Gouskos v Cohen

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Gouskos v Cohen 2012 NY Slip Op 31409(U) April 10, 2012 Supreme Court, Suffolk County Docket Number: 31499/2009 Judge: Ralph T. Gazzillo 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: 3 1499/2009 SHORT FORM ORDER Supreme Court - State of New York IAS PART 6 - SUFFOLK CIOUNTE L/// L// MOT. SEQ: 002 MD; 003 MD 004 MD J PRESENT: Hon. RALPH T. GAZZILLO A.J.S.C. ............................................................... X MICHAEL GOUSKOS, Plaintiff(s), - against - SILVERSTEIN & KAHN, ESQS. Attorneys for Plaintiff 1160 E,ast Jericho Turnpike Huntington, N.Y. 1 1743 Upon the following papers numbered 1 to 32 read on three motions; Notice of Motion and supporting papers numbered 1-6 (mot seq 002) ;Notice of Motion and supporting papers numbered 6-12 (mot seq 003); Notice of Motion and supporting papers numbered 12-22 (mot seq 004); Affirmation in Opposition and supporting papers numbered 2 3-30; Replying Affidavits and supporting papers numbered 3 1-32; it is, ORDERED that the defendant s motion (mot seq 002) pursuant to CPLR §3126(3) seeking to dismiss the complaint based upon the plaintiff :; failure to appear for court ordered depositions is denied as moot, and it is further ORDERED that the defendant s motion (mot seq 004) pursuant to CPLR $3 126(3) seeking to dismiss the complaint based upon the plaintiff :; failure t:o comply with the Supplemental Notice for Discovery and Inspection and Inspection Post Deposition dated October 7,2010 is denied as moot, and it is further ORDERED that this motion (mot seq 003) by defmdant for an order pursuant to CPLR $32 12 granting summary judgment in her favor dismissing the complaint on the grounds that plaintiff Michael Gouskos did not sustain a serious injurj, as defined in Insurance Law 9 5 102 (d) as a result of the subject accident is denied. [* 2] Gouskos v. Cohen Index No.: 31499/2009 Page 2 of 5 ORDERED that counsel for movant shall serve a copy of this Order with Notice of Entry upon counsel for all other parties, pursuant to CPLR §§21133(b)( l), (2) or (3), within thirty (30) days of the date the order is entered and thereafter file the affidavitl(s) of service with the Clerk of the Court This is an action to recover damages for injuries allegedly sustained by plaintiff on June 13, 2008 as well as resulting property damage when their vehicle, operated by plaintiff, was struck in the rear by a vehicle owned and operated by defendant Amy Cohen on Commack Road at or near its intersection with Dorothea Street, in Commack, New York. Plaintiff Michael Gouskos, alleges in his bill of particulars that as a result of said accident he sustained serious injuries including; traumatic injuries to his back and neck including Central Posterior Disc Herniation at L4-L5 and L5-S1, both encro;xhing upon the Ventral Aspect of the Thecal Sac, with Bilateral-Sub S 1 Lumbar Radiculopathy, Lumber Derangement, with sprain and strain of the Lumbar Spine with pain, spasms, exacerbation of pain, limitation of motion, loss of function and use with damage to the underlying muscles, tendons, ligaments, fascia, soft tissues, blood vessels, capillaries and nerves in and about the injury site. Further, plaintiff claims posterior disc bulges at the C2-C3 and C3-C4 favoring the right sidle and encroaching upon the Ventral Aspect of the Thecal Sac, Posterior Disc Bulges a! C4-C5, C5-C6, encroaching upon the Ventral Aspect of the Thecal Sac, with Cerviocogenic Hea,daches and associated cognitive impairment, with Cervical Radiculopathy with myofascial pain, Cervical Derangement with sprain and strain of the Cervical Spine, with pain, spasms, exacerbation of pain, limitation of motion, loss of function and use with damage to the underlying muscles, tendons, ligaments, fascia, soft tissues, blood vessels, capillaries and nerves in or about the injury site. In addition, plaintiff claims Posterior Disc Bulge at T10-T1 1 with impression on the ventral aspect of the Thecal Sac, Thoracic Derangement with sprain and strain of the thoracic spine, Thoracic Myalgia, with pain, spasms, exacerbation of pain on motion, limitation of motion, loss of function and use with damage to the underlying muscles, tendons, ligaments, fascia, soft tissue, blood vessels, capillaries and nerves in and about the injury site. In addition, plaintiff alleges that following the subject accident, he was confined to bed and home for a period of 26 weeks except to attend employment or to obtain medical treatment, At the time of the accident, plaintiff was