Guiteau v Hurst

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Guiteau v Hurst 2012 NY Slip Op 31226(U) May 10, 2012 Supreme Court, Suffolk County Docket Number: 10-24258 Judge: Peter H. Mayer 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. SUPREME COURT I.A.S. PART 17 - 10-24258 1 1-0 1746MV STATE OF NEW YORK SUFFOLK C0UN -Y PRESENT: 11011. PETER H. MAYER Justice of the Supreme Court MOTION DATE 10-2 1- 1 1 2-14-12 AIIJ. DATE Mot. Seq. k 002 - MD LAW OFFICE OF CARL P. MALTESE, ESQ. A torney for Plaintiffs 1 1Ci50 West Jericho Turnpike Smithtown, New York 11787 - against - EVANGELINE HURST, RlJSSO, APOZNANSKI & TAMBASCO A1torney for Defendant 87 5 Merric k Avenue Westbury, New York 11590 Upon the reading and filing of the followiiig papers in this matter: (1) Notice of MotioidOrder to Show Cause .by the defendant, dated Septeiiiber 23, 201 1, and supporting papers 1-1 1 (including Meniorznduni of Law dated -); (2) Notice of Cross Motion by the , dated , supporting papers; (3) Affirniation in Opposition by the plaintiffs, dated January 31, 2012, and supporting papers 12 -17; (4) Reply Affirniatioii by the defendant, dated February 6, 2012, and supporting papers 18 - 10; ( 5 ) Other -(~ nxd-tc&&); and now UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is ORDERED that the motion by defendant for an order pursuant to CPLR 32 12 granting suil-iniary judgment in her favor on the ground that plaintiffs did not sustain a serious iiijury as defined in Insurance Law 4 5 102 (d) as a result of the subject accident is denied. This is an action to recover damages for injuries allegedly sustaiiied by plaintiffs on June 7,2009 at approximately 4 p.ni. when the vehicle owned by plaintiff Yves Guiteau and operated by plaintiff Mike Guiteau, i n which plaintiff Yves Guiteau was a front seat passenger, was struck in the rear by a vehicle owned and operated by defendant, Evangeline Hurst. The accident occ;urred on Lakeland Avenue in the Town of Sayville, Suffolk County, New York. At the time of the accident, plaintiff Mike Guiteau was 18 years old and plaintiff Yves Guiteau was 52 years old. [* 2] Guiteau v Hurst Index No. 10-24258 Page No. 2 By their bill of particulars, plaintiffs allege that as a result of said accident plaintiff Mike Guiteau sustained serious iiijuries including a disc herniation at T4-T5, niyofascial pain syndrome in the lower back, and right and left knee contusion sprains, aiid that plaintiff Yves Guiteau sustained serious iiijuries iiicli-idirig C3-4 aiid C4-5 disc protrusions with encroachment upon subar: clinoid space. In addition, plaintiffs allege that plaintiff Mike Guiteau and plaintiff Yves Guiteau were confined to bed for oiie day, and that plaintiff Mike Guiteau was confined to hoine for six weeks and plaintiff r ves Guiteau was confined to home for oiie day. Plaintiffs claim that plaintiff Mike Guiteau was not a student and m as not employed at the time of the accident and that plaintiff Yves Guiteau did not miss any tin-e from his employment as a result of the accident. Both plaintiffs seek to recover economic loss in excess of basic economic loss as defined in liisurance Law 9 5102 (a). Plaintiffs also claim that as a result of said accident they sustained injuries under the following categories of serious injury pursuant to Insurance Law 4 5 102 (d): permanent consequential limitation of use of a body organ or member; significant limitation of use of a body fimction or system; or a medically detemiined non-permanent injury or impairment that prevents the performance of substantially all of the material acts of plaintiffs usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the accident. Defendant now moves for summaryjudgment dismissing the con-,plainton the ground that plaintiffs did not sustain a serious injury as defined in Lnsurance Law ij 5 102 (d) as a result of the subject accident. Defendant s submissions in support of the motion include, the pleadings, plaintiffs bill of particulars, plaintiffs deposition transcripts, and the