Delvalle v Reese

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Delvalle v Reese 2012 NY Slip Op 31171(U) April 17, 2012 Supreme Court, Suffolk County Docket Number: 09-31524 Judge: Jeffrey Arlen Spinner 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 Nc. SHORT FORM ORDliR 09-3 1524 SUPREME COURT - STATE OF' NEW J'ORK I.A.S. PART 21 - SUFFOLK COUNTY PRESENT: Hon. JEFFREY ARLEN SPINNER Justice of the Supreme Court MOTION DATE 9-22-1 1 ADJ. DATE 2-8- 12 Mot. Seq. I# 001 - MD LAVELLE & MENECHINO, LLP Attorney for Plaintiff 57 East Main Street Patchogue, New York 11772 LAW OFFICES OF ROBERT P. TUSA Attorney for Defendants 898 Veterans Memorial Highway, Suite 320 Hauppauge, New York 1 1788 Upon the following papers numbered 1 to 32 read on this motion for summaw judgment ;Notice of Motion! Order to Show Cause and supporting papers 1 - 12 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and . . supporting papers 13-24 ; Replying Affidavits and supporting papers 25-28 ; Other 29-32- ; ( )it is, ORDERED that motion (001) by the defendants, April L. Reese and Lillie Reese, pursuant to CPLR 32 12 for summary judgment dismissing the complaint on the basis that the plaintiff did not sustain a serious injury as defined by Insurance Law 5 5102 (d), is denied. In this negligence action, the plaintiff, Krystle A. Delvalle, seeks damages for personal injuries allegedly sustained in an automobile accident on September 1. 2006, on Southern State Parkway and Route 1 1 1 , Suffolk County, New York, when her vehicle was struck in the rear passenger side by a vehicle operated by the defendant, April L. Reese, causing the plaintiff's vehicle to flip over. The proponent of a summary judgment motion must make a prima facie showing of entitlenient to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065,4 16 NYS2d 790 [ 19791). To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Siffmanv Twentieth Century-Fox Film Corporation, 3 NY2d 395, I65 NYS2d 498 [ 19571). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N. Y.U. Medical Cenfer,64 NY2d 85 1, 487 NYS2d 3 16 [ 19851). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Wirzegrad v N. K U. Medical Center, szpru). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to [* 2] Delvalle v Reese Index No. 09-3 1524 Page 2 defeat the motion for summary judgment, must proffer evidence in admissible form.. .and must shovv iy facts sufficient to require a trial of any issue of fact (CPLR 3212[b]; Zuckerman v Ct of New York, 49 NY2d 557,427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being establishcd (Castru v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 19813). Pursuant to Insurance Law 5 5102(d), [s]erious injury means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use ofa 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 ii medical determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person s 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 term significant, as it appears in the statute, has been defined as something more than a minor limitation of 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 curtailment (Licari v 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 facie case of serious injury as defined by Insurance Law 5 5 102(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, 182 AD2d 396,582 NYS2d 395, 396 [l st Dept 19921). Once the defendant has met the burden, the plaintiff must then, by competent proof, establish aprimujacie case that such serious injury exists (DeAngelo v Fidel Curp. Services, Inc., 171 AD2d 588, 567 NJ S2d 454,455 [Ist Dept 1991I). Such proof, in order to be in competent or admissible form, shall consist of affidavits or affirmations (Pagan0 v Kingsbury, 182 AD2d 268,587 NYS2d 692 [2d Dept 1992 I). The proof must be vieweld in a light most favorable to the non-moving party, here the plaintiff (Cammarere v Villanova, 166 AD2d 760,562 NYS2d 808, 8 10 [3d Dept 19901). 