Klushin v Lakhaney

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Klushin v Lakhaney 2012 NY Slip Op 31533(U) May 31, 2012 Supreme Court, Nassau County Docket Number: 019510/10 Judge: Jeffrey S. Brown 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] SHORT FORM ORDER SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF NASSAU PRE S E NT: HON. JEFFREY S. BROWN JUSTICE TRiAL/IAS PART 17 HENRY R. KLUSHIN, JR. Plaintiff, Index No. 019510/10 -against - Mot. Seq. # Motion Date 2. 24. Submit Date 5. 11.12 AL Y LAKHANEY and AHMED LAKHANEY, Defendants. The following papers were read on this motion: Papers Numbered Notice of Motion , Affidavits (Affrmations), Exhibits Annexed......................... Answering Affidavit ............................ ......... Reply Affidavit...................................................................................................... Upon the foregoing papers , the defendant' s motion seeking an order granting summary , on the judgment pursuant to CPLR 93212 and dismissal of the complaint of the plaintiff serious injury " threshold requirement of grounds that the plaintiffs injuries do not satisfy the " Insurance Law 9 51 02 (d) is determined as hereinafter provided. The plaintiff commenced this lawsuit by fiing a summons and complaint wherein the , which occurred on plaintiff claimed personal injuries resulting from a motor vehicle accident s answer. January 10 2009. Issue was then joined by service of the defendant' The incident occurred at the intersection of Herricks Road and Jericho Turnpike , Garden City, New York when the vehicle in which plaintiff was driving was struck in the rear by the vehicle in which defendant was driving. [* 2] In a personal injury action , a summar judgment motion seeking to dismiss the complaint requires that a defendant establish a prima facie case that the plaintiff did not sustain a serious v. Eyler 79 N. Y.2d 955 (1992)). (Gaddy injury within the meaning ofInsurance Law 9 5102(d) Upon such a showing, it becomes incumbent on the plaintiff to come forward with sufficient evidence , in admissible form , to demonstrate the existence of a question of fact on the issue (Id). The court must then decide whether the plaintiff has established a prima facie case of sustaining v. Ellot 57 N. Y.2d 230 (1983)). (Licari a serious injur In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendant' s examining physicians or the unsworn 182 A.D. 2d 268 (2nd v. Kingsbury, (see, Pagano reports ofthe plaintiffs examining physicians Dept. 1992)). However , unlike the movant' s proof, unsworn reports of the plaintiffs examining (Grasso doctors or chiropractors are not suffcient to defeat a motion for summary judgment A ngerami 79 N. Y.2d 813 (1991)). Essentially, in order to satisfy the statutory serious injury threshold requirement , the legislature requires objective proof of a plaintiffs injury. The Cour of Appeals in Toure v. Avis 98 N. Y.2d 345 (2002), stated that a plaintiffs proof of injury must be Rent-a- Car Systems, supported by objective medical evidence, such as sworn MRI and CT scan tests. However , these sworn tests must be paired with the doctor s observations during the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if both the plaintiff and v. Vasquez 301 A.D.2d 438 (1st Dept. 2003)). (see, Gonzalez the defendant rely on those reports Conversely, even where there is ample proof of a plaintiffs injury, certain factors may nonetheless override a plaintiffs objective medical proof of limitations and permit dismissal of a plaintiffs complaint. Specifically, additional contributing factors such as a gap in treatment , an intervening medical problem or a pre-existing condition would interrupt the chain of causation v. Perez 4 N. Y.3d 566 (2005)). (Pommels between the accident and the claimed injury Insurance Law 951 02( d) defines serious injur to mean a personal injury which results in: (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) 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 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 constitute such person s usual and customar daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, 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 injury v. Ellot 67 N. Y.2d 230 (1982)). A minor , mild or Licari v. Eyler supra; (Gaddy or condition [* 3] v. Ellot (Licari slight limitation wil be deemed insignificant within the meaning of the statute A claim raised under the " permanent consequential limitation of use of a body organ or supra). member " or " significant limitation of use of a body function or system " categories , can be made by an expert' s designation of a numeric percentage of a plaintiffs loss of motion , in order to In addition , an v. Avis , supra). (see, Toure prove the extent or degree of the physical limitation expert' s qualitative assessment of a plaintiffs condition is also probative , provided: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiffs limitation to the normal function , purpose and use of the affected body organ , member , function or system (Id). Finally, to prevail under the " medically determined injury or impairment of a non- permanent nature 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 occurrence of the injury or impairment" category, a