affirmed reports of defendant s exaniiiiiiig orthopedic surgeon, Ragliava R. Polavarapu, M.D., based on his examinations of plaintiffs cm July 12, 201 1. Insurance Law $ 5102 (d) defines serious injury as a personal injuiy which results in death; dismemberment; significant disfigurement; a fracture; loss of a fi:tus; pemianent loss of use of a body organ, member, function or system; permanent consequential limitation of use of E body organ or member; significant limitation of use of a body function or system; or a medically determined injury or inipaiiinent of a non-permanent nature whicli 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 inmcdiately following the occurrence of the injury or impainnent (see Insurance Law 4 5102 [d]). In order to recover under the pelinanent loss of use category, plaintiff niust demonstrate a total loss of use of a body organ, member, function or system (Oberly v tlaiigs Aiizbiilaizce Iiic., 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 o f a body organ or member or si:;nificant limitation of use ofa body function or system categories, either objective evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration based on a recent examination oEplaintifl rnust be provided or there n u s t be a sufiicicient description of the qualitative nature of plaintiffs limitations, with an objective basis, correlating plaintiff s limitations to the nonnal function, purpose and use of lie body part (see, Toiire v Avis Reizt , Car 4 Systems, Iirc., 98 NY2d 345, 746 NYS2d 365 [2000]; Mejia v LkRose, 25 AD3d 407, 325 NYS2d 722 [2d D cpt 2 0061) . On a motion for suniinary judgment, the defendant has the initial burden of making a prima facie [* 3] Guiteau \. Hurst Index No. 10-24258 Page No. 3 showing, through the submission of evidence in admissible forri. that th? iiijured plaintiff did not sustain a serious injuiy within the meaning of Iiisuraiice Law $ 5102 (d) (see Gaddy v Eyler, 79 NY2d 955. 582 NYS2d 990 [l992]; Aklitur v Suiztos, 57 AD3d 593, 869 NYS2d 220 [2d Dept 20081). The defendant iiiay satisfy this burden by submitting the plaintiffs own deposition testimony and the affirmed medical report of the defendant s own examining physician (see Moore v Edisoii. 25 AD3d 672, 811 NYS2d 724 [2d Dept 20063; Furozes v Kaiizruii, 22 AD3d 458, 802 NYS2d 706 [2d Dept 20051). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see I.l/iliegrudvNew Yovk Uitiv. Med. Ctr,, 64 NY2d 85 1, 853,487 NYS2d 3 16 [1985]; Booiie vNew York City Truiis. Aiitli., 263 AD2d 463, 692 NYS2d 731 [2d Dept 19991). The deposition testimony ofplaintiff Mike Guiteau on June 13, 201 1 reveals that at the time ofthe accident he was operating his father s pick-up truck, that the impact to :he rear of the vehicle was a hard tap, and that a few hours after the accident his neck began to hurt and the following day his mid-back aiid lower back began to hurt. He testified that he first sought medical attention the day after the accident from Dr. Trimboli, a chiropractor, upon observing his sign near plaintiffs home. Plaintiff Mike Guiteaii also testified that lie saw a spine specialist, Dr. Alongi, that he was referred to a pain management specialist, Dr. Kahn, by his attorney, and that his father referred him to another doctor, Dr. Tzou. He stated that he received three injections to his lower back from Dr. Kahn. Plainiff explained that at the time ofthe accident he was not attending school and was not working but was actiLrely looking for employment. When asked if there was anything that he could no longer do as a result of the accident, plaintiff Mike Guiteau replied that he could no longer play basketball, sheetrock around the house, and play and give piggy-back rides to his brother and sister. He stated that he had no restricticm perfclrming household chores but had restrictions working on his car and changing its oil. Plaintifi Mike Chiteau also stated that other than adjustments, the chiropractor did nothing else for him, and that he was scheduled for an epidural injection by