Antoine v Bygrave

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Antoine v Bygrave 2012 NY Slip Op 31281(U) April 30, 2012 Sup Ct, Nassau County Docket Number: 6971/10 Judge: Robert A. Bruno 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] Sea, SHORT FORM ORDER. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. ROBERT A. BRUNO, J. SHAUN ANTOINE and DIONNE ALVAREZ Plaintiff TRIAL/IAS PART 20 INDEX No. : 6971/10 Motion Date: 03/21/12 Motion Sequence: 002 003, 004 -againstANDRE E. BYGRA VE , ERROL J. BYGRA VE KELVIN A. STERLING , DAMION C. MCKENZIE RICHAR S. HILL JR. and THE SAFETY ZONE LLC DECISION & ORDER Defendants. Papers Numbered Sequence #002 Notice of Motion................................................................................................ Sequence #003 Notice of Cross Motion...................................................................................... 2 Affirmation in Opposition.................................................................................. 3 Sequence #004 Notice of Cross Motion...................................................................................... 4 Affirmation in Opposition.................................................................................. 5 Reply Affirmation.......................................................................................... .... . 6 Upon the foregoing papers, it is ordered that this motion is decided as follows: By separate motions , defendants Kelvin A. Sterling and Damion C. McKenzie (Mot. Seq. 002), and defendants Richard S. Hil Jr. and The Safety Zone LLC (Mot. Seq. 004), each seek an Order , awarding them inter alia sumar judgment dismissing the plaintiffs , Shaun Antoine and Dionne Alvarez s complaint on the grounds that neither plaintiff's injuries satisfy the serious injur " threshold requirement of Insurance Law 51 02( d), and as such , neither plaintiff has a cause of action. The separate motions are granted. Inasmuch as counsel for the plaintiff in his affirmation in opposition to the instant motions , states in a footnote that the action against defendants Andre E. Bygrave and Errol Bygrave has been settled , the motion by defendants Andre E. Bygrave and Errol Bygrave (Mot. Seq. 003) for the identical relief is denied as moot. Page 1 [* 2] Antoine v. Bygrave Inde)C No. : 6971/10 three car accident that occured on October 8 , 2007 at Jerusalem Road and Clarendon Road , in appro)Cimately 1 :30 p. m. near the This action arses out of a intersection of Uniondale , Nassau County, New York. As best as can be determined from the papers submitted herein , the accident occured as the motor vehicle being operated by defendant Andre Bygrave and owned by defendant Errol J. Bygrave came into contact with the passenger side of the vehicle being operated by defendant Kelvin A. Sterling and owned by defendant Damion C. McKenzie when the Sterling vehicle made a left tur in front of the Bygrave vehicle which was traveling straight on Jerusalem Avenue. Apparently, in an effort to avoid the collsion , Andre Bygrave steered his vehicle to the left but ultimately came into contact with the driver s side front bumper of the motor vehicle owned by defendant The Safety Zone , LLC and being operated by defendant Richard S. Hil Jr. The Safety Zone LLC vehicle was parked on Jerusalem Avenue at the time of this accident. Plaintiffs Shaun Antoine and Dionne Alvarez were passengers in the Bygrave vehicle at the time of this collsion. Plaintiff Alvarez was seated in the front passenger seat and plaintiff Antione was seated in the rear passenger side of the Bygrave vehicle. As a result of the accident , both plaintiffs claim that they each sustained serious injuries. Specifically, plaintiff Shaun Antoine claims that as a result of this collsion , he sustained injuries supraspinatus to his left shoulder , neck and back. He alleges that he sustained inter alia: impingement related to the acromioclavicular arch of the left shoulder; thoracic herniation of the nucleus pulposus; cervical , thoracic , and lumbar segmental dysfuction; left shoulder contusion sprain/strain; traumatic musculo- ligamentous sprain/strain injuries to neck; and decreased range of motion of the cervical, lumbar and thoracic spine regions and left shoulder (Bil of Pariculars 9). At his sworn e)Camination before trial , plaintiff Shaun Antoine testified that following the accident , he left in an ambulance to Nassau County Medical Center with