Yoon Jung Kim v Carpio
2012 NY Slip Op 30954(U)
April 11, 2012
Supreme Court, Queens County
Docket Number: 4479/2011
Judge: Robert J. McDonald
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SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
CIVIL TERM - IAS PART 34 - QUEENS COUNTY
25-10 COURT SQUARE, LONG ISLAND CITY, N.Y. 11101
P R E S E N T : HON. ROBERT J. MCDONALD
Justice
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YOON JUNG KIM,
Index No.: 4479/2011
Plaintiff,
- against -
Motion Date: 03/29/12
Motion No.: 19
Motion Seq.: 1
ANDERS CARPIO and KRYSTAL GALLAGHER,
Defendants
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The following papers numbered 1 to 13 were read on this motion by
defendants, ANDERS CARPIO and KRYSTAL GALLAGHER, for an order
pursuant to CPLR 3212 granting defendants summary judgment and
dismissing the complaint of YOON JUNG KIM on the ground that
plaintiff did not sustain a serious injury within the meaning of
Insurance Law §§ 5102 and 5104:
Papers
Numbered
Notice of Motion-Affidavits-Exhibits-Memorandum of Law...1 - 6
Affirmation in Opposition-Affidavits-Exhibits............7 - 10
Reply Affirmation.......................................11 - 13
This is a personal injury action in which plaintiff, YOON
JUNG KIM, seeks to recover damages for injuries she sustained as
a result of a motor vehicle accident that occurred on October 19,
2010, on Northern Boulevard at or near its intersection with
Utopia Parkway, Queens County, New York.
At the time of the accident, the plaintiff was operating her
vehicle eastbound on Northern Boulevard intending to make a left
turn onto Utopia Parkway when her vehicle was struck by the
vehicle being operated by defendant KRYSTAL GALLAGHER and owned
by defendant ANDERS CARPIO. Plaintiff was allegedly injured as a
result of the impact.
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The plaintiff commenced this action by filing a summons and
complaint on February 23, 2011. Issue was joined by service of
defendantsâ verified answer dated April 26, 2011. Defendants now
move for an order pursuant to CPLR 3212(b), granting summary
judgment dismissing the plaintiffâs complaint on the ground that
plaintiff did not suffer a serious injury as defined by Insurance
Law § 5102.
In support of the motion, defendant submits an affirmation
from counsel, Marcella Gerbasi Crewe, Esq; a copy of the
pleadings; plaintiffâs verified bill of particulars; a copy of
the transcript of the plaintiffâs examination before trial; and
the affirmed medical reports of Dr. Isaac Cohen, a board
certified orthopedic surgeon and Dr. Steven L. Mendelsohn, a
board certified radiologist.
In her verified bill of particulars, plaintiff, Yoon Jung
Kim, age 54, states that as a result of the accident she
sustained, inter alia, a partial tear of the right rotator cuff
requiring arthroscopic surgery and posterior disc herniations at
C5-C6, C6-C7, C7-T1, L4-L5 and L5-S1 with impingement.
Plaintiff contends that she sustained a serious injury as
defined in Insurance Law § 5102(d)in that she sustained a
permanent consequential limitation or use of a body organ or
member; a significant limitation of use of a body function or
system; and a medically determined injury or impairment of a
nonpermanent nature which prevented the plaintiff from performing
substantially all of the material acts which constitute her usual
and customary daily activities for not less than ninety days
during the one hundred eighty days immediately following the
occurrence of the injury or impairment.
The plaintiff, was examined on October 18, 2011 by Dr. Isaac
Cohen, a board certified orthopedic surgeon, retained by the
defendants. In his affirmed report, he states that plaintiff
stated that she injured her left knee, right shoulder, neck and
back in the accident. At the time of the examination she was
still experiencing pain in her right shoulder neck and back. Dr.
Cohen performed quantified and comparative range of motion tests.
