Wade v Miodownik

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Wade v Miodownik 2012 NY Slip Op 31252(U) April 23, 2012 Supreme Court, Nassau County Docket Number: 9128/2009 Judge: Michele M. Woodard 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------ ---- ---- -- )C LARRINE WADE MICHELE M. WOODARD Plaintiff TRIAL/IAS Par 8 Index No. : 9128/2009 Motion Seq. No. : 01 -against- AMENDED DECISION AND ORDER JUN MIODOWNIK , as E)Cecutri)C of the Estate of SAUL MIODOWNIK Defendant. --------------------------------------------------------------------------- )C Papers Read on this Motion: Defendant' s Notice of Motion Plaintiff s Affirmation in Opposition Defendant' s Reply )C)C )C)C The defendant June Miodownik , as E)Cecutri)C of the Estate of Saul Miodownik , moves by 3212 granting her sumar judgment Notice of Motion for an an order pursuant to CPLR dismissing plaintiffs complaint on the ground that the plaintiff has failed to sustain a serious injur pursuant to Insurance Law 51 02( d). The plaintiff opposes the defendant's application. Plaintiff commenced this action to recover damages for personal injuries allegedly sustained in a car accident which occured at the intersection of Ocean Avenue and Nassau Road in West Hempstead , New York on July 4 , 2008. There is no dispute that the plaintiff was stopped at a red light when her vehicle was struck in the rear by the vehicle operated by Saul Miodownik. Subsequent , to the accident , Saul Miodownik passed away and June Miodownik was appointed as the Executri)C of his Estate. The plaintiff claims that she was " pitched forward as a result of the impact and (I) felt (my) chest hit the steering wheel" (Plaintiffs Affidavit 2). Both paries drove their vehicles away from the scene of the accident. The plaintiff went to the Emergency Room at North Shore University in Manasset where she was prescribed pain medication and [* 2] muscle rela)Cants and advised to see an orthopedic surgeon. Shortly after the accident , the plaintiffbegim treating with Dr. Jay Eneman for pain she e)Cperienced in her neck , shoulder , back and legs as a result ofthe accident. Dr. Eneman prescribed a soft neck collar , pain medication and physical therapy. The plaintiff treated with Dr. Eneman every three weeks and proceeded in a course of physical therapy at the Bridge Rehabilitation and Musculoskeletal Care. The plaintiff also sought chiropractic treatment from Dr. Leo Beloyianis. The plaintiff continued to treat with Dr. Beloyianis and Dr. Eneman until her no- fault benefits e)Cpired. The plaintiff claims that as a result of the accident she has difficulty performing everyday activities and is unable to bike ride and bowl as she did prior to the accident. She also complains that she is not able to ride a long distance in cars and is required to use a chair brace at work. The plaintiff further claims that as a result of the pain from the accident she is unable to sleep soundly. In her Verified Bil of Pariculars , Wade claims that she sustained the following personal injuries in the accident , all of which she asserts to be " serious injuries " within the meaning of Insurance Law ~5102(d): - Internal derangement of the cervical spine and/or pejoration thereof; Acute cervical radiculopathy Impingement syndrome of the right shoulder and/or pejoration thereof; Internal derangement ofthe right shoulder and/or pejoration thereof; Internal derangement of the lumbosacral spine and/or pejoration thereof; Right shoulder contusion Acute lumbosacral sprain Lumbar radiculopathy to the right Internal derangement of the right foot; Loss of sleep The plaintiff testified at her deposition that she missed two weeks of work. She further claims that she is now restricted from many movements , lifting of things and her lifestyle has [* 3] definitely changed. In support of her application for summary judgment , the defendant submitted the affrmed report of Dr. Arnold Ilman , who conducted an independent orthopedic e)Camination of Wade on March 13 , 2010. Dr. Ilman conducted range of motion testing on the plaintiff and determined that the plaintiff had resolved cervical , lumbosacral and right shoulder sprains. Dr. Ilman furher affirmed that there is no objective evidence of disability. The defendant also submitted the affirmed report of Dr. Lawrence Robinson who performed an independent neurological e)Camination of Wade on March 30 2010. Dr. Robinson performed quantified range-of-motion testing on Wade s cervical spine and lumbar spine and concluded that Wade had normal ranges of motion of her cervical and lumbar spine. Dr. Robinson performed other clinical tests , which showed no motor or sensory deficits; and based on his clinical findings, concluded that Wade has no disability as a result of the accident. As a proponent of the summar judgment motion , the movant had the initial burden of establishing that plaintiff did not sustain a causally related serious injur under the permanent consequential limitation of use , significant limitation of use and 90/180- day categories. a Car Sys., 98 NY2d 345 352 (2002)). Defendant's medical e)Cpert must (See Toure Avis Rent specify the objective tests upon which the stated medical opinions are based and , when rendering an opinion with . respect to plaintiffs range of motion , must compare any findings to those ranges of motion considered normal for the p icular body part. (Browdame Candura 25 AD3d 747 , 748 (2d Dept 2006)). The defendant established her submitting, prima facie entitlement to judgment as a matter of law by inter alia the affirmed medical report of Dr. Arnold M. Ilman, an orthopedist. The [* 4] doctor found no significant limitations in the ranges of motion with respect to any of plaintiff s claimed injuries , and no other serious injur meaning of Insurance Law ~ 51 02( d) Avis Rent a Car Sys. (see Toure causally related to the collision Gaddy within the 98 NY2d 345 , 352 (2002); Eyler 79 NY2d 955 956- 957 (1992)). The burden now shifts to plaintiff to demonstrate , by the submission of objective proof of the nature and degree of the injury, that she sustained a serious injury or there are questions of fact as to whether the purorted injury, in fact , is serious. In order to satisfy the statutory serious injur Perl threshold , Meher 18 NY3d 208 (2011). a plaintiff must have sustained an injury that is identifiable by objective proof; subjective complaints of pain do not qualify as serious injur within the Koubek 70 NY2d 678 Inc., supra; Scheer Avis Rent A Car Sys. See Toure meaning ofInsurance Law ~5102(d). 679 (1987); Munoz Hollngsworth 18 AD3d 278 279 (1st Dept 2005). Plaintiff must come forth with objective evidence of the e)Ctent of alleged physical limitation resulting from injury and its duration. That objective evidence must be based upon a recent e)Camination of the plaintiff Cintas Corp. 2010); Cornelius (2d Dept 2007); Amato (Sham Zylberberg, 49 AD3d 498 (2d Dept 2008); Sharma 50 AD3d 1085 (2d Dept 2008); Diaz, 48 AD3d 442 Fast Repair, Inc., 42 AD3d 447 (2d Dept 2007)) and upon medical (Perl proof contemporaneous with the subject accident. Service 71 AD3d 978 (2d Dept B&P Chimney Cleaning, Manning Tejeda Meher, supra; Ferraro Ridge Car 38 AD3d 622 (2d Dept 2007); Zinger 35 AD3d 851 (2d Dept 2006)). In opposition to the motion , plaintiff submits an affirmed medical report of Leo Beloyionis , dated November 19 2009 and Dr. Jay Eneman dated December 5 , 2011. Dr. Eneman [* 5] first treated the plaintiff on July 8 2008. In his report , Dr. Eneman states that " the patient was' seen on September 20 , 2011 at which time she continued to e)Cperience neck and discomfort as well as lower back pain. On objective physical e)Camination shoulder of her range of motion using a goniometer , cervical flexion was limited to 25 degrees (50 degrees is normal , therefore a 50 % oflimitation); e)Ctension 5 (60 is normal and therefore a 92% limitation); rotation was limited to 50% right and left with moderate pain radiating into the trapezius musculature (80 is normal and therefore a 35% limitation of range of motion); lateral flexion of the neck was limited to less than 10 degrees (40 is normal and therefore there was a 75% limitation of range of motion. According to Dr. Eneman , an e)Camination of Ms. Wade s lumbar spine revealed diffuse tenderness throughout the entire lumbar region. The e)Camination of Ms. Wade s left shoulder revealed increasing discomfort at the e)Ctremes of movement on abduction, forward fle)Cion , adduction and abduction. He further opined that Ms. Wade has sustained a permanent and significant neck injur with cervical radiculopathy, low back and right shoulder injuries. He also determined that Ms. Wade may need surgery in the future. The defendant argues that the report of Dr. Eneman should not be admitted based on the almost two year gap between the plaintiff s last visit and the underlying e)Camination for the report submitted in the within motion. The Cour rejects the defendant's argument and accepts Dr. Eneman s report. The Court finds that the plaintiffs gap in treatment of almost two years does not require the granting of defendant' s motion for sumar judgment. " There was evidence regarding the nature of her treatment for more than si)C months after the accident and plaintiff e)Cplained that she had to stop treatment at that point because her no- fault insurance ran out and she could not afford to pay for it herself' (see Black Robinson, 305 AD2d 438 (2d Dept 2003)). [* 6] The affidavits submitted by the paries are in conflict with each other with regard to whether the injuries complained of by the plaintiff are permanent in nature and raise issues of fact for the trial coUr to decide. " It is a)Ciomatic that sumary judgment is a drastic remedy and should not be granted where triable issues of fact are raised and cannot be resolved on 20th Century- Fox Film Corp. (1966); Silman 2d 713 (1 Silman Briarclif Farms Inc. 17 NY 2d 57 Milerton Agway Cooperative conficting affidavits. st supra; Epstein 3 NY 2d 395 (1957); Scally, 99 AD Dept 1984). Summar Judgment is " issue finding " not " issue determination. Epstein supra. It is improper for the motion cour to resolve material issues of fact which must be left to the trial cour to resolve. Musallam 11 AD 3d 280 (1 st Bruneth Dept 2004). As such, the defendant's motion for Summar Judgment is denied. ORDERED , that the parties are directed to appear on June 11 2012 at 9:30 a. m. in Central Jur for trial. This constitutes the Decision and Order of the Court. DATED: April 23 , 2012 Mineola, N. Y. 11501 ENTER: N. MICHELE M. WOODARD ENTERED F:\DECISION - SERIOUS INJURY\Wade v. Miodownik. wpd MAY 0 1 2012 NASSAU COUNTY COUNTY ClIRK' S OfFICE Page 6 of 6

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