complaints of pain in his left shoulder , lower back and neck. X-rays were taken and he was discharged the same day with pain kilers. Antoine stated that he had previously dislocated his left shoulder in 2005 for which he had received treatment. With respect to his employment , Antoine testified that at the , he was working for the Nassau County Public Librar system as a messenger delivering books (p. 37). He testified that he chose not go to work the day after the accident and it was not pursuant to the directive of a doctor (pp. 30- 31). He stated that he retured to work two weeks after the accident , resuming his full time schedule and his normal duties (pp. 31 , 38). As to his activities , plaintiff stated that he can no longer do laundr, go food shopping or lift heavy items as a result of this accident (pp. 35- 36). time of the accident Similarly, as a result of the collsion , Dionne Alvarez claims that he sustained injuries to his left shoulder and back. Specifically, Alvarez alleges that he sustained large herniation at L5- S 1 slightly asymmetric toward the right side resulting in mass effect on the inter alia: Page 2 [* 3] Antoine v. Bygrave Inde)C No. : 6971/10 ventral sac , impingement and displacement of the right S 1 nerve root within the right anterolateral canal and bilateral foraminal narowing; supraspinatus impingement related to the left shoulder; right L5- S 1 radiculopathy; thoracic and cervical segmental dysfuction; loss of the normal cervical lordosis; traumatic musculo- ligamentaous sprain/strain injuries to neck; and left shoulder sprain/strain (Bil of Pariculars , ~9). acromioclavicular arch of the At his sworn e)Camination before trial , plaintiff Dionne Alvarez testified that at the time of the accident , he was working par- time at a temporar job as a "helper" for a trucking company involved in delivery service (pp. 9- 10). He stated that he was employed for appro)Cimately one month prior to the accident (p. 9) and as a result of this accident , he was out of work for appro)Cimately one week (p. 37). He resumed employment again in March 2008 (lei. As to activities , Alvarez testified that there is nothing that he cannot do as a result of this accident. That is , while he is not completely impaired from performing his usual activities as a result of this accident , certain activities including getting up in the morning, twisting, and playing some sports take longer to do. He stated that he canot sit or stand for long periods of time (pp. 29- 30). Both plaintiffs claim that their respective injuries fall within the following four categories of the serious injury statute: to wit , permanent loss of use of 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 fuction or system; and a medically determined injur or impairment of a non- permanent natue which prevents the injured person from performing substantially all of the material acts which constitute such person s usual and customar daily activities for not less than ninety days during the one hundred eighty days immediately following the occurence of the injur or impairment (Bil of Particulars , ~15). Whether they can demonstrate the e)Cistence of a compensable serious injury, however , depends upon the quality, quantity and v. Warshaw Woolen Associates, Inc. 297 AD2d (Manrique credibility of admissible evidence 519 (pt Dept. 2002)). In that regard , it is noted that since neither plaintiff alleges or claims that they have sustained a " total loss of use " of a body organ , member , fuction or system , neither plaintiff's injures satisfy the "permanent loss of use " ~5102(d) (Oberly v. category of it is plain that Insurance Law Bangs Ambulance, Inc., 96 NY2d 295 (2001)). Similarly, any claims that plaintiff's injuries satisfy the 90/180 category of Insurance Law ~ 5102(d) is also contradicted by their own testimony. Plaintiff Shaun Antoine testified that he retured to work two weeks after the accident , resuming his full time schedule and his normal duties (pp. 31 , 38). In addition , plaintiff Dionne Alvarez testified that he was out of work for only one week following this accident. Moreover , neither plaintiff claims that as a result of their alleged injuries , they are now Page 3 [* 4] Antoine v. Bygrave Inde)C No. : 6971/10 Dupuis (Monk v. medically" impaired from performing any of their respective daily activities to a great e)Ctent rather than 287 AD2d 187 , 191 (3rd Dept. 2001)), or that they are curtailed " v. Stark see also