Shui K. Lai v Castagliola

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Shui K. Lai v Castagliola 2012 NY Slip Op 31237(U) May 4, 2012 Supreme Court, New York County Docket Number: 107481/2008 Judge: George J. Silver 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. ANNEDON511112012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. Georqe J. Silver ,Justice PART SHUl K. LA1 and HAYLEY YEE 10748112008 INDEX NO. vs. 22 MOTION DATE ANDREW A. CASTAGLIOLA, ANNA T. CASTAGLIOLA and DENNIS J. MANGAN MOTION CAL. NO. were read on thls motlon tolfor The following papers, numbered 1 to 2 095 MOTION SEQ. NO. SUMMARY JUDGMENT m~~rs Numbered Notice of Motlon/Order to Show Cause Answering Affldavlts -Affldavlts- Exhlblts - Exhibits c3 yes H 1 E 2 MAY 1 0 2013 Replying Affldavlts, Cross Motion Cross-Motlon: F I bE NEW YORK NO Upon the foregolng papers, It Is ordered that thls motlon COUNTY CLEHK'S OFFICE Defendants Andrew Castagliola and Anna Castagliola (collectively "Defendants") move pursuant to CPLR $3212 for an order granting summary judgment and dismissing Plaintiffs Shui Lai and Hayley Yee's (coll'ectively "Plaintiffs") complaint on the grounds that Plaintiffs did not sustain an injury that qualifies as "serious" as defined by New York Insurance Law 851 02(d). Under New York Insurance Law 55 102(d), a ''serious injury" is defined as a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent :onsequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which :onstitUte such person's usual and customary daily activities for not less than ninety days during he one hundred eighty days immediately following the occurrence of the injury or impaiment, "[A] defendant can establish that [a] plaintiff's injuries are not serious within the meaning if Insurance Law 95 102 (d) by submitting the affidavits or afirmations of medical experts who :xamined the plaintiff and conclude that no objective medical findings support the plaintiffs :laim" (Grossmun v Wright, 268 AD2d 79, 83-84 [ 1st Dept 20001). If this initial burden is met, 'the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's iubmissions by demonstrating a triable issue of fact that a serious injury was sustained within the neaning of the Insurance Law'' (id.at 84). The Plaintiff is required to present nonconclusory :xpert evidence sufficient to support a finding not only that the alleged injury is serious within he meaning of $5 102(d), but also that the injury was causally related to the accident (Vdentin v %milla, 59 AD3d 184 [ 1st Dept 20091). . Check one: ....................................... CASE DISPOSED NON-FINAL DISPOSITION I. Check as approprlate:.: MOTION I S 0 GRANTED DENIED GRANTED IN PART OTHER ..Check as appropriate: ...................... SETTLE ORDER SUBMIT ORDER DO NOT POST FIDUCIARY APPOINTMENT REFERENCE 0 0 0 n 0 [* 2] Plaintiff Shui Lai Plaintiff Shui Lai alleges in her Verified Bill of Particulars that, as a result of the May 13, 2007 accident, she sustained a serious injury including traumatic brain injury with cognitive dysfunction, amnesia, cervical strain, cervical spondylosis and stenosis, L4-L5 disc herniation, carpal tunnel syndrome, lumbar strain and left meniscal capsular separation. In support of his motion, Defendant submits the independent orthopedic examination of Dr. Robert Israel conducted on July 24,2009. He conducted range of motion testing on Plaintiffs cervical spine, lumbar spine, shoulders, left wrist and left knee. Dr. Israel found no loss in Plaintiffs range of motion when compared to normal. He concluded that Plaintiff had resolved strains and no orthopedic disability. Dr. Maria Audrie DeJesus conducted a neurological examination of Plaintiff on August 24,2009. She evaluated Plaintiffs mental status, cranial nerves and motor system. Dr. DeJesus conducted range of motion testing using a goniometer and found no limitations in Plaintiffs range of motion of her cervical and lumbar spine when compared to normal. She concluded that Plaintiff was status post cervical and lumbar sprains, which had resolved, had cerviogenic headaches and a normal neurological examination. Defendants also submit Plaintiffs radiological reports. The cervical spine MRI, taken on July 20,2007, revealed a questionable minimal retrolisthesis at C4-C5 and C3-C4 through C5-C6 disc narrowing and desiccation, spinal stenosis and spondylosis. Plaintiffs lumbar spine MRI revealed minimal spurring at L4-L5, mild degenerative marrow signal endpoint changes, mild degenerative disc bulge with a superimposed tiny midline herniation. Plaintiffs left knee MRI taken on August 6, 2007 revealed no evidence of meniscal tear, small amount of joint effusion, mild osteoarthritic changes of the patellofemoral joint and grade I meniscal capsular separation. Plaintiffs brain MIU was taken on July 20,2007. It revealed no abnormal findings and Dr. William Louie concluded that it was a normal MRI. Defendants have satisfied their burden of establishing prima facie that Plaintiff did not suffer a serious injury (Yagiv Corbin, 2007 NY Slip Op 7749 [ 1st Dept]; Becerril v Sol Cab Corp, 50 AD 3d 261,854 NYS2d 695 [lst Dept 20081). In opposition, Plaintiff submits Wilson Memorial Hospital records. The records are unsworn. It is well settled that a plaintiff may not rely upon unsworn medical evidence to defeat a defendant's summary judgment motion (see Migliaccio v Miruku, 56 AD3d 393, 394 [ 1st Dept 20081; DeJesus v Paulino, 61 AD3d 605,607 [lst Dept 20093 [unsworn emergency room records and other reports had no probative value]). Plaintiff argues that Defendants' experts referenced these records in their reports and thus, these inadmissible records are properly before the court. Although Defendants' expert, Dr. DeJesus, indicates that she reviewed the unsworn emergency room records, such cursory review does not open the door to Plaintiffs reliance upon these same records to raise a genuine issue of fact. Defendant's expert did not attach copies of the unsworn records in her submissions. Nor did she discuss the results of the prior examinations, or rely upon such results (see Hernandez v Almanzar, 32 AD3d 360,361 [ 1st Dept 20061 [defense experts' review of unaffirmed reports "did not open the door to plaintiffs' reliance on them, since defendants did not submit such reports in support of the motion, nor did their experts rely on them in forming their conclusions"1. Therefore, the Wilson Memorial Hospital records are inadmissible. Plaintiff also submits the expert report of Dr. h a n d Lalaji, whopersonally reviewed and interpreted Plaintiffs cervical spine MRI film. Dr. Lalaji states that there is a posterior disc osteophyte complex with focal disc protrusion at C3/C4, C4/C5 and C 5 K 6 producing mild Index No.: 107481/2008 Page 2 of 5 [* 3] spinal canal narrowing. Further, Plaintiff submits the expert report of Dr. Tejal Lalaji, who personally reviewed and interpreted Plaintiffs brain MRI film. She concluded that the film revealed mild cerebral atrophy, no acute intracranial abnormality and needed clinical correlation for mild chronic ethmoid and maxillary sinusitis with superimposed acture component on the right. However, Dr. Anand Lalaji and Dr. Tejal Lalaji did not opine as to the causation of these findings and as such their reports are insufficient to rebut Defendants' prima,facie case (Nieves v Castillo, 74 AD3d 535, 902 NYS2d 91 [lst Dept 20101; Gihbs v Hee Hong, 63 AD3d 559,559,881 NYS2d 415 [2009]). Plaintiff also submits the expert report of Dr. Tsao Chao. Dr. Chao treated Plaintiff on May 28, 1998 until July 15,2006 for neck, bilateral shoulders and lower back pain. He reported that prior to the present accident, Plaintiff had some range of motion limitations of her cervical spine but that her range of motion for her shoulders and lumbar spine were within functional limits. Dr. Chao conducted range of motion testing after the present accident and found limitations in Plaintiffs range of motion. He concluded that Plaintiff had sustained a cervical spraidstrain, a bilateral shoulder spraidstrain, a lumbar spraidstrain, left knee contusion with internal derangement and right ankle spraidstrain. _ _ __ - Additionally, Plaintiff submits certified records from Wellcare Medical. She was first treated at. Wellcare Medical on December 14,2007. At that time, range of motion testing was conducted Ad revealed limitations in Plaintiffs range of motion for her cervical and lumbar spine. Dr. Randolph Rosarion also noted cervical spasm and diagnosed Plaintiff with post traumatic cervical and lumbar disc dysfunction amd post traumatic stress disorder. He recommended Plaintiff attend physical therapy and use a lidodem 5% patch. Dr. Rosarion also noted tenderness over the shoulder area. He further examined Plaintiff on January 25,2008 and diagnosed Plaintiff with cervical and lumbosacral spine derangement. Plaintiff also submits records from Downtown Physical Medicine and Rehabilitation. However, only the report of Dr. Douglas Schottenstein is affirmed. Dr. Schottenstein examined Plaintiff on April 1, 2008. He found straight leg raising in the sitting position to be positive, bilaterally. Dr. Schottenstein also reviewed the radiological studies and diagnosed Plaintiff with cervical spondylosis, cervical C7 radiculitis, lumbosacral S 1 radiculitis, lumbar degenerative disc disease and possible lumbar-. - - facet osteoarthritis . Dr. Xiao-Ke Gao also treated Plaintiff for her neurological injuries. He performed nerve conduction studies and concluded that Plaintiff suffered from acute right S 1 radiculopathy on September 25,2007. On October 5 , 2007, Dr. Gao conducted an electrodiagnostic study, which revealed evidence consistent with Carpal Tunnel Syndrome. Plaintiff also submits medical records from Dr. Simon Lee, Dr. Lee examined Plaintiff on June 22, 2008 and conducted range of motion testing using a goniometer. He found limitations in Plaintiffs range of motion for her cervical and lumbar spine and bilateral shoulders. He concluded that Plaintiff suffered from a cervical sprain, bilateral shoulder sprain and postraumatic headaches. Dr. Lee suggested further examination to rule out cervical and lumbar disc displacement or radiculopathy. Dr. Ira Rashbaum examined Plaintiff on the request of her no-fault provider on December 5,2007. He concluded that Plaintiff sustained a traumatic brain injury with cognitive dysfunction, cervical strain, lumbar strain, bilateral carpal tunnel syndrome and right S 1 radiculopathy. Dr. Rashbaum additio'nally states that Plaintiffs headaches are either related to her brain injury, her cervical strain or both;' Index No.: 107481/2008 Page 3 of 5 [* 4] Under the permanent consequential limitation and significant limitation categories of ork Insurance Law 85 102(d), Plaintiff must submit medical proof containing objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiffs present limitations to the normal function, purpose and use of the affected body organ, member, function or system (Gorden v. Tibulcio, 2008 NY Slip Op 3382 [lst Dept] quoting John v Engel, 2 AD3d 1027, 1029 [3d Dept 20031). Further, to qualify under the consequential or significant injury definition, the injury must be more than minor or slight (Guddy v Eyler, 79 NY2d 955 [ 19921). Plaintiffs submissions are sufficient to rebut Defendants prima facie case. With respect to Plaintiffs claim under the 90/180 category of Insurance Law 55 102(d), Plaintiffs injuries must restrict her from performing substantially all of her daily activities to a great extent rather than some slight curtailment (Szabo v. XYZ, Two Wuy Radio Tuxi Ass n, Inc. , 700 NYS2d 179 [1999]; Thompson v. Abbusi, 788 NYS2d 48 [Ist Dept ZOOS]; Hernandez v. Rodriguez, 63 A.D.3d 520 [ 1st Dept 20091). Plaintiffs Verified Bill of Particulars indicates that she was confined to bed for three weeks and intermittently thereafter and confined to home for twelve months and intermittently thereafter. Plaintiff also testified that she still experiences pain from her injuries. However, Plaintiff does not submit any evidence to show that any of her alleged limitations in activity or confinements were medically determined. Therefore, this evidence is insufficient to establish a substantial curtailment of Plaintiffs normal activities during the three-month period immediately following