plaintiff must demonstrate through competent , objective proof a " medically determined injury or impairment of a non- permanent nature which would have v. Dupuis 287 A.D.2d 187 activities (Monk caused the alleged limitations on the plaintiffs daily (3rd Dept. 2001)). A curtailment of the plaintiffs usual activities must be " to a great extent at 236). Under this category v. Ellott , supra curtailment" (Licari rather than some slight specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff 10 Misc. 3d 900 (Sup. Ct. , NY Cty. , 2005)). v. Ford Motor Credit Co. (Gomez qualifies With these guidelines in mind , the court wil turn to the merits of the defendant' s motion. In support of their motion , the defendants submit the following: the summons and verified complaint; verified answer with demands; verified bil of particulars; deposition testimony of plaintiff; and independent medical examination report of Dr. Richard Weiss. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law , tendering suffcient evidence to eliminate any material issues of fact from the case (see Twentieth City of New York 49 NY2d 557 562; Silman Zuckerman , 404). Failure to make such Century-Fox Film Corp. 3 NY2d 395 showing requires denial of the motion , regardless of the sufficiency of the Wiliams , 84 (Matter of Redemption Church of Christ opposing papers 43 AD2d 968 , 969). Manion Realty, AD2d 648 , 649; Greenberg Winegradv. NY Univ. Med. Ctr. 64 N. Y.2d 851 853 (N. Y. 1985) As a result of the accident plaintiff alleges to have sustained the following injuries as per his verified bil of pariculars: neck pain; small central disc herniations at the C- C5 and C5, with mild impingement on the ventral subarachnoid space; foraminal narrowing at the C3through C5- C6 levels. He also sustained injuries to his skin , muscle , tissue , fascia , nerves and musculature in and about the affected areas and pars , as well as mental anguish , loss of enjoyment of life and severe shock to his nerves and nervous system. [* 4] Furthermore , as per the bill of particulars , plaintiff was not confined to bed for any period of time and was confined to the home for a period of approximately two (2) weeks. Plaintiff claims that she sustained a serious injury as defined in the Insurance Law Section she was disabled for a period in excess of 90 out of the first 180 days following the occurrence; that she sustained a 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 organ or member; significant limitation of use of a body function or system. 51 02( d) in that The movant relies on the orthopedic medical evaluation of Dr. Richard Weiss dated September 22 2011 in support of the application for summary judgment. With respect to the cervical spine , Dr. Weiss found the following: no spasm in the trapezil or paracervical muscles. Range of motion tests performed by a goniometer were all found to be in the normal range and the testing elicited no complaint of pain. No tenderness was elicited on palpation of the paracervical muscles. Spurling s maneuver failed to elicit any sign of radiculopathy to the shoulders bilaterally. Motor strength was 5/5 in the upper extremities. Sensation was normal. Reflexes were 2+ Dr. Weiss ' impression after performing the physical examination upon plaintiff and the history as reported by plaintiff, if correct , was a resolved cervical sprain/strain. Futhermore , he concluded that there was no objective evidence of any disability. Based on the admissible evidence, the court finds that the defendant has established a prima facie case that the plaintiff has not sustained a serious injury within the meaning of Insurance Law 9 51 02 (d), specifically, a 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 organ or member; significant limitation of use of a body function or system; or medically determined injury or impairment of a non- permanent nature which 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 immediately following the occurrence of the injury or impairment. The burden now shifts to the plaintiff to raise an issue of fact with respect to whether she meets the serious injury threshold requirement. In opposition to the application , the plaintiff submitted the following documentary evidence: affidavit of plaintiff dated April 16 , 2012; affirmation of Philip Burns , D. , dated April 11 , 2012; affrmation of Adam Silvers , M. , dated April 18 , 2012; report of Central Island Physical Medicine and Rehabilitation , PC; dated January 15 , 2009; unsworn report of Central Island Physical Medicine and Rehabilitation PC , dated March 10 2009; MRI report of Next Generation Radiology, dated February 13 2009. [* 5] The court notes that the report of Central Island Physical Medicine and Rehabilitation PC dated March 10 , 2009 was not sworn , therefore , any reference to it by a physician for plaintiff is Haul Truck Rental 216 AD2d Friedman Zerilo 6 AD3d 403; disregarded (see Mahoney 29 AD. 3d 845 815 N. Y.S. 2d 693). v. Kombos, 266; Bycinthe An MRI was conducted by Dr. Silvers at Next Generation MRI on February 13 2009. At the time the MRI was conducted , Dr. Silvers did not duly affirm the accuracy of the test. However , on April 18, 2012 , Dr. Silvers signed an affrmation attesting to the accuracy of the information inