Vaccaro v Schonholz
2012 NY Slip Op 31070(U)
April 10, 2012
Supreme Court, Suffolk County
Docket Number: 09-44675
Judge: John J.J. Jones Jr
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SIIORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
lAS. PART 10 - SUFFOLK COUNTY
JOHN .I.J. JONES, JR.
MOTION DATE 7-14-11
Mot. Scq. # 003 - MD
Justice of the Supreme Court
- against -
JOYCE M. SCHONHOLZ,
GENSER DUBOW GENSER & CONA, LLP
Attorney for Plainti ff
445 Broad hollow Road, Suite 19
Melville, New York 11747
MARTYN, TOHER & MARTYN, ESQS.
Attorney for Defendant
330 Old Country Road., Suite 211
Mineola, New York 11501
Upon the following papers numbered 1 to
19 read on this motion for summary judgment; Notice of Motion! Order
to Show Cause and supporting papers
1 - 9 ; Notice of Cross Motion and supponing papers __
; Answering Affidavits and
supponing papers 10 - 17 ; Replying Affidavits and supporting papers 18 - 19 ; Othcr_;
(and aftel healing c<'>mIsci !uppotl
and dpp<,>!edto lhe motion) it is,
ORDERED that this motion by defendant for an order pursuant to CPLR 3212 granting summary
judgment in hcr favor dismissing the complaint on the ground that pJaintiffdid not sustain a "serious
injury" as defined in Insurance Law § 5102 (d) is denied.
This is an action to recover damages for injuries allegedly sustained by plaintiff on October 18,
2008 when the driver's side of her vehicle was stntck by the front of defendant's vehicle. The accident
occurred on Locust Avenue at or near its intersection with Ocean Avenue in Suffolk County, New York.
By her bill of particulars, plaintiff alleges that as a result of the subject accident she sustained serious
injuries including full thickness tearing of the anterior edge of the supraspinatus tendon of the left shoulder;
90 percent tear of the biceps tendon of the left shoulder requiring an arthroscopic procedure on October 22,
2009; rotator cuff tear of the left shoulder; herniated disc at C4-C5; and bulging discs at C5-C6 and C6-C7.
On the date of the accident, plaintiff was treated at and then released from the emergency room of
Southside Hospital. She underwent ambulatory surgery on her left shoulder one year later on October 22,
2009 and was thereafter incapacitated from her employment as a senior typist confidential for the Sayville
School District until November 2,2009.
In her bill of particulars, plaintiff alleges that as a result of said accident she sustained injunes under
the following categories of serious injury pursuant to Insurance Law § 5102 (d): permanent consequential
limitation of use of a body organ or member; significant limitation of use of a body function or system; or a
medically detcmlined non-permanent injury or impainnent that prevents the performance of substantially
Vaccaro v Schonholz
Index No. 09-44675
all of the material acts ofplallltiffs usual and customary daIly actwities for not less than ninety days during
the one hundred eighty days immediately following the accldent.
Defendant now moves [or summary judgment dismissing the complaint on the ground that plaintiff
did not sustain a "serious injury" as defined in Insurance Law § 5102 (d). In support of the motion,
defendant submits the pleadings, plaintiffs bill of particulars and her supplemental bill of particulars,
plaintiffs deposition transcript, and the affinncd rcp0l1s of her examining orthopedic surgeon and
Insunlnce Law § 5102 (d) defines "serious injury" as "a personal injury which results in death;
dismemberment; significant disfigurement; a fracture; loss of a feLus;pCI111anentass of Llseof a body organ,
member, function or system; permanent consequential limitation of use of a body organ or member; significant
limitation of use of a body function or system; or a medically detennined injury or impainnent of a
non-pemlancnt nature which prevents the injured person from perfonning substantially all of the material acts
which constitute such person '5 usual and customary daily activities for not less than ninety days during the one
hundred eighty days immediately following the occurrence of the mjury or impaimlent" (see Insurance Law §
In order to recover under the "pennanent loss of use" category, plaintiff must demonstrate a total loss
of use of a body organ, member, function or system (Obedy 1J Bangs Ambulance Illc., 96 NY2d 295, 727
NYS2d 378 (2001]). To prove the extent or degree of physical limitation with respect to the "pellnanent
consequential limitation of use of a body organ or member" or "significant limitation of use of a body
fWIction or system" categories, either objective evidence of the extent, pcrcentage or dcgree of the limitation or
loss of range of motion and its duration based on a recent examination of plaintiff must be provided or there
must be a sufTicient description ofthc "qualitative nature" of plaintiffs limitations, with an objective basis.
cOlTclating plaintiffs limitations to the nOn1mlfunction, purpose and use of the body pari (see, Tow'e v Avis
Rem A Car Systems, IIIC., 98 NY2d 345, 746 NYS2d 865 [2000J; Mejia v DeRose, 35 AD3d 407, 825
NYS2d 722 [2d Dcp! 2006]).
On a motion for summary judgment, the defendant has the initial burdcn of making a prima facie
showing, through the submission of cvidence in admissible fonn, that the injured plaintiff did not sustain a
"serious injury" within the meaning oflnsurance Law § 5102 (d) (see Gaddy v Eyler, 79 NY2d 955, 582
NYS2d 990 ; Akhtar.' Saalos, 57 AD3d 593, 869 NYS2d 220 [2d Dept 2008]). The defendant may
satisfy thiS burden by submitting the plaintiffs own deposition testimony and the affinned medical report
of the defendant's own cxamining physician (see Moore v Edisoll, 2S AD3d 672, 811 NYS2d 724 f2d Dept
2006]; Farozes v Kalltrtlll, 22 AD3d 458, 802 NYS2d 706 [2d Dcpt 20(51).
Plnintirfs deposition testimony from August I t, 2010 reveals thaI her vehicle was sImek on the
driver's side passenger door and rear panel, that the left side of her body struck the left sidc of her vehicle's
interior, that her driver's side air bag deployed, and that she complained of neck and left shoulder pain at
the scene of the accident and at the emergency room. In addition, plaintiffs testimony indicates that she
bcgan seeing her trealll1g orthopedic surgeon, Dr. Cappelli no, a few days after the accident, that she
continues to see him every six to eight weeks, and that she continues to receive physical therapy for her left
shoulder. Plaintiff explained that her trcating orthopediC surgeon recommended physical therapy during the
first visit, that she underwent physical therapy for six months for the pain and tingling in her left shoulder
Vaccaro v Schonholz
Index No. 09-44675
and arm, and that when she obtained no relief from therapy she decided to undergo arthroscopic surgery.
According to plaintiff, the last time that she felt tingling in her left arm was in the spring of2009 and
following surgery the pam has decreased but the range of motion of her left shoulder is still restncted.
Plaintiff stated that prior to the subject accident she had not mjured her neck or shoulder nor did she reinjure her neck or shoulder aileI' the accident. She also testified that she cannot lift objects fi'Ollla h1gb
shelf, or do exercises that require the raising of her arms, or play teBms, and that it is more difficult for her
to clean her house, open a heavy car door, put her arm through shirt sleeves, or fix her halr.
Defendant's examining orthopedic surgeon, M1chael J. Katz, M.D. (Dr. Katz), lllclicatcs in his
affirmed report dated September 21, 2010 that he exam1l1ed plaintiff on said date and perfonned range of
Illation testing usmg a goniometer. His examination results of plaintiff's cervical spll1e, lumbar spine, and
left shoulder reveal full range of motion testing results as compared with nOn11alfindings (see Stuff v
Yshua, 59 AD3d 614, 614, 874 NYS2d 180 [2d Dept 2009]). Dr. Katz notes with respect to plaintiffs left
shoulder that there are well healed arthroscopic portals, that there is no crepitation at the AC joint, that there
is no defonnity about the clavicle or AC joint, and that there is no dislocation, clicking or grating with
movement. He also provides negative results for the apprehension test, O'Brien's test, and Hawkin's
Kennedy test (see id). Dr. Katz also mentions that there ISno tendemess about' the cervical spine and no
paravertebral muscle spasm. He diagnoses plaintiff with cervical strain with pre-existing degenerative
changcs that have resolved, status post arthroscopy of the left shoulder which was successful, and lumbar
stram as per the bill of particulars, also resolved. In concluding his repOli, Dr. Katz opines that pbintiff
currently shows no signs or symptoms of penl1anence relative to her neck, that she has had an excellent
surgleal outcome with respect to her left shoulder, and that she is currently not disabled. According to Dr.
Katz, plaintiff is capable of gainful employment as administrative assistant without restrictions. Dr. Katz
notes thM the MRI reports of plaintiffs cervical spme and lcit shoulder indicate degeneratIVe changes
which are confirmed by the reviews of defendant's examining radiologIst, Dr. Tantleff. Dr. Katz further
opines that based on the history provided and the records reviewed, the mechanism of in]ury is consistent
with the injury to the neck and left shoulder but that injury to the back is not reflected in the records.
The affinned reports dated September 13, 2010 of defendant's examining radIologist, A. Robert
Tantlcff, M.D. (Dr. Tantleff), indicate that he reviewed the MRI of plaintiffs cervical spine as well as the
MRI of plaintiffs left shoulder. In a detailed report, Dr. Tantleffindicates that plaintiffs cervical spme
MRI reveals longstanding chronic degenerative discogenic disc disease and ccrvicothoracie spondylosis.
He notes that there is no evidence of recent trauma or annular edema of any of the outermost annuli to
suggest a recent hermation or recent acute exacerbation. He also notes that there is no evidence of posterior
endplate fi'actures of the opposing disco vertebral endplates to suggest whiplash or trauma. Dr. Tantleff
opines that the findll1gs arc consIstent wlth plaintiffs age and are not causally rclated to the date of the
subject accident as they arc chronic longstanding processes reqUJring years to develop as presented and arc
consistent with the wear and tear of the normal aging process. Regarding the MRI ofplaintifPs left
shoulder, Dr. Tantleff found age related wear and tear degenerati \ie overuse changes that are conSIstent with
plaintiffs age and not the result of a single trnumatic event. He notes that there ISdegenerative tendmosis
of the supraspinatus tendon \vith a prominent anterolateral fraying and "shredded wheat" appearance of the
supraspinatus tendon consistent with underlying chronic degenerative teanng of the supraspinatus. He
indicates that there ISno evidence of full thickness tear or retractlOn.
Here, defendant submitted competent medical evidence establishmg, prima facIC, that plaintiff's
Vaccaro v Schonholz
index No. 09-44675
Page No_ 4
alleged lllJuries to her spine and left shoulder did not constJtute serious Il1juries withlIl the I11CanlIlg f
Insurance Law 0 5102 (d) (see Torres v Ozet, _ NYS2d
,2012 NY Slip Op 01241 [2d Dcpt 2012])
and, in any event, were not caused by the subject accident (see Hal! v Hecht, - NYS2d - ,2012 NY
Slip Op 01210 [2d Dept 2012J; Ji/alli v Palmer, 83 AD3d 786, 920 NYS2d 424 [2d Dept 2011]).
Defendant also demonstrated that plaintiffs alleged injuries did not prevent her from performing
substantially all of the material acts constitutmg her customary daily activities dunng at least 90 of the first
180 days following the accident (see DUl/bar v Pra!Jovo Taxi, lI1C., 84 AD3c1862, 921 NYS2d 9 I 1 l2d
Dept 20 II]).
The burden then shifted to plaintiff to sho\\', by admissible evidentiary proat~ the existence of a
triable issue of fact (see Marietta 11 See/zo, 29 AD3d 539, 815 NYS2d 137 [2d Dept 2006]).