Sands v. Ellott 57 NY2d 230 , 236 (1982); (Licari some slight curailment" , this Court determines that both plaintiffs 299 AD2d 642 (3rd Dept. 2002)). In light of these facts have effectively abandoned their 90/180 claim for purposes of defendants ' initial burden of proof 16 Misc. 3d 743 (Sup. Ct. Nassau 2007)). v. Forman (Joseph on a threshold motion In light of the foregoing, this Court wil restrict its analysis to the remaining two categories as it pertains to each plaintiff; to wit, permanent consequential limitation of use of a body organ or member and significant limitation of use of a body fuction or system. , to meet the threshold significant limitation of use of a body fuction or system or permanent consequential limitation , the law requires that the limitation be more than minor , mild, or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injur or condition Koubeck 70 NY2d 678 Eyler Ellot insignificant" within the meaning (1987)). A minor , mild or slight limitation shall be deemed " Wright 268 AD2d 79 83 (2 Dept. 2000)). Ellot Under the no- fault (Licari supra; v. of the statute (Licari Gaddy v. statute v. supra; 79 NY2d 955 (1992); Scheer v. v. Grossman Furhermore , when , as in this case , a claim is raised under the " permanent consequential limitation of use of a body organ or member" or " significant limitation of use of a body fuction or system" categories , then , in order to prove the e)Ctent or degree of the physical limitation , an e)Cpert' s designation of a numeric percentage of plaintiff's loss of range of motion is acceptable Avis Rent A Car Systems, Inc. supra). In addition , an e)Cpert' s qualitative assessment of a plaintiff's condition is also probative , provided that: (1) the evaluation has an objective basis and , (2) the evaluation compares the plaintiff's limitations to the normal function , purose and use of the affected body organ , member , fuction or system (Id). (Toure v. Meher 2011 NY Slip Op. 08452 , held that a Recently, the Cour quantitative assessment of a plaintiff's injuries does not have to be made during an initial of Appeals in Perl v. e)Camination and may instead be conducted much later , in connection with litigation (Perl Meher 2011 NY Slip Op. 08452 (2011)). With these guidelines in mind , this Cour wil now turn to the merits of defendants motions. It is noted at the outset that in support of their motion, counsel for defendants Richard S. Hil Jr and The Safety Zone LLC (Mot. Seq. 004) adopt , incorporate and rely upon the proof submitted by defendants Kelvin A. Sterling and Damion C. McKenzie. Thus , the motions wil As stated above, the action against the Bygrave defendants has settled. Accordingly, this Cour wil not address the Bygrave motion. Page 4 [* 5] Antoine v. Bygrave Inde)C No. : 6971/10 be addressed concurently. In support of their motion , defendants Sterling and McKenzie submit the following: the sworn report of Dr. John C. Kilian , M. , an orthopedic surgeon who performed an independent orthopedic e)Camination of Shaun Antoine on June 16 2011; the sworn report of Dr. Sheldon P. Feit , M. D., a radiologist who performed an independent radiology review of an MRI of Shaun Antoine s cervical and lumbosacral spine taken on December 11 , 2007 and of his left shoulder taken on November 10 , 2007; the sworn report of Dr. John C. Kilian , M. , an orthopedic surgeon who performed an independent orthopedic e)Camination of Dionne Alvarez on June 16 2011; and the sworn report of Dr. Sheldon P. Feit , M. , a radiologist who performed an independent radiology review of an MRI of Dionne Alvarez s lumbosacral and cervical spine taken on December 11 2007 and of his left shoulder taken on November 10 2007. Initially, it is noted that the reports of Dr. Sheldon P. Feit , although sworn , are is plain from a simple reading of Dr. Feit' s reports that he has merely " reviewed" Shaun Antoine and Dionne Alvarez s " MRIs. " It is unclear to this Court as to whether the " MRIs " to which Dr. Feit refers are meant to indicate MRI fims or MRI reports of other physicians. In either case , Dr. Feit' s reports are incompetent and inadmissible. nonetheless incompetent. It In order to constitute competent medical evidence, a radiologist is required to have the MRI taen under his or her supervision and he or she also has to be the physician to read the MRI (Fiorilo v. 24 Misc.3d 1215(A) Arriaza, Transportation 23 AD3d 367 (2 Sayas (Sup. Ct. Nassau 2007); Dept. 2005)). Under