Smith v Andreo

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Smith v Andreo 2012 NY Slip Op 31034(U) April 11, 2012 Supreme Court, Nassau County Docket Number: 13069/10 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 11 6 JUDIlH SMIlH Iaintiff INDE)( NO. 13069/10 -against - liE: 03/05/12 SEQUENCE NO. 001 ManON JOSE J\ND and J\SHLEY J\ND DJ\ Defendants. Notice of Motion J\ffs. & Exs............ "'" "'" J\ffirmation in Opposition & E eply J\ffirmation''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''................... Upon the foregoing papers , it is ordered that the motion by defendants , Joseph J\ndreo J\ndreo for summar judgment , pursuant to C and J\shley 93212 , on the grounds that the plaintiff did not sustain a serious injury within the meaning of New York State Insurance Law 951 02( d), is denied. lIhis is an action for personal injuries aIlegedly sustained by plaintiff Judith Smith in an automobile accident which occurred on May 10 , 2010 on ockaway arkway at or near Morris arkway in Nassau County, New York. Movants contend that plaintiff's injuries fail to meet the " Insurance Law 51 02( d). In serious injury " requirements of support of their motion , Movants submit the plaintiff's verified bil of particulars , plaintiff's deposition transcript , plaintiff's emergency room records , an examination report of orthopedic surgeon Michael J. Katz , M. , and radiology reports of Melissa Sapan Cohn , M. 110 begin , Movants contend that plaintiff testified at her deposition that she left the scene of the accident with the tow truck driver. Plaintiff testified that two days after the accident evening ofMay12 , 2010 at 9:00 p. , in the , she drove herself to the emergency room of New Island [* 2] Hospita complaining of back pain and abdominal pain. She Was discharged trom the room after a few hour. Two days later AmatuJli. At tht trtment trom emergency , plaintiff sought tratment with a chiropractor, Dr. time , she complained of back pain and shoulder pain. She also sought a Dr. Parker on two occasions. Movants contend that plaintiJftestified that she was working pe diem as a nUrse for New Island Hospital and was also working three nights a week as a nurse for Medford MultiCar. Plaintiff testified that she did not miss any time tram work as a result of the accident. Movants submit the report of Dr. Michael J. Katz , a board certified orthopedic surgeon. Dr. Katz examined the plaintiff at defendant' s request on J\ugust 201 a goniometer and quantified and comparative range of motion tests upon the plaintiff ,usingI. Dr. Katz performed reportd that plaintiff had nonnal ranges of motion in her cervical spine , lumbosacra spine shoulder , and left elbow. Dr. Katz reported that plaintiff showed no signs or symptoms of , right permanence relative to the musculoskeletal system and relative to the accident of May 10 He also opined that she is not fuII , 20 10. curently disabled. Dr. Katz opined that plainti ff is capable time work duty as a registered nurse without restrictions and that she is capable of her of her activities of daily living and pre- loss activities. Movants also submit the radiology report of Dr. Melissa Sapan Cohn , who plaintiff's cervical spine M~I and lumbar spine M~I. With respect to plaintiff's reviewed cervical spine M~I , Dr. Cohn opined that plaintiff had disc desiccation and osteophytes , which she describes as degenerative findings. She reports that plaintiff had " mild multilevel degenerative changes " and that the disc desiccation at C2- 3 through C6- 7 showed the commencement of degenerative disc disease. She opined that the bone spur formation at C4- osteop ytes. e\ e is u 5 and the formation of osteophytes indicated that the condition is chronic in nature as it takes years to develop bone spurs and She o O ned that the disc herniation seen at the C5- 6 level is associated with si nificant underlying degenerative changes. With respect to plaintiff's lumbar spme Cohn found that p amtl L5- , Dr. disc desiccation at the L5- S1 level and that the disc bulgmg at the nre!ated to trauma and IS Wit 1m t le spec of de enerative dise disease. d f Movants funhcr contend that the emergency room recor s rom new Island HospIta rom d' J h May 13 2010 indiC.te that ba:-ed upon dIe atten mg p sician s clinical findmgs , he found no ''' ", :, . [* 3] medical necessity to send the plaintiff for x-rays and diagnosed her with a shoulder sprain , airbag contact injury, and abdominal trauma, J\ccordingly, contrary to plaintiff's contentions , Movants have demonstrated a prima facie showing of entitlement to summary judgment on the grounds that plaintiff's alleged injuries do not meet the serious injury threshold of Insurance Law The proponent of a must make a prima facie showing of entitlement to judgment as a ~51 02( d). summary judgment motion " matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v. Prospect Hasp., 68 N. Y.2d 320 (J 986)). 