU COUNTY PRESENT: HON. ANTHONY L. PARGA JUSTICE PART 6 GLORIBEL PAZ PlaintifL INDE)( NO. 12285/1 -against- ANIBAR GUEVARA , CLAUDETTE CHANG and SHAWN URON 0 MOTION DATE: 02/24/12 SEQUENCE NO. 001 002 l)efendants. Notice of Motion , Ails. & Exs........... H. """'H'""" ........................... H... . Notice of Cross- Motion , All's & Exs....................................................""""""" ............ 2-Affirmation in Opposition & Exs. """"" H HHH.... 'H" H.. H' '''''''''''' H"""""""""" Reply Affirmation........................................................................... H............................. Reply Affirmation...................... H""""""""""""""""""""""""""'''''''''''''''''''''''''''''' Upon the foregoing papers , it is ordered that the motion by defendant , Anihar Guevara and the cross-motion by defendants , Claudette Chang and Shawn Uron , for summary judgment pursuant to CPLR 93212 , on the grounds that the plaintitTdid not sustain a serious injury within the meaning of New York State Insurance Law 9 5102(d) are denied. This is an action for personal il juries aJlegedly sustained by plaintiff Gloribel Paz in an automobile accident which occurred on April 5 2009 on North 22 Street , at or about its intersection with Merritt Avenue , in Wyandanch , Suffolk County, New York. Movants contend that plaintiff's injuries f:lil to meet the " serious Insurance Law 9951 02( d). In support of their injury " requirements of motion and cross-motion , Movants submit the plaintiff's verified biJl of particulars , plaintiff's deposition transcript , an examination report of neurologist , Dr. Maria Audrie Dejesus , an examination report of orthopedic surgeon , Dr. Robert Israel , and a radiology report by Dr. Audrey Eisenstadt relating to plaintiff's left shoulder MRf left knee MRI , cervical spine MRI , and lumbar spine MRf. To begin , Movants contend that [* 2] plaintifftcstified that shc was a front seat passenger in the vehicle operated by her boyfl' iend Anibar Guevara. Plaintiff testified that she did not lose consciousness as a result of the accident nor did her body make contact with the interior of the vehicle. She did not leave the scene uf the accident in an ambulance or seek medical treatment at the hospital. Shc consulted with a doctor nine days after the accident on April 14 , 2009 , complaining of pain in her neck , left shoulder , left knee , and both wrists. Thereaftcr , she underwent six months of physical therapy. Plaintiff testified that she underwent arthroscopic surgery to her left shoulder on March 24 , 20 10 by Dr. Dov Berkowitz. After the accident , plainti ff attempted to return to work as a baby si iter , hut testified that she was unable to return to work and has not attempted to work since said time. Movants submit the report of Dr. Maria Audrie DcJcsus , a board certified neurologist. Dr. DeJesus examined the plaintiff at defendant's requcst on May 19 20 II. Dr. DeJesus found no evidence of a primary neurological disability or deficit and diagnosed plaintiff with " cervical and thoracolumbar spine sprain/strain , resolved. " post She also opined that plaintiff " can return to work as a baby sitter and perform all usual daily activities without restriction or any neurological limitations. " Movants further submit the report of board celiified orthopedic surgeon , Dr. Robert Israel , who cxamined plaintiff at defendant's request on April 19 2011. Dr. Israel examined the plaintiff, performed range of motion testing on the plaintiff , and compared those findings to nOlmal findings. Dr. Israel found that plaintiff had normal ranges of motion in her cervical spine , left shoulder , and left knec. Dr. Israel concluded that plaintiff had resolved sprain of the cervical spine and left knee and " SP arthroscopy of the left shoulder. " Dr. opined that based upon his examination , the plaintiff has no orthopedic disability as a Israel resuJt of the accident. He also opined that the plaintiff is capable of work activities and activities of daiJy living without restriction. Lastly, Movants submit the radiology rcport of Dr. Audrey Eisenstadt plaintiff's left shoulder MRI , left knee MRI , cervical spine MRI Eisenstadt opined that plaintiff's left shoulder MR , who reviewed , and lumbar spine MRL Dr. T was normal and showed no rotator Cll ff tear. Dr. Eisenstadt opined that plaintiff's left knee MRI showed a grade n mucoid intrasubstance degenerative signal change , posterior horn ofthe medial meniscus with minimal joint effusion. She opined that same is a degenerative process without traumatic basis or causal relationship to [* 3] the within accident. Dr. Eisenstadt opined that plaintiff's cervical spine MRI showcd cervical straightening, a congenital block vertebra at C3- 4 with a hypoplactic intervertebral disc , and desiccation at C2- , C4- C5- 6. Dr. Eisenstadt opined that same is not traumatic in origin or causally related to the accident. Dr. Eisenstadt opincd that plaintiff's lumbar spinc M!\I , and showed desiccation and bulging at the 1A- Icvel , which she also opined is a manifestation of degenerative disc disease and not causally related to the accident. Accordingly, Movants have demonstratcd a prima facie showing of entitlement to summary judgment on the grounds that plaintifrs allcged injuries do not meet the serious injury 02( d). The proponcnt of a summary judgment motion " must make a prima facie showing of entitlement to judgment as a matter of law threshold ofInsurance Law 9951 , tendcring sufTicicnt evidence to demonstrate the absence of any material issues of fact." (Alvarez v . Prospect I-osp., 68 N. Y.2d 320 (1986)). Once the movants have demonstrated a prima facie showing of entitlement to judgment , the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to cstablish thc existence of fact which require a trial of the action. materiHI issues of a (Zuckerman v. City (?f New York 49 N. Y. 2d 557 (1980)). In opposition , plaintiff submits the affirmed rcports of Dr. Joseph Percz , Dr. Miguel Vargus , Dr. Kelman , Dr. Benatar , and radiologist , Dr. Alan B. Greenfield. The unsworn report of chiropractor , Dr. Peter A. Kicha , is not in admissible form and shall not be considered by this Court. Dr. Joseph Perez examined the plaintiff two days after the accident on April 16 , 200t). Dr. Perez s affrmed reports of April 16 2009 , April 30 , 2009 , June 4 2009 , and April 21 2009 May 21 2009 , and June 25 , 2009 demonstratc that plaintiff made complaints of left shoulder pain , right shoulder pain , mid and lower back pain , and bilateral wrist pain. Dr. Perez pcrformed range of motion examinations with dual inclinometer protocol on April 21 , 2009 , May 21 , 2009 and June 29 , 2009 , which determined that plaintiff had decreased ranges of motion in her cervical , thoracic , and lumbar spines , as well as her upper and lower extremities , with a final whole body impairment of 34% 33%) and 23% , respectively. Dr. Miguel Vm- gus , a physiatrist examined plaintiff on April 21 , 2009 and June 16 2009 and fc)Und of motion in her left shoulder and cervical spine. restrictions in plaintiff's range [* 4] In addition , radiologist , Dr. Alan B. Greenfeld , interpreted plainti ff's left shouldcr, !.n knee , cervical spine , and lumbar spine MRIs. I Ie opined that plaintiff's left shoulder MIU revealed tendinosis of the distal suprasinatus tendon; that plaintiff's Icft knce M RI revealed a grade II signal throughout the menisci , without evidencc of a focal tear , and joint effusion; that plaintiff's cervical spinc MRI revealed a midline tear of the annulus fibrosis with shallow central disc hcrniation at C5- 6 and bulging disc at C6- 7; and that plaintiffs lumbar spine