Haave v Jean-Louis

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Haave v Jean-Louis 2012 NY Slip Op 30994(U) April 6, 2012 Supreme Court, Suffolk County Docket Number: 08-37174 Judge: Arthur G. Pitts 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] INDEX No. CAL.No. SHORT FOR.. QR[)F.R M 08-37174 11-01232MV SUPREME COURT - STATE OF NEW YORK l.A.S. PART 43 - SUFFOLK COUNTY PRESENT: Hoo. ARTHUR G. PITTS Justice of the Supreme Court copy MOTION DATE 10-13-11 (#004 & #005) MOTION DATE 1-5-12 (#006) ADJ. DATE: 2-12-12 Mot. Seq. # 004 - MD # 005 -XMD #006 - XMG --------------------------------------------------------------X MARKHAAVE, Plaintiff, SIBEN & SIBEN, LLP Attorney for Plaintiff 90 East Main Street Bay Shore, New York 11706 BAKER, MCEVOY, MORRISSEY & MOSKOVITS, P.e. Attorney for Defendants Jean-Louis and Patwary 330 West 34th Street, 7th Floor New York, New York 10001 - against - FRITZ JEAN-LOUIS, MARGARET JEANLOUIS, MOHAMMED A. PATWARY and ADEL M. MINA, Defendants. NANCY L. ISSERLIS, ESQ. Attorney for Defendant Mina 36-01 43rd Avenue Long Island City, New York 11101 ---------------------------------------------------------------X Upon the following papers numbered 1 toll. read on this motion and cross motions for summarY mdl!fficnt, serve supplemental bill of particulars; Notice of Motion! Order to Show Cause and supporting papers (004) 1-10 ; Notice of Cross Motion and supporting papers (005) 11-15; (006) 16·26; Answering Affidavits and supporting papers 27-28; 29-30 ; Replying Affidavits and supporting papers 3] -32 ; Other ....ll.-; (And aftcr hun illg cOdlisd ill .mpp0l't Illld opposed lei tlie metTr.rn) it is, ORDERED that motion (004) by the defendants, Fritz Jean-Louis, Margaret Jean-Louis, and Mohammed A. Patwary, pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that the plaintiff did not sustain a serious injury as defined by Insurance Law §51 02 (d), is denied; and it is further ORDERED that motion (005) by the defendant, Adel M. Mina, pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that the plaintiff did not sustain a serious injury as defined by Insurance Law §5102 (d), is denied; and it is further [* 2] Ilaave v Jean-Louis Index No. 08~37174 Page 2 ORDFl?ED that Illotion (006) by the plaintIff, Mark Haave, pursuant to CPLR 3043 and 3025 For an order grantlllg him leave to serve a Supplemental Bill of Particulars, is granted ano the proposed Supplemental 13111 Paltieulars dated December 23,20 II is deemed served nunc pro tunc; and it is further of ORDERED that thedefcndanL'>, ifso advised, may conduct independentorthopeoic and neurological examinations of the plaintiff within forty days of the date of this order upon service of a copy oFthls order with notice of entry upon all partics, and upon a minimum of fifteen days notice to the plainti iTofllle date of s:lid llldependent orthopedic and neurological examinations. In this negligence action, the plaintiff~ Mark IIaave, seeks damages for personal injuries allegedly sustained III the accident whieh occurred on December 24, 2006 on East 83,d Street at its intersection with 3".1 Avenue. New York, New York. The plaintiff was a passenger in the vehicle operated by the defendant Mohammed A. Panvary, when their vehicle, and the vehicle operated by the defendant Adel M. Mina, came 1ntocontact. Pursuant to Insurance Law § 5102 (d), "'[s]eriolls injury' means a personal injllrywhich results in death; dismcmbemlcnt; significant disfigurement; a fracture; loss of a fetus; pem13nent loss of use of a body organ, member. function or system; pennanent consequential limitation of use of a body organ or member; SIgnificant limitation of use of a body function or system; or a medical determined injury or Impaimlent of a non-pcmlancnt nature which prevents the injured person from pcrfoffiling substantially all of the matcrinl acts which constitute such person's usual and customary daily activities for not less than ninety dnys during the one hundred eighty days immediately following the occurrence of the injury or impairment." The term "significant," as it appears in the statute, has been defined as "something more than a minor limitation or use," and the term "substantially all" has been construed to mean "that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailmcnt (Licari "Elliot, 57 NY2d 230, 455 NYS2d 570 [1982]). On a motion for summary judgment to dismiSS a