He found that the plaintiff had no limitations of range of motion
in the cervical spine, lumbosacral spine, right shoulder, and
left knee. Dr. Cohen diagnosed plaintiff with a resolved cervical
strain, resolved lumbosacral strain and resolved left knee
contusion and concluded that plaintiff was âstatus post right
shoulder arthroscopy.â He concluded that the plaintiff sustained
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mild soft tissue complaints that resolved uneventfully. He states
that based upon his examination and his review of the plaintiffâs
MRI studies, the right shoulder arthroscopic surgery was due to
preexisting AC joint degeneration and congenital problems that
were not accident related. He states that there is no indication
of permanency and that plaintiff may continue to work without
restrictions.
Dr. Steven Mendelsohn a radiologist, examined the MRI
studies of the plaintiffâs cervical spine, right shoulder and
left knee. In his affirmed reports he states that he observed
disc herniations at C3-4 C4-5, C5-6 and C6-7 due to degenerative
changes. He states that the MRI of the cervical spine revealed no
evidence of focal herniation or any abnormality causally related
to the accident of October 19, 20010. With respect to the right
shoulder he observed a normal rotator cuff. He concluded that
there was some acromioclavicular degeneration otherwise the MRI
of the right shoulder was normal. With respect to the MRI of the
left knee he observed no meniscal or ligamentous tear.
In her examination before trial, plaintiff testified that
the day following the accident she sought treatment at Park Pain
Clinic at which time she was examined by Dr. Park. She began a
course of physical therapy at the Park Clinic where she attended
for two or three months. Three months after the accident she had
arthroscopic surgery performed on her right shoulder by Dr. Sun.
She then began physical therapy with Dr. Yom which lasted for two
months. Because she felt no improvement she began acupuncture
treatments with Dr. Ham which continued up until the present
time. Plaintiff testified that she also receives injections for
pain in her shoulder and knee. Plaintiff further testified that
as a result of the accident she missed two to three weeks from
work.
Defendantâs counsel contends that the medical reports of
Drs. Cohen and Mendelsohn, together with the plaintiffâs
deposition testimony, are sufficient to establish, prima facie,
that the plaintiff has not sustained a permanent consequential
limitation or use of a body organ or member; a significant
limitation of use of a body function or system; or a medically
determined injury or impairment of a nonpermanent nature which
prevented the plaintiff from performing substantially all of the
material acts which constitute her usual and customary daily
activities for not less than ninety days during the one hundred
eighty days immediately following the occurrence of the injury or
impairment.
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In opposition, plaintiffâs attorney Marc A. Williams,
Esq., submits his own affirmation as well as the affidavit of
plaintiff Kim and the affirmed medical reports of orthopedic
surgeon Yan Q. Sun, and a medical report of Dr. Isaac Cohen
with respect to a different plaintiff in an unrelated action
Dr. Sun states that he first examined the plaintiff on
February 9, 2011 four months post-accident. At that time,
after performing objective and comparative range of motion
testing on the plaintiffâs right shoulder and reviewing the
MRIs, he found that she suffered from severely limited range
of motion, significant abnormal clinical findings and trauma
related structural damage. Dr. Sun states that he performed
arthroscopic surgery on February 11, 2011 during which he
observed a partial tear of the right shoulder supraspinatus
tendon. He re-evaluated the plaintiff on January 18, 2012, at
which time she still exhibited significant limitations of
range of motion of the of the right shoulder. He concludes
that the plaintiffâs injuries are permanent in nature, have
resulted in a permanent consequential limitation of use of
the right shoulder, and are causally related to the motor
vehicle accident.
On a motion for summary judgment, where the issue is
whether the plaintiff has sustained a serious injury under
the no-fault law, the defendant bears the initial burden of
presenting competent evidence that there is no cause of
action (Wadford v. Gruz, 35 AD3d 258 [1st Dept. 2006]). "[A]
defendant can establish that a plaintiff's injuries are not
serious within the meaning of Insurance Law § 5102 (d) by
submitting the affidavits or affirmations of medical experts
who examined the plaintiff and conclude that no objective
medical findings support the plaintiff's claim" (Grossman v
Wright, 268 AD2d 79 [1st Dept. 2000]). Whether a plaintiff
has sustained a serious injury is initially a question of law
for the Court (Licari v Elliott, 57 NY2d 230 [1982]).