employed in IT project management at MSC Industrial Supply Company. Plaintiff also allege that he sustained a serious injuries resulting in significant disfigurement, permanent loss of a body function or part, arid a medically determined injury that preventing plaintiff form substantially all material aspects which constitute his actual and customary daily activities for a period exceeding 90 days form the date, of the occurrence as well as an economic loss greater then basic economic loss as defined i n Insurance Law 5 5 102 (a). Plaintiff s asserts in his affidavit that almost three years following the accident, he still experiences daily severe low back pain, intermittent neck pain and that, as a result, he is unable to participate in his usual physical activities including housework, carrying heavy things, construction and renovation projects, gardening and walking for long distances. According to the plaintiff, he takes pain medication daily to alleviate the pain from the injuries he received in the June 13, 2008 accident. He further states that he was confined to his home other than for work and for medical [* 3] Gouskos v. Cohen Index No.: 3149912009 Page 3 of 5 appointments for a period of approximately six months following the accident. Defendant now moves for summary judgment in her favor dismissing the first cause of action of the complaint on behalf of plaintiff on the grounds that plaintiff did not sustain a serious injury as defined in Insurance Law 0 5102 (d) as a result of the subject accident. In support of his motion, defendant submits the summons and complaint; defendant s answer; plaintiffs bill of particulars; the deposition transcript of plaintiff; the affirmed report dated January 14,201 1 of defendant s examining orthopedist, Vartkes Khachadurian M.D. based upon an examination of plaintiff on said date; the affirmed report dated May 5, 201 1 of defendant s examining radiologist Dr. Melissa Sapan Cohn, based on si review of plaintiffs cervical spine MRI s performed in September 4,2008. Insurance Law t 5 102 (d) defines serious injury as a personal injury which results in j death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent ccinsequential 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 cons1:itute 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. In order to recover under the permanent loss of use category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system Qberly v Bangs Ambulance Inc., 96 NY2d 295). To prove the extent or degree of physical limiiation with respect to the permanent consequential limitation of use of a body organ or member or significant limitation of use of a 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 of the plaintiff must be provided or there must be a sufficient description of the qualitative nature of plaintiffs limitations, with an objective basis, correlating p laintiff s limitations to the normal function, purpose and use of the body part bee, Toure v Avk Rent A Car System, Inc., 98 NY2cL 345; Mejia v DeRose, 35 AD3d 407). It is for the court to determine in the first instance whether a prima facie showing of serious injury has been made out (see, Tipping-Cestari v Kilhennjv, 174 AD2d 663). The initial burden is on the defendant to present evidence, in competent form, showing that the plaintiff has no cause of action (Rodriguez v Coldstein, 182 AD2d 396). Once defendant has met the burden, plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists (Caddy v Eyler, 79 NY2d 955). Such proof, in order to be in a competent or admissible form, shall consist of affidavits or affirmations (Pagan0 v Kingsbury, 182 AD2d 268). The proof must be viewed in a light most favorable to the nonmoving party, here, the plaintiff (Cammarere v Villanova, 166 AD2d 760). Here, defendant has failed to established his prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff did not sustain a serio us injury within the meaning of Insurance Law 5 5 102 (d) as a result of the subject accidlznt (see, (Siege1v Sumaliyev, 46 AD3d [* 4] Gouskos v. Cohen Index No. : 31499/2009 Page 4 of5 666; Lea v Cucuzza, 43 AD3d 882). Plaintiffs chiropractcir, Dr. Richard Block performed rang,e of motion testing using a Dual Inclinometer which measured the range of motion and determined that the plaintiff had range of motion deficits in multiple areas. In addition, Dr. Block performed the following additional tests; Yeoman s, Maximum Cervical Compression, Distraction and Kemp s Standing all of which showed a reduction in plaintiffs range of motion. In addition, Dr. Sawey