complaint for failure to set forth a prima f~lciecase of serious injury as defined by Insurance Law § 5102(d), the initial burden is on the defendant to "present evidence in competent form, showing that plaintiff has no cause of action" (Rodriquez v Goldstein, I R2 AD2d 396, 582 NYS2d 395, 396 [1st Dept 1992]). Once the defendant has met the hurden, the plaintiff must then, byeompetent proof, establish aprimafacie case that such senous injury exists (DeAngelo v Fitlel Corp. Services, IIlC., 171 AD2d 588, 567 NYS2d 454, 455 I1 st Dept 1991]). Such proof, ill order to be III competent or admissible form, shall consist of affidavits or affirmations (Pagano v Kil1Ksbury, I ~2 AD2d 268. SR7 NYS2d 692 [2cl Ocpt 1992]). The proof must be viewed in a ltght most t~lVorableto the nonmoving party, here the plaintiff(Cammarere v Villanova, 166 AD2d 760, 562 NYS2d 80R, 810 [3d Dcpt 1990]). In order to recover under the "permanent loss of use" category, a plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance IIIC., 96 NY2d 295. 727 NYS2d 37X [200 lJ). To prove the extent or degree of physical limitation with respect to the "pcnnanent consequential limitation of use of a body organ or member" or "significant limitation of use or a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed [* 3] Haavc v Jean-Louis Index No. 08-37174 Page 3 or there must be a sufficient description of the "qualitative nature" of plaintiff's limitations, with an objective basIs, correlating plaintiff's limitattons to the normal function, purposc and use of the body part (Toure l' Avis Relit A Car ,Systems, fIlC., 98 NY2d 345, 746 NYS2d 865 [2000]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, supm). By way of the verified bill of particulars, thc plaintiff alleges that as a result of this accident he sustaincd injuries consisting of left knee medial meniscal tear and arthritis requiring left knee arthroscopy. shaving of the medial meniscus tear, debridement of arthritis with chondroplasty of the medial femoral condyle: post operative scarring and disfigurement of the left knee area; medial collateral ligaments-spram left knee; bilateral knee pntelln femoral syndrome; herniated disc L5-S I with mass effect of the left S I nerve rool; lumbosacral radiculopathy; lumbosacral spine sprain; lumbosacral neuritis; aggravation and/or exacerbatlon of degenerative disc disease of the lumbar spine; thoracic neuritis; and laceration of thc right scalp area. The plaintiff additionally has claimed to have been confined to bed from December 24, 2006 through May 2008, during which time he was totally incapacitated. In support of motion (004), the defendants have submitted, inter alia, an attorney's affirmation; copies of the pleadings; plaintiffs verified bill of particulars; the reports of A. Robert Tantleff, MD. dllted May 12. 2009 concerning hIS review of the MRI of the plaintiff's left knee dated Septcmber I I, 2007, Edward L. Mills, M.D. conccrning his independent Olthopedic examination of the plamtiff on January 28, 2010, and Charles Hagley, M.D dated January 28, 20tO concerning his independent neurological CXalllll1utlOnf the plaintiff; and the signed and certified transcript of the cxammatlon before trial of Mark o lIaave dated December 3, 2009. Upon review and consideration of the defendants' evidentiary submissions submitted with motion (004), it is detemllncd that the defendants have not established prima facie entitlement to sumlllary judgment dismissing the complaint on the basis that Mark Haave did not sustain a serious injury as defined by Insurance Law § 5102 (d). Neither Dr. Tantleff, Dr. Mills, nor Dr. Bagley have submitted a copy of their curricululll vitae to qualtfy as experts, other than each stating he is licensed to practice medicine in New York. Thc defendants have failed to support this Illation with the medical records and initial test results for the x-ray and MRI studics obtained by the pJaintiffrcIative to his claimed injuries. In fact, Dr. Mills has set forth that there were no medical records available for his review, thus leaving this court to spcculate as to how Dr. Mil1.sreached his impressions and opinions relative to the plaintiffs prior clinical presentations and findings. Dr. Mills further set forth in his report that he would be pleased to review the plamtiff's medical records and adVise whether they affect his opinion which was based upon the