Dr. Tzou. Plaintiff Mike Guiteau added that he currently felt pain ir his mid to lower back. Plaintiff Yves Guiteau testified at liis deposition on June 13,2011 that at the time of the accident his son was driving his pick-up truck and that he was a passenger. In addition, he testified that followiiig the impact his body did not make contact with the interior of the vehicle. Plaintiff Yves Guiteau stated that he first felt pain, in his iieck and right shoulder, at around 8 p.m that evening, and a few days later sought medical attention for said injuries from Dr. Trimboli. He inforiled that he saw Dr. Trimboli three times a week for a few months, then his visits decreased to twice a week, and that his treatment ended in November or December of 201 0. Plaintiff Yves Guiteau indicated that he saw Dr. Alongi probably a month after the accident, aiid had an MRI of his neck and shoulder. Plaintiff did not seek treatment of his neck and shoulder with any other medical professionals. When asked what activi .ies he could no longer do, plaintiff replied that he could no longer sheetrock or spackle and that he did not play soccer and basketball with his chiklren, which he used to do usually twice a week. Plaintiff further testified ihat lie had no upcoming medical appointments sched tiled. Defendant s exanlining orthopedic surgeon, Raghava R. Polavarapu, M.D. (Dr. Polavarapu), indicated by affirmed report dated July 12,201 1that he examined plaintiff Mike Guiteau on that date, and that plaintiffs current complaints consisted of pain in the mid-xxk and in the lower back radiating to the lower extremities. He listed records submitted to him which included arcport dated June 10,2009by David E. Triinboli, D.C. and an MRI report dated July23, 2009 of the ihoracic spine. Dr. Polavarapu reported liis [* 4] Guiteau v Hurst Index No. 10-2425s Page No. 3 range of motion testing results. With respect to plaintiffs cervical spine, he reported that plaintiff complained of minimal tendeliless to palpation of the cervical paraspinal musculature, but that 110 muscle spasm was noted, and the following results, flexion to 45 degees (45 degrees normal), extension to 40 degrees (45 degrees normal), right rotation to 70 degrees (70 dey-ees normal), left rotation to 70 degrees (70 degrees normal), right lateral flexion to 45 degrees (45 degrees normal), and left lateral flexion to 45 d q r e e s (45 degrees normal). Regarding plaintiffs thoracic spine, he h u n d tha: there was no paraspinal spasm or tenderness, that lateral bending on the right and left was normal, and that rotation to the right and left was nornial. With respect to plaintiffs lumbar spine, Dr. Polavarapu noted minimal tenderness over the paraspinal musculature on palpation but found no spasms and reported flexion 80 degrees (90 degrees normal), extension 25 degrees (30 degrees normal), and right and left lateral bending 30 degrees (30 degrees normal). He conducted a neurological examination of plaintiffs cervical spine and lumbar spine that produced nomial results. As for plaintiffs right and left knees.,Dr. Polavarapu reported that there was no tenderness to palpation over the anterior, medial or lateral aspect of eilher knee, that extension was to 0 degrees (0 degrees nonnal), and flexion was to 135 degrees (135 degrem normal) for both knees, and that test results were negative. In conclusion, Dr. Polavarapu provided a cliagnosis of cervical, thoracic and lumbar spraidstrains, resolved and normal examination of the bilateral knees. He opined that there was no evidence of a causally related orthopedic disability and that plaintiff could perform his normal activities of daily living without restrictions or limitations. He also stai:ed that based on the history provided, the examination findings, and submitted records, there was a causal relationship between the subject accident and plaintiffs reported symptoms. In his affirmed report dated July 12, 201 1 based 011 his examinai ion of plaintiff Yves Guiteau.,Dr. Polavarapu stated that plaintiffs