Smith v Andreo
2012 NY Slip Op 31034(U)
April 11, 2012
Supreme Court, Nassau County
Docket Number: 13069/10
Judge: Anthony L. Parga
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SHORT FORM ORDER
SUPREME COURT- NEW YORK STATE- NASSAU COUNTY
HON. ANTHONY L. PARGA
INDE)( NO. 13069/10
SEQUENCE NO. 001
and J\SHLEY J\ND
Notice of Motion
& Exs............ "'" "'"
J\ffirmation in Opposition & E
Upon the foregoing papers , it is ordered that the motion by defendants
, Joseph J\ndreo
J\ndreo for summar judgment , pursuant to C
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
lIhis is an action for personal injuries aIlegedly sustained by plaintiff Judith Smith in an
automobile accident which occurred on May 10
, 2010 on
arkway at or near Morris
arkway in Nassau County, New York.
Movants contend that plaintiff's injuries fail to meet the "
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
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
Hospita complaining of back
pain and abdominal pain. She Was discharged trom the
room after a few hour. Two days later
AmatuJli. At tht
, plaintiff sought tratment
with a chiropractor, Dr.
, 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
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
, 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-
Movants also submit the radiology report of Dr. Melissa Sapan Cohn
plaintiff's cervical spine M~I and lumbar spine M~I. With respect to plaintiff's reviewed
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-
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
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
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.
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
s clinical findmgs , he found no
medical necessity to send the plaintiff for x-rays and diagnosed her with a shoulder sprain
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
(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)).
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
Januar 7 , 2012 ,
pain radiating to her right arm , lower back pain radiating to her right leg, right shoulder 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
I' t e plJJLL .
) 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
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
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
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
(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
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 ,
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
COUNTY CLERK' OFfiCE