examination alonc. Thus, Dr. Mi\l's repOIi ralses factual issues precluding summary judgment. Dr. Tantleffhas offered opinions based upon his review of the MRI of the plaintitl's left knec. but has not submitted a copy of the initial report generated with that study. Thus, this Court is left to speculate as to the contents of the MRI study and report reviewed. Expert testimony is limited to facts in evidence. (see also AI/ell I' UIr,82 AD3d 1025,919 NYS2d 179 {2d Dept 20 11]; Hornbrook v Pe"k Resorts, Inc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 2002]; Marzuillo v b·om, 277 AD2d 362, 716 [* 4] Ilaavc v Jean-Louis Index No. 08-37174 Page 4 NYS2d 98 [2d DCP12000J; Strillgile VRotlllllall, 142 AD2d 637, 530 NYS2d 838 [2d Depl 1988J; O'Shea l' Sarro, 106 AD2d 435, 482 NYS2d 529 [2d Oept 1984]). The general rule in New York is that an expert cannot base an opinion on facts he did not observe and which were not m evidence, and that expert testimony is limited to facts in evidence. (see Allen v Uh, 82 AD3d 1025, 919 NYS2d 179 [2d Dcpt 20 II]; 1fom6mok v Peak Resorts, Inc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 2002]; Marzuillo v 1som, 277 AD2d 362, 716 NYS2d 98 [2d Dept 200D}; Stringile v Rothman, 142 AD2d 637, 530 NYS2d 838 [2d Dcpt 1988J; O'Shea v Sarro, 106 AD2d 435, 482 NYS2d 529 [2d Dept 1984]). Dr. Tantlcff set forth that there is degenerative tearing of the posterior hom of the mcdialmcniscus with an associated paramenlscal cyst indicative of degenerative teaflng; degenerative changes of the anterior horn of the lateral meniscus; and fibroeystic degenerative changes of the medial tibi,ll plateau, however, he docs not indicate the time frame 111 which the opined degeneration occurred. Although he has lound evidence of a recent contuslve change of the medial femoral condyle and medial tibial plateau, he opmed that this new mjury is unassociated with the date of the incident of December 24, 2006, but docs not state the time framc or basis for this finding. Thus, Dr. Tantleffs eonc1usory and unsupported opinions raise factual issues which preclude summary judgment. Dr. MJils set forth in his report that Mr. TTaavestated that initially he sustained injuries to his head, mid-back, low-hack, right knee and left knee, and noted that Mr. Haave underwent left knee arthroscopic surgery 011April 28, 2008. Dr. Mills indicated that Mr. Haave underwent lumbar surgery in 1999, but he does 110tindicate the type of surgery or the level at which such surgery was perfonned. A Ithough Or. MIlls set forth hIS impression that the plamtiff sustained an alleged injury to his thoracic spine, lumbar spine, right knee and left knee, he does not indicate what those injuries were or that they were not causally related to the subject accident. Although Dr. Mills opined that the plaintiff had surgery to his leH knee, he does not rulc out that such surgery was necessitated by an injury sustained in the subject accident. Thus, Dr. Mills' report raises further fachlal issues. Dr. Bagley has set forth that Mr. Haavc had diagnostic testing consisting of x-rays and MRI's of his back ,me!knec, and that he received left knee aJthroscopic surgery on April 28, 2008, and epidural injections to the spine for pain management. However, Dr. Bagley did not review any medical records or the reports of the diagnostic testing to which he referred, leaving this court to speculate as to whether or not a review ofthc plail1tif15 medical rceords from his treating physicians, and the results ofthe diagnostic testing, would have any effect upon his opinion offered without the benefit of such information. Upon examination, Dr. Bagley conducted range of motion testing with the use of a goniometer and compared his findings to the purported nonnal ranges of motion for the lumbar spine, but has omitted any range of motion for the knees. Dr. Bagley set forth that knee nexion~extension strength testing is normal, but he has not set fOl1hthe tindings for range or motion for the same. Although the plaintiff has claimed that he sustained a laceration to his scalp and has scarring and disfigurement of his left knee, no report from a plastic surgeon has been submitted relative thereto (sce Brolt'dame v Call dura, 25 AD3d 747, 807 NYS2d 658 [2d Dept 2006]), raising further factual ISSUe." precluding summary judgment. [* 5] Haave v Jean-Louis Index No. 08-37174 Page 5 It is noted that