these v. circumstances , while the radiologist need not pair the findings of the MRI films with a physical e)Camination , must nevertheless also report an opinion as to the causality of the findings AD3d 321 (2 Betheil-Spitz Dept. 2004); v. Merrick Linares 276 AD2d 732 (2 (Collns v. he or she Stone, Dept. 2000)). MRI reports are also admissible if another radiologist , i.e. , not the radiologist who actual MRI fims or performs the MRI scan , avers that he or she personally reviewed either the the sworn MRI report of the prescribing radiologist , rather than just the unsworn MRI reports of v. (Dioguardi v. Weiner 288 AD2d 253 (2 Dept. 2001); Beyel Console another physician v. Blum 39 AD3d 614 (2 Porto Dept. 2007)V However , if another AD3d 636 (2 Dept. 2006); physician avers that he or she personally reviewed the prescribing radiologist' s sworn reports (not the MRI fims), that physician must also pair up his or her findings with a recent physical v. Alvarez 19 AD3d e)Camination in order to constitute competent medical evidence (Silkowski 0fnote , however unsworn MRI report are referred to in the affrmed medical reports of the defendant's e)Camining doctor , the plaintiff is then permitted to , is that if the results of the submit and rely upon the same unsworn MRI report in opposing the motion McDonald 31 AD3d 632 (2 (Zarate Dept. 2006)). Page 5 [* 6] Antoine v. Bygrave Inde)C No. : 6971/10 476 (2 Dept. 2005)). Here , Stone supra; Dr. Feit does not proffer an opinion as to the causality of his Betheil-Spitz with a recent v. findings (Collns Linares supra). Additionally, Dr. Feit fails to pair up his findings Alvarez supra). Accordingly, Dr. Feit' s reports fail to constitute objective medical evidence and fly in the face of v. Avis Rent A Car Sys. , supra. Toure the requirements spelled out by the Cour of Appeals in physical e)Camination of each/either plaintiff v. (Silkowski Despite the incompetency of Dr. Feit's reports , the defendants have nonetheless established their prima facie entitlement to judgment as a matter of law. The affrmed reports of Dr. John Killan who e)Camined each plaintiff and performed quantified range of motion testing on their cervical and lumbosacral spine and left shoulder with a goniometer , compared his findings to normal range of motion values and concluded that the ranges of motion measured were normal , sufficiently demonstrates that neither plaintiff sustained a " serious injury " as a result of this accident. Dr. Kilian also performed motor and sensory testing and found no deficits , and based on his clinical findings and medical records review, concluded that each plaintiff has recovered fully from all alleged injures from the Gelle 60 AD3d 988 (Staffv. Yshua 59 AD3d 614 (2 subject accident Dept. 2009); Cantave v. Dept. 2009)). Having made a prima facie showing that the neither plaintiff sustained a " serious injury meaning of the statute , the burden shifts to the plaintiffs to come forward with evidence to overcome the defendants ' submissions by demonstrating a triable issue of fact that a (Pommels v. Perez 4 NY3d 566 (2005); see also Grossman serious injur" was sustained within the Wright supra). In opposition , counsel for plaintiff surprisingly fails to submit any medical proof to rebut defendants ' prima facie showing. Accordingly, plaintiffs ' opposition is wholly insufficient to present a triable issue of fact herein v. (see Pommels Perez supra; see also Grossman v. Wright, Licari v. Ellot supra). supra; In the absence of any competent or admissible evidence supporting a claim for serious injur, defendants , Kelvin A. Sterling and Damion C. McKenzie s motion (Mot. Seq. 002) and defendants Richard S. Hil Jr. and The Safety Zone LLC' s motion (Mot. Seq. 004) each seeking an Order , awarding them sumar judgment dismissing the plaintiffs , Shaun Antoine and Dionne Alvarez s complaint on the grounds that neither plaintiff's injuries satisfy the " serious injur" threshold requirement of Insurance Law ~5102(d) is granted. The complaint is dismissed as against said defendants. Page 6 [* 7] Antoine v. Bygrave Inde)C No. : 6971/10 All matters not decided herein are DENIED. Ths constitutes the Decision and Order of this Cow1. Settle Judgment on Notice. Dated: April 30 , 2012 Mineola, New York EN T E R: ENTERED MAR 02 2012 NASAU COUNTY COTY CLIft' . OffiCE F:\DECISIONS 2012IAOIN v BYGRAVE motion 2 3 & 4 - 3. 21- 12. wpd Page 7

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