current complaints consisted of pain in his neck and right shoulder. He listed submitted records which included an MRI report dated August 5 , 2009 of the cervical spine and a chiropractic examination dated June 10, 2009 by David E. Trimboli, D.C. Dr. Polavarapu provided the results of range of motion testing. Regarding plaintiffs cwvical spine, he indicated that plaintiff complained of minimal tenderness to palpation of the cervical paraspinal musculature but no muscle spasm, and reported flexion to 40 degrees (45 degrees normal), extension to 40 degrees (45 degrees nomial). right rotation to 70 degrees (70 degrees normal), left rotation to 70 degrees (70 degrees nonnal), right lateral flexion to 45 degrees (45 degrees nornial), and left lateral flexicm to 45 degrees (45 degrees nom-mal). With respect to the thoracic spine, he found no paraspinal spasm or tenderness, lateral bending on the riglit and left was nonnal, and rotation to the right aiid left was normal. As for the lumbar spine, he reported no spasm or tenderness over the paraspiiial musculature on palpation, ar d flexion 90 degrees (90 degrees noinial), extension 30 degrees (30 degrces normal), and right and left lateral bending 30 degrees (30 degrees normal). Dr. Polavarapu also performed a neurological examination ofplaintiff s cervical spine and lumbar spine with normal results. The range of motion testing results for plaintiff s right shoulder and left shoulder revealed forward flexion to 170 degrees (1 80 degrees normal), abduction to 1 70 degrees (180 degrees normal), cxtemal rotation to 40 degrees (50 degrees normal) aiid normal inteiiial rotation. Regarding plaiiitiff s shoulders, Dr. Polavarapu did not note any crepitus at the joints nor any impingement sign. His diagnosis was cervical, thoracic and lumbar spine sprain and strain, resolved, and hilateral shoulder sprain, resolved. Dr. Polavarapu opined that there was no evidence of a causallyrelated orthopedic disability and that plaintiff could perfonn his normal activities of daily living without restriction or limitation. He concluded that based on the history provided, examination findings, and records submittecl, there was a causal relationship between the subject accident and plaintifrs reported symptoms. [* 5] Guiteau v Hurst Index No. 10-24258 Page No. 5 Here, defendant failed to meet her prima facie burden c f showir,g that plaintiff Mike Guiteau and plaintiff Yves Guiteau did not sustain a serious injury within the meaning of Insurance Law S; 5102 (d) as ;I result of the subject accident (see Caracciolo v Elrizorrt Fiw! Dist., __ AD3d 2012 NY Slip Op 02623 [2d Dept 20121; Katrrrzov v COJllZty ofNassarr, 91 AD3d 723,936VYS2d 285 [2d Dept 20l2l). The range of motion testing results for plaintiff Mike Guiteau s lumbar spine extension revealed a 16.7 pe:rcent restriction raising ail issue of fact as to whether plaintiff sustained a significant limitation (see Negrvie v Hcrncrnclcz, 2 AD3d 51 1, 768 NYS2d 231 [2d Dept 20031 [resiriction of motion by more than 15 percent raised a triable issue of fact as to the existence of a serious iiijuqi]). In addition, the range of motion testing results for plaintiff Yves Guiteau s right shoulder and left shou..derexteiiiai rotation revealed a 20 percent limitation, which is significant (see Mazo v WoZofsky, 9 AD3d 452, 779 NYS2d 921 [2d Dept 2004]). Moreover, defendant s evidentiary submissions demonstrated the existence of a triable issue of fact as to causation (see Kearrzey v Garrett, 92 AD3d 725, 938 NYS2d 349 [2d Clept 20121). -. Inasinuch as defendant failed to meet her prima facie burden, defendant s motion for sunmary judgment dismissing the complaint is denied, without regard to the sufficiency of the papers submitted by plaintiffs in opposition (see Scott v Gresio, 90 AD3d 736, 934 NYS2d 2,51 [2d Dept 201 11; Kelly v Glzee, 87 AD3d 1054,929 NYS2d 763 [2d Dept 201 I]). Accordingly, the instant motion for summary judgment is denied. i PETER H. MAYER, fS.c).

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