the defendants' examining phYSIciandid not examine the plaintiff'during the statutory period of I ~Odays followmg the accident, thus rendering the defendants' physician's affidaVit insufficlCnt to demonstrate entitlement to summary judgment on the issue of whether the plaintiff was unable to substantially perform all of the material acts which constituted his usual and customary daily activities for a period In excess of90 days during the 180 days immediately following the accident (Blanchard v Wilcox, 283 JlD2d 82 I, 725 NYS2d 433 [3d Dept 2001]; see Uddin v Cooper, 32 AD3d 270, 820 NYS2d 44 [I st Oep! 2006J; Toussaint v Claudio, 23 AD3d 268, 803 NYS2d 564 [1st Dcrt 2005J), and the experts offer no opinion WIth regard to this category of serious mjury (see Delayhaye v Caledonia Limo & Car Service, Illc., 61 AD3d 814, 877 NYS2d 438 [2d Oept 2009]). Additionally, the plaintiff claimed in the blll of particulars that he was confined to bed from December 24, 2006 through May 2007. He testified at his examination before triallhat atthe time of the accident he was a earpcnter/supervising foreman for Bonnano Construction Corp. After the accident, he tried to return to work the third wcek of January 2007, but was unable to function at his job and had to perform light duty. He also was employed with Pjzzo Brothers at the time oft-he accident, as a shared employee with Bonnano Construction. He had to stop working due to his physical limit<ltion in March 2007, and has not returned to work. Thus, the defendant has t~\iled to demonstrate entitlement to summary Judgment on this category of injury in that thcre are factual issues concerning whether or not he was able to substantially perform his usual and customary duties for a period of ninety days dunng the 180 days immediately following the accident. The factual issues raised in defendants' moving papers preclude summary judgment. The defendants have failed to satisfy the burden of establishing, prima facie, that plaintiff did not sustain a "serious injury" within the meaning ofTnsurance Law 5102 (d) (see Agathe v Tun Chen Wang, 98 NY2d 345, 746 NYS2d 865 [2006]); see also Walters v Papanasta."iou, 3 I AD3d439, 8 I9 NYS2d 48 [2d Dept 20061). Inasmuch as the movmg party has failed to establish prima facie entitlement to judgment as a matter of law in the first instance on the issue of"scrious injury" within the meaning oflnsurance Law § 5102 (d), it is unnecessary to consider whether the opposing papers wcre sufficient to raise a triable issuc of fact (see Yong Deok Lee vSillg", 56 AD3d 662, 867 NYS2d 339 [2d Dept 2008]); Krayn v Torel/a, 40 AD3d 588, 833 NYS2d 406 [2d Dept 2007J; Walker v Vil/oge (~fO.ssining, 18 AD3d 867, 796 NYS2d 658 [2d Dcpt 2005]), as the burden has not shifted to the plaintiff. Accordingly, motion (004) by the defendants, Fritz Jean-Louis, Margaret Jean-Louis, and Mohammed A. Patwary, for summary judgment dismissing the complaint on the basis that the plaintiff did not sustain a serious Illjury as defined by Insurance Law §5102 (d) is denied. TUn1111g cross motion (005) by defendant Adel Mina which seeks summary judgment 111er favor, to h it IS noted that the note of issue and certificate of readiness were filed WIth this court all June 10, 20 II. CPLR 3212(a) provides in pertinent part that a motion [or summary judgment shall bc made no later than aile hundred twenty days after the filing of the Note of Issue, except with leave of court on good cause shown. According to the affidavit of service, cross motion (005) was served on October 21, 20 II by defendant Adcl Mina, more than one hundred twenty days after the Note of Issue was filed. The defendant Adcl Mina has made no application for leave of court on good cause shown to file this cross motion beyond the statutory aile hundred twenty days, and, in fact, has not submitted any rcason for the delay in serving the moving papers (see Brill v City of New York, 2 NY3d 648, 7g I NYS2d 261 [2004]). Thus, motion (005) is deemed untimely. [* 6] Ilaave v Jean-Louis TndexNo. 08-37174 Page 6 AdditIonally, even if motion (005) were timely submitted and considered by this court, it is detcnnmcd that defendant Mina has not demonstrated prima facie enlitlement to summary judgment. Defendant Mina has incorporated by reference all the evidentiary proof, submissions and arguments set forth by the co-defendants in motion (004), which motion was denied due to the failure of the moving defendants to establish prima facle entitlement to summary judgment dismissing the complaint on the basis that the plaintiff did not sustain a serious injury, as set forth above. Thus, it is determined that the application by defendant Mina docs not cst<lblish prima facic entitlement for summary Judgment dismissing the complaint. Accordingly, motion (005) by defendant Mina for summary judgment in her favor IS denied. Tn motion (006) the plaintiff seeks leave to serve a supplemental bill of particulars upon the defendants. The proposed supplemental bill of particulars seeks to supplement items 10 and II: lumbar laminectomy lA, L5, S 1bilaterally; excision herniated disc left L4-5 and left L5-S 1; transforaminallumbar il1terbody fusion L4-5 and L5-S I; broad based left paracentral herniation at 1....5-S encroaching upon the I ventral aspect of the thecal sac; and right lateral L4-5 herniation; item 5: plaintiff was admitted to Huntington Hospital on October 27,20 ( 1through October 31,20 II forthe above refercnced surgery as well as on May 27,2011 for discography at L5-S I; items 14 and 20: that the plaintiff remains totally incapacitated and unable to engage in gamful employment and that by award dated July 13,2009, (Cohen, A.L.J.) plaintifT was granted Social Security Disability benefits effective April 7, 2007. The defendants oppose this application. The Admmistrative Law Judge, in awarding the Social Security Disability benefits to the plaintiff, has set forth findings of fact upon which the award was based, and includes thal the claimant has a past medical history of lumbar back surgery in 1999 related to a motor vehicle accident, with a re-injury to his back in an accident in December 2006. An x-ray of the lumbar spine performed on February 15,2007 suggcsted evidence of a facetectomy or lumbar laminectomy on the right side at the L4-L5 levels. MRI scans of the lumbar spine perfonncd in July 2007 and January 2009 revealed a paracentral herniated disc at L5-S 1 associated with a mass effect on the left S I nerve root, degenerative disc disease, and mild ccntntl stenosis at [A~L5. The Administrative Law Judge accorded significant weight to the opmion of Dr. Lastehcnos, an orthopcdist who treated the claimant on a regular basis since February 2007. It IS determined that the plaintiff seeks to allege continuing consequences of the injuries suffered and previously described in the his previous bill of particulars, rather than assert new and unrelated injuries or a new cause of action. Thus, the proposed supplemental bill of particulars is deemed a supplemcntal bill of particulars (see Maraviglia v Lokshiua, 68 AD3d 1066,890 NYS2d 349 [2d Dept 2009]). In light ofthc dynamics of a matunng inJUry, the supplemental bill of particulars sets forth a sequel lac relative to the claimed lumbar herniated discs as originally pleaded. Leave to supplement a bill ofrarticulars should be freely given (CPLR 3043; Jesselli v City of New York, 59 AD2d 755, 398 NYS2d 701 [2d Dcpt 1977]). I (erc, the proposed supplemental bill of particulars dated December 23, 20 11, was served within thirty days before trial, and the defendants have not demonstrated prejudice (CPLR 3043; Sparkle v McGuire, 81 AD2d XCl 1,442 NYS2d 528l2d Dept 1981]). The defendants were made aware, pursuant to the testlll10ny given by ll1eplaintiff at his examination before trial, that he was unable to work after the accident. [* 7] Haave v Jcan-Louis Index No. 08·37 [74 Page 7 Dr. Mills and Dr. Bagley botb conducted their respective independent examinations of the plaintiff on January n, 20 I0, thus, their independent examinations of the plaintiff preceded the plaintiffs discography of May 2011 and subsequent back surgery in October, 20 II. Accordingly, motion (006) IS granted, and the proposed supplemental bill ofparticuJars is dccmed served nunc pro tunc. The defendants, If so advised, may conduct independent orthopedic and neurological examinations of tile pla11ltiffwithin forty days of the date of this order upon service of a copy of this order with Notice of Entry upon all parties, and upon a minimum of fifteen days notice to the plamtiff of the date of said independent orthopedic and neurological examinations. -~=--- f/~ ~ _~ Dated: April 6. 2012 = J.S.c. FINAL DISPOSITION X NON~FINAL DISPOSITION

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