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 Inc., 96, NY2d 295, 727 NYS2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the permanent consequential limitation of use of a body organ or meniber or significant limitation of use of a body function or system categories, either a specific percentage of the loss of range of motion must be ascribed or there must be a sufficient description of the qualitative nature of plaintiffs limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpo:je and use of the body part (Toure v Avis RentA Car Systems, Inc., 98 NY2c1345, 746 NYS2d 865 [2000]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, supra). By way of the verified bill of particulars, the plaintiff alleges that as a result of this accident, she sustained injuries consisting of head contusion; post traumatic headaches; cervical disc displacemeint [* 3] Delvalle v Reese Index No. 09-3 1524 Page 3 without myelopathy; cervical brachial syndrome; cervical radiculopathy with spasm; cervical spine sprain and strain; lumbar herniated disc without myelopathy; lumbar nerve root injury; lumbar radiculopathy with spasm; contusion of the lumbosacral spine with nerve root impression; lumbosacral sprain and strain; thoracic spine strain and sprain; tendinitis and contusion of the right shoulder; and tendinitis and contusion of the buttocks. In support of this application, the defendants have submitted, inter alia, an attorney s affirm(ation; copies of the pleadings; plaintiffs verified bill of particulars; the unsigned and uncertified transcript of the examination before trial of Krystle Delvalle dated January 11, 20 11 which is not in admissible form (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 850 NYS2d 201 [2d Dept 20081; McDonald v Maus, 38 AD3d 727, 832 NYS2d 291 [2d Dept 20071; Piha v Flik Intl. Corp., 25 AD3d 772, 808 NYS2d 752 [2d Dept 2006]), is not accompanied by an affidavit or proof of service pursuant to CPLR 3 1 16, and is not considered on this motion; an uncertified copy of plaintiffs Southside Hospital emergency department record; the consultation report of David W. Ratkovici, M.D dated January 12, 2007 concerning his consulting neurological examination of the plaintiff; and the report of Mark J. Zuckerman, M.D. dated March 1, 201 1 concerning his independent neiirological examination of the plaintiff. Upon review and consideration of the defendants evidentiary submissions, it is determined that the defendants have not established prima facie entitlement to summary judgment dismissing the complaint on the basis that Krystle Delvalle did not sustain a serious injury as defined by Insurance Law 5 5102 (d). Dr. Zuckerman has not submitted a copy of his curriculum vitae to qualify as an expert, oth er than stating he is licensed to practice medicine in New York. The defendants have failed to support this motion with the medical records, the independent radiological review of a lumbar MRI s; cervical MRI report of October 6, 2006, inclinometer test results of the lumbar spine dated January 12,2007, range of motion testing dated October 6,2006 and October 13, 2006, nerve conductiodEMG test of the lumbar spine dated December 6,2006, physiatric report of Dr. David Khanan of December 6, 2006, medical reports of Dr. Vicenle and Dr. Perez, relative to the plaintiff s claimed injuries, and which records and reports Dr. Zuckernian reviewed and set forth in his report. Expert testimony is limited to facts in evidence. (see also Alleiz v Uh, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 201 11; Hornbrook vPeak Resorts, Inc. 194 Misc2d 273,754 NYS2d 132 [Sup Ct, Tomkins County 20021; Marzuillo v Isom, 277 AD2d 362, 71 6 NYS2d 98 [2d Dept 20001; Stringde v Rothman, 142 AD2d 637,530 NYS2d 838 [2d Dept 19881; O SJien vsarro, 106 AD2d 435,482 NYS2d 529 [2d Dept 19841). The general rule in New York is that an expert cannot base an opinion on [acts he did not observe and which were not in evidence, and that expert testimony is limited to facts in evidence. (see Allen v Ulz, 82 AD3d 1025,9 19 NYS2d 179 [2d Dept 2 01 11; Hornbrook v Peak Rmorts, Inc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 20021; Mrrrzuiflo v Isom, 277 AD2d 362, 716 NYS2d 98 [2d Dept 20001; Stringile vRothman, 142 AD2d 637, 530 NYS2d 838 [2d Dept 19881; O Slzea v Sarro, 106 AD2d 435,482 NYS2d 529 [2d Dept 19841). [* 4] Delvalle v Reese Index No. 09-3 1524 Page 4 Disc herniation and limited range of motion based on objective findings may constitute evidlence of serious in-jury (Jankuwsky v Smith, 294 AD2d 540; 742 NYS2d 876). Dr. Zuckerman has noted that the plaintifrs testing revealed