the accident as required under the 90/180 category (Grirnes-Carrion v Carroll, 17 AD3d 296, 794 NYS2d 30 [App. Div. 1st Dept 20051; Lopez v Abdul- Wahab, 2009 NY Slip Op 8685 [ 1st Dept]; Rodriguez v Herbert, 34 AD3d 345, 825 NYS2d 37 [ 1st Dept 20061). Wff Havlev Yee Plaintiff Hayley Yee alleges in her Verified Bill of Particulars that, as a result of the May 13,2007 accident, she sustained a serious injury including multiple facial lacerations resulting in scarring, cervical spine straightening, cervical spraidstrain and myofascial pain of shoulders. Defendants submit the expert report ofDr,Robert Israel. Dr; Israel examined Plaintiff on April 17,2009. He conducted range of motion testing using a goniometer and found no limitations in Plaintiffs range of motion for her cervical and lumbar spine, bilateral shoulders, bilateral wrists and bilateral knees. Dr. Israel concluded that Plaintiff had no orthopedic disability. A disfigurement may be considered significant and thus constitutes a seriousinjury if a reasonable person would view the physical alteration as unattractive, objectionable, or ... the subject of pity and scorn (Siegle v County of Fulton, 174 AD2d 930,93 1, quoting Curuscl v Hull, 101 AD2d 967,968, afld 64 NY2d 843; see also Abdului v Roy, 232 AD2d 229,647 NYS2d 778 [ 1st Dept 19961). Defendants submit color photographs of Plaintiffs alleged disfigurement. In opposition, Plaintiff submits the uncertified emergency department records from Wilson Memorial Regional Medical Center, Dr. Douglas Monasebian s report and color photographs of Plaintiffs scar. Dr. Monasebian examined Plaintiff on November 22,20 10. He states that Plaintiffs first scar is three centimeters in length over her left eyebrow in a L shape with palpable firmness. Dr. Monasebian describes her other scar as under the right lower eyelid, about .5 centimeter in length and hypopigmented and curvilinear. He further opines that the scars are permanent and that scar revisional surgery will improve the appearance of the scars, but Index No.: 100302/2009 Page4of 5 [* 5] not eliminate them. Plaintiff has sufficiently raised a question of material fact as to whether the disfigurement of her face is significant. As such, Defendants inotion for summary judgment as to serious injury is denied. With respect to Plaintiffs claim under the 90/180 category of Insurance Law $5 102(dj, Plaintiffs injuries must restrict her froin performing substantially all of her daily activities to a great extent rather than some slight curtailment (Szabo v. XYZ, Two Way Radio Taxi Ass n, Inc., 700 NYS2d 179 [ 19991; Thompson v. Abbasi, 788 NYS2d 48 [ 1st Dept 20051; Hernandez v. Rodriguez, 63 A.D.3d 520 [ 1st Dept 20091j. Plaintiffs Verified Bill of Particulars states that she was confined to bed for two weeks and intermittently thereafter and confined to home for approximately three months and intermittently thereafter. However, Plaintiff does not submit any evidence to show that her limitations were medically determined. Therefore, the evidence is insufficient to establish a substantial curtailment of Plaintiffs normal activities during the three-month period immediately following the accident as required under the 90/180 category (Grimes-Carrion Carroll, 17 AD3d 296, 794 NYS2d 30 [App. Div. 1st Dept 20051; Lopez v v Abdul-Wahab, 2009 NY Slip Op 8685 [lst Dept]; Rodripez v Herbert, 34 AD3d 345, 825 NYS2d 37 [lst Dept 20061). .. ORDERED that Defendants motion for summary judgment is denied as to Plaintiffs claim under permanent consequential limitation and significant limitation categories of Insurance Law 95 102(d); and it is further ORDERED that Defendants mation for summary judgment is granted as to Plaintiffs claims under the 90/180 category of Insurance Law $5 102(d); and it is further ORDERED that Defendants are to serve a copy of t h ~ order, with s all parties, within 30 days. This constitutes the decision and order of the court. ___ - . . Bated: MAY 1 0 2012 . my 4 2012 New York, New York GEORGE J. SILVER Index No.: 107481/2008 Page 5 of 5 ..

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