central disc herniation with midline tear ofthe annulus fibrosis at L4- MRI revealed a , and facet arthropathy at L3- 4 and L4- 5 bilaterally. Plaintiff thereafter went for orthopedic examinations with Dr. llarshad C. Bhatt on August 11 2009 and September 22 2009. PlaintilTmade complaints left knee pain. Dr, Bhatt performed range of motion testing often shouldcr pain and which revealed decreased ranges of motion in plaintiff's lefl shoulJer , but normalwnges of motion in her len knee. As a result Bhatt recommended arthroscopic surgery of the lell shoulder. , Dr. Plaintiff thercafter went to Dr, Dov .1. Berkowitz , an orthopedic surgeon , on October 13 2009. Dr. Dov J. Berkowitz recommended arthroscopic surgery to plaintiff's letl shoulder. Dr. Berkowitz performed an intra- articular debridement of the subsapularis tendon and of the SLAP lesion on March 24 , 20 I O. On April 21 , 20 10 , after her arthroscopic lefl shoulder surgery, plaintiff consulted with I Kelman who t k Sam ue! )Und that plaintilTstil1 had restricted rangcs of motion in her len shouldcr, Finally, plaintiff was seen by Dr. David Bcnatar on Septcmber 15 , 2011. Dr, Bcnatar performed range of motion testing and determined that plaintilJ had decreased rangcs of motion in her left shoulder and that her len knee examination revealed a possible patellar grind with pain. He agreed that her letl knee MRJ did not show a " definitive " gradc 3 tear , but opined that plaintiff's examination exhibited a medial mcnical tear. Dr. 13enatar opined that therapy will not benefit plaintiJrs left shoulder. I-Ie also opined that plaintiff's further physical injuries are permanent , her overall prognosis is fair , and her Jell shoulder prognosis is f lir to pOOl' I k further opined that there is a causal relationship betwccn plaintiff's injuries and the motor vchiclc accident of April 5 , 2009. Plaintiff has produced evidentiary proof in admissible form sufficient to establ ish the existence of material issues of fact which requirc a trial of this action. 0';ee , Adelul1ii v. U- Haul. [* 5] 250 A.D. 2d 483 672 N. 56 (I sl Dept. 2(04)). The affrmed report of Dr. Benatar , as well as the reports of Dr Joseph Brown v. Achy, S.2d 869 (1st Dept. 1998); 9 A.D. 3d 30 , 776 N. Perez , Dr. Miguel Vargus , and Dr. Kelman , demonstrate objective evidence of the physical limitations in plaintiff's left shoulder resulting from the within accident and warrant thc denial of the defendants ' motion and cross-motion. (See , Kearse New York City Transit Authority, A.D.3d 45 (2d Dept. 2005)). In addition , whilc the Court of Appeals has held that submission of v. a doctor s report bcaring contemporaneous numerical measurements of plaintiff's ranges of motion is not rcquired to dcfeat a motion /()r SU 11 mary judgment on thrcshold grounds , plaintiffs submission of Dr. Perez s reports dcmonstrates signi1icant limitations contemporaneous with the accident sufficient to establish a causal relationship between the accident and the injuries afJcgcd. (See, Perl v. Meher 18 N. Y.3d 208 960 N. 2d 424 (2011 )). Accordingly, defendants ' motion and cross-motion for summary judgment are denied. there is any doubt as to the existence of a triable issue of fact arguable , summary judgment should be denied. (Celardo Museums at Stony Brook v . 85 (2d Dept. 1995); v. , or if a material issue of J lc1 is Bell 222 A. 2d 547 635 N. Vilage (?fPatchogue Fire Dept. 572 , 536 N. Y.S. 2d 177 (2d Dept. 1989)). Dated: April 2 , Cc: 2012 Malone , Tauber & Sohn , 14 7 West Merrick Road O. Box 589 Freeport , NY 11520 P. Abamont & Associates 200 Garden City Plaza , Suite 400 O. Box 9250 Garden City, NY 11530- 9250 Cheven , Keely & IIatzis , Esqs. 40 Wall Street , 12 Floor New York , NY 10005 ENTERED APR 042012 NASSJ.U (,vUNfV COUNTY CLI!R'K' S OFF 146 A.D.

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