A. Harhash, prepared a comprehensive report wherein, inter (alia,he indicates that, based upon objective and subjective tests he conducted, his opinicin is that there is a causal relationship between the injuries sustained by the plaintiff and the motoi?vehicle accident of June 13, 2008. In addition, Dr. John Himelfarb, reviewed and reported on the plaintiff s MRI indicating that plaintiff suffered disc herniation at the L-4-5 level as well as the L5- S 1 level. Further, in August of 20 1 1, Dr. Block, plaintiffs chiropractor indicated that the plaintiffs injuries are producing long term pain and permanent disability which precludes the plaintiff from performing his usual household tasks and everyday activities due to severe neck and back pain is continuing. Plaintiffs physician, Dr. Harhash describes plaintiffs injury as serioiss and his prognosis for recovery as guarded . Although defendant s physician Dr. Khachadurian reported that when he examined plaintiff in January 201 1, three and one half years after the accident, he found that plaintiffs range of motion testing results for his shoulders, elbows, wrists, hands, hips, cervical spine and thoracolumbar spine, when compared with normal measurements, were all normal, the range of motion tests performed by Dr. Khachadurian were performt:d without the use of a subjective measurement or test method such as a Dual Inclinometer or Goniometer. Accordingly, the tests performed by Dr. Khachadurian were subjective rather than objective. Also conclusory is Dr. Melissa Sapan Cohn s evaluation of plaintiffs 2008 MRI wherein, without independent support or information, she determined that plaintiffs disc issues degenerative and are not related to trauma . Where a physician fails to specify what objective tests were used to reach his conclusions, it is a fatal flaw to defendants summary judgment motion w e n if the physician s report sets forth measurements for the tested range of motion (see, Charley v. Goss, 54 A.D.3d 569, e.g. Ofman v. Singh, 27 A.D.3d 284; Rivera v. Benaroti, 29 A.D.3d 340). Lastly, defendant s counsel, in his reply papers, argues that plaintiffs complaint should be dismissed because plaintiff failed to adequately address a prior motor vehicle incident . Defendant is incorrect in this regard. Plaintiffs chiropractor affirms that prior to the accident on June 13, 2008, Mr. Gouskos had no recent history of trauma, complaints of pain, limitation of motion or loss of function in the lumbar and cervical spine. That his lumbar and cervical complaints are solely caused by and as a result of the subject accident . In addition, Dr. Block affirms with reasonable medical certainty that the injuries he treated the plaintiff for are causally related to the automobile accident as was described ... to hiin. Dr. Harhash s report also indicates that there is no significant past medical history and that there was a causal relationship between the June 13, 2008 accident and the plaintiffs injuries. Clearly, each of the health professionals that treated the defendant inquired as to his medical history and determined that same was insignificant with regard to the injuries that were presented to them by the plaintiff. Although defendant claims that plaintiffs failure to refute the pre-existing injury mandates dismissal of the plaintiffs case, defendant has submitted no evidence of any such injury. Plaintiff testified at his deposition that he [* 5] Gouskos v. Cohen Index No.: 31499/2009 Page 5 o 5 f had not had any treatment for the earlier accident which took place sometime during the early 1980 s,other than for short period of time immediately foll owingth#at accident. Without further documentary evidence, defendant s unsupported allegations that the motor vehicle accident plaintiff was involved in approximately 25 years ago is the cause of plaintiffs injuries, is insufficient to shift the burden to the plaintiff. (clf., Franchini v Palmieri, 1 N.Y.3d 536.) Defendant has failed to to present evidence, in competent form, showing that the plaintiff has no cause of action (Rodriguez v Goldstein, 182 AD2d 396, 582 NYS2d 395, 396 [Ist Dept 19921). Viewing the defendant s submissions in a light most favorable to the nonmoving party, here, the plaintiff, defendant has failed to meet its burden of showing that a serious injury does not exist. (Cammarere v Villanova, 166 AD2d 760). Accordingly, the defendant s motion for summary judgment is denied in its entirety. / Dated: (1110 Iv RIVERHE~D, NY NON-FINAL DISPOSITI DN

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