Initially, it is defendant's obligation to demonstrate
that the plaintiff has not sustained a "serious injury" by
submitting affidavits or affirmations of its medical experts
who have examined the litigant and have found no objective
medical findings which support the plaintiff's claim (see
Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v
Eyler, 79 NY2d 955 [1992]). Where defendants' motion for
summary judgment properly raises an issue as to whether a
serious injury has been sustained, it is incumbent upon the
plaintiff to produce evidentiary proof in admissible form in
support of his or her allegations. The burden, in other
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words, shifts to the plaintiff to come forward with
sufficient evidence to demonstrate the existence of an issue
of fact as to whether he or she suffered a serious injury
(see Gaddy v. Eyler, 79 NY2d 955 [1992]; Zuckerman v. City of
New York, 49 NY2d 557[1980]; Grossman v. Wright, 268 AD2d 79
[2d Dept 2000]).
Here, the proof submitted by defendants including the
affirmed medical reports of Drs. Mendelsohn and Cohen and the
pre-trial testimony of the plaintiff was sufficient to meet
its prima facie burden by demonstrating that the plaintiff
did not sustain a serious injury within the meaning of
Insurance Law § 5102(d) as a result of the subject accident
(see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy
v Eyler,79 NY2d 955 [1992]).
However, this Court finds that the plaintiff raised
triable issues of fact by submitting the affirmed medical
report of Dr. Sun attesting to the fact that the plaintiff
had significant limitations in range of motion of her right
shoulder contemporaneous to the accident and in a recent
examination, and concluding that the plaintiff's limitations
were significant and permanent and resulted from trauma
causally related to the accident (see Salman v Rosario, 87
AD3d 482 [1st Dept. 2011][plaintiff's objective evidence of
injury, four months post-accident, was sufficiently
contemporaneous to establish that plaintiff had suffered a
serious injury within the meaning of the statute]; Ortiz v.
Zorbas, 62 AD3d 770 [2d Dept. 2009]; Azor v Torado,59 ADd 367
[2d Dept. 2009]).
Plaintiff also testified at her examination before trial
that she was treated continuously through the date of the
deposition and only stopped when told that her treatments
would be palliative in nature and because her no-fault
benefits were terminated. As such, the plaintiff raised a
triable issue of fact as to whether she sustained a serious
injury under the permanent consequential and/or the
significant limitation of use categories of Insurance Law §
5102(d) as a result of the subject accident (see Khavosov v
Castillo, 81 AD3d 903[2d Dept. 2011]; Mahmood v Vicks, 2011
NY Slip Op 653 [2d Dept. 2011]; Compass v GAE Transp., Inc.,
79 AD3d 1091 [2d Dept. 2010]; Evans v Pitt, 77 AD3d 611 [2d
Dept. 2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 743
[2d Dept. 2010]).
Although defendant's radiologist, Dr. Mendelsohn opined
that the plaintiffâs knee and back injuries were caused by
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degeneration, the Courts have held that even if the
plaintiff's doctor does not specifically address the findings
in the reports submitted by the defendants that the
abnormalities in the tested areas were degenerative, rather
than traumatic, the findings of the plaintiff's doctor that
plaintiff's injuries were indeed traumatic and were causally
related to the collision, is sufficient as it implicitly
addressed the defendants' contentions that the injuries were
degenerative (see Fraser-Baptiste v New York City Transit
Authority,81 AD3d 878 [2d Dept. 2011]; Harris v Boudart, 70
AD3d 643 [2d Dept. 2010]).
Accordingly, for the reasons set forth above, it is
hereby,
ORDERED, that the defendantâs motion for an order
granting summary judgment dismissing plaintiffâs complaint is
denied.
Dated: Long Island City, N.Y.
April 11, 2012
______________________________
ROBERT J. MCDONALD
J.S.C.
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