In opposition to the motion, plaintiff contends that she did sustain a "serious injury" as defined in
Insurance Law ~ 5102 (d) inasmuch as prior to the subject accident she had no problems with her neck and
left shoulder and sought no treatment for her neck and left shoulder. In support of her opposition, plaintiff
submits her affidavit, the uncertificd police accident repOli, her unccrtified records fi:om the cmergency
room of Southside Hospital, the unswom MRI report of plaintiffs cervical spine, the unswom MRl repOli
of her left shoulder, the unswom report of her operation on October 22, 2009, and the affirmed report dated
October 19, 2011 of her surgeon, Anthony Cappellino, M.D.
In reply, defendant argues that the majority of the plaintiffs submissions are in inadmissible fornl
and cannot be considered and that the affirmed report of Dr. Cappcllino lmpennissibly relies on the
unswom records and reports of other physicians. Defendant's other arguments include the lack of
admissible contemporaneous range of motion testing results for plaintiff.
In opposition to the motion, plaintiff submitted competent medical evidence raising a triable Issue of
f~lctas to whether the alleged injuries to her left shoulder constituted a serious injury under the pennanent
consequential limitaLion of use and/or significant Iinlltation of use categories of Insurance Law !i 5102 (d)
(see Perl v Melter, 18 NY3d 208,936 NYS2d 655 ; Klielle v All Is. Truck aud Leasing, _ NYS2d
___ ,2012 NY Slip Op 01214 [2d Dept 2012]; Kyoung YUII Kim v Emkay Illc. Trust, 91 AD3d 830, 936
NYS2d 674l2d Dept 2012]). Plaintiffrehed on, among other things, the affimlcd report dated October 19,
2011 of her treating orthopedic surgeon, Dr. Cappellino. Notably, and 111 ontradIction afthe MRI findings
of Dr. Tantleff, Dr. Cappellino stated in said report that while perfOlTI1mgplaintiffs surgery on October 22,
2009 he found full thickness tearing of the anterior aspect of the supraspinatus tendon for which he
perfonlled arthroscopic repair. In addition, Dr. Cappellino stated that the neck pathology noted and
plaIntiffs complaints, speci fically dISChermation, as well as the left shoulder injury arc all the result of and
are causally related to the subject accident. He indicated that pnor to the subject accident, plainti ff did not
have any problems with her neck or shoulder and that she never sought treatment 01" any type for either of
these regions. Dr. Cappellino noted that the MR.I ol"the cervical spine showed spasm, which would l11dicate
underlying pathology, specifically as a result of the subject accident. Hc added that there was a tearing of
the bIceps which is uncommon in a patient ofplall1tiffs age of 44 without marked impingement
phenomena. 1\lso in contradiction to Dr. Tantleff's findings upon MRI review, Dr. Cappelhno st3ted that Ul
the time of surgery there was an obvious anterior edge rent tear which was not non-retracted and can be
missed on an MR!. Dr. Cappelli no concluded that although plaintiff has attained a good fUllctional
outcome with regard to her left shoulder, some issues persist which are permanent 111
nature and are a result
Vaccaro v Schonholz
[ndex No. 09-44675
of both the injury and the subsequent surgery required to appropriately treat the injury. According to Dr.
Cappellino, plamtiffhas some restrictions in range of motion, which he provided indicating that he used a
goniometer and the opposite ann for comparison, and restricted maneuvers which impact plaintiffs
activities of daily living and said issues are pemlancnt. The contents of said report are sufficient to rebut
defendant's prima facie showing and. thus, raise a triable issue of fact (see Jiloni II Palmer, supra).
Contrary to the assertions of defendant in reply, Dr. Cappellino relied on his own personal observations
during surgery, not the unsworn reports, in rendering his own affinned report. Also contemporaneous
range of motion testl11gresults are not a prerequisite to recovery (see Perl v Meller, supra).
Accordingly, the instant motion is denied.