a bulging cervical disc at the C4-5 level, and a herniated lumbar disc at L5-S 1. In determining range of motion values of the plaintiff T lumbar spine and cervical spine with a goniometer, Dr. Zuckerman compared his findings to the normal range of motion values set forth in a range or spectrum, leaving it to this Court to speculate as to how the variations in the ranges of motion are relative to his findings, and as to the actual value for the range of motion (see Hypolite v International Logistics Management, Inc., 43 AD3d 461, 842 NYS2d 453 [2d Dept 20071; Somers v Macpherson, 40 AD3d 742,836 NYS2d 620 [2d Dept 20071; Browdaine v Candura, 25 AD3d 74 7, 807 NYS2d 658 [2d Dept 20061; see also Rodriguez v Schickler, 229 AD2d 326,645 NYS2d 31 [Ist Dept 19961, lv denied 89 NY2d 810,656 NYS2d 738 [19971). When a normal reading for range of motion testing is provided in terms of a spectrum or range of numbers rather than one definitive number, the actual extent of the limitation is unknown, and the Court is left to speculate (see Sainnoval v Sallick, 78 AD3d 922,923,911 NYS2d 429 [2d Dept 20101; see also Lee v M & MAuto Coach, Ltd., 201 1 NY Slip Op 30667U, 201 1 NY Misc Lexis 113 1 [Sup Ct, Nassau County 201 11). Dr. Zuckerman does not comment upon the results of the nerve ConductiodEMG testing and does not rule out that she did not sustain a radicular injury, although he stated there was no evidence of the same at the time of his examination. Additionally, no evidentiary proof or opinion has been submitted by the defendants concerning the plaintiffs claim with regard to the cervical and lumbar disc bulges and/or herniations, thus, these conditions have not been ruled out as not having been caused by the subject accident. Additionally, Dr. Rabinovici notes in his consultation report that the plaintiff had a bulging cervical disc and a herniated lumbar disc, as evidenced by the IMRI reports of the cervical and lumbosacral spine following the accident. It is noted that the defendants examining physician did not examine the plaintiff during the statutory period of 180 days following the accident, thus rendering the defendants physician s affidavit insufficient to demonstrate entitlement to summary judgment on the issue of whether the plaintiff vias unable to substantially perform all of the material acts which constituted her usual and customary daily activities for a period in excess of 90 days during the 180 days immediately following the accident (Blanchard v Wilcox, 283 AD2d 821,725 NYS2d 433 [3d Dept 20011; see Uddin v Cooper, 32 AD3d 270, 820 NYS2d 44 [lst Dept 20061; Toussaint v Claudio, 23 AD3d 268, 803 NYS2d 564 [lst Deist 2005]), and the experts offer no opinion with regard to this category of serious injury (see Delayhajve v Caledonia Limo & Car Service, Inc., 61 AD3d 814, 877 NYS2d 438 12d Dept 20091). Additionally, the plaintiff testified to the extent that she was unable to work at her uzual job at AHRC as she was unable to lift patients due to the pain following the accident, thus raising factual issue. It is additionally noted that the neurology report by Dr. Rabinovici recommended that she not do any heavy lifting. 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 of Insurance Law 5 102 (d) (see Agatlze v Tun Chen Wang, 98 NY2d 345, 746 NYS2d 865 [20061); see also Walters v Papanastnssiuu, 31 AD3d 439, 819 NYS2,d 48 [2d Dept 20061). Inasmuch as the moving party has failed to establish prima facie entitlement to judgment as a matter of law in the first instance on the issue of serious injury within the meaning of [* 5] Delvalle v Reese Index No. 09-3 1524 Page 5 Insurance Law 4 5 102 (d), it is unnecessary to consider whether the opposing papers were sufficient to raise a triable issue of fact (see Yong Deok Lee v Singh, 56 AD3d 662, 867 NYS2d 339 [2d Dept 20081); Krayn v Torellu, 40 AD3d 588, 833 NYS2d 406 [2d Ilept 20071; Walker v Village ofOssining, 18 AD3d 867,796 NYS2d 658 [2d Dept 20051). Accordingly, motion (001) by the defendants for summary judgment dismissing the complaint on the basis that the plaintiff did not suffer a serious injury as defined by Insurance Law $5102 (d) is denied. Dated: APR 1 7 lo?? ** FINAL DISPOSITION X NON-FINAL 1)ISPOSITION

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