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 suffcient to establish the existence of material issues ofa fact which require a trial of the action. (Zuckerman v. City of New York N. Y.2d 557 (1980)). , 49 In opposition , plaintiff submits the sworn reports of her treating chiropractor Frank V. J\matuIIi , D. C. Dr. J\matulli performed range of motion testing upon the plaintiff for the first time four days after the accident , on May 14 , 20 I O. On May 14 , 2010 , Dr. J\matulli found that plaintiff had sustained decreased range of motion in her cervical and lumbar spines. He found that plaintiff had a 40% loss of range of motion in her cervical spine and a 30% loss of range of motion in her lumbar spine. Dr. J\matulli also conducted range of motion testing on September 2010 , Januar 19 2011 and January 7 , 2012 , which similarly showed losses of ranges of motion in plaintiff's cervical and lumbar spines. her latest examination by Dr. J\matulli on Dr. J\matulli found that plaintiff had a 31 % loss of range of motion of her cervical spine , a 57% loss of range of motion of her lumbar spine , and a final whole person impairment of23%. J\dditionalIy, plaintiff consistently made complaints to Dr. J\matulli of neck J\t Januar 7 , 2012 , pain radiating to her right arm , lower back pain radiating to her right leg, right shoulder pain , and elbow pain. In his affidavit of February 1. 2012 , Dr. AmatuIli attests that plaintiffs disc pathology was caused by the motor vehicle ace i dent of !\1 ay 10 , 2010 , and he opines that the losses in range of mot lC cen' I' t e plJJLL . also am: ) t at p !1frs iniune ","" ' and lun;bar spine represent a permanent loss of function. He have resulted in restriction of the use and activity of the [* 4] injured areas of plaintiff's spine and " limitations to the full range of motion of the spine from what is considered normal , resulting in definite , severe , and permanent injury. " He opines that plaintiff has suffered a pennanent injury to the cervical spine , lumbar spine , right shoulder and left elbow causally related to the accident. ~laintiff has produced evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of this action. 250 AD.2d 483 672 N. YS.2d 869 (pt Dept. 1998); 56 (1S! Dept. 2004)). ')ee , Adetunji v. U- Haul Brown v. Achy, 9 AD. 3d 30 776 N. Y.S. lIhe sworn reports of Dr. J\matulli demonstrate objective evidence of the physical limitations in plaintiff's cervical and lumbar spines resulting from the within accident and warrant the denial of the defendants ' motion. Authority, (See, Kearse v. New York City Transit 15 AD. 3d 45 (2d Dept. 2005)). In addition , while the Court of J\ppeals has held that submission of a doctor s report bearing contemporaneous numerical measurements of plaintiff's ranges of motion is not required to defeat a motion for summary judgment on threshold grounds plaintiff's submission of Dr. J\matulI' s reports demonstrates significant limitations contemporaneous with the accident sufficient to establish a causal relationship between the accident and the injuries alleged. (See, Perl v. Meher 18 N. Y.3d 208 960 N. J\ccordingly, defendants ' motion for summary judgment is denied. 2d 424 (201 1)). If there is any doubt , or if a material issue of fact is arguable , summary judgment should be denied. (Celardo v. Bell 222 AD, 2d 547 , 635 N. YS.2d 85 (2d Dept. 1995); Museums at Stony Brook v. Vilage ofPatchogue Fire Dept. 146 AD.2d 572 , 536 N. Y.S. 2d 177 as to the existence of a triable issue of fact (2d Dept. 1989)). Dated: J\prill1 , Cc: 2012 Falk & Klebanoff, P. 392 Woodfield Road West Hempstead , NY I J 552 Richard 1' Lau & Associates O. Box 9040 300 Jericho Quadrangle East , Suite 260A Jericho , NY ! J 753- 9040 ENTERED AP 13 NASSAU COON" . i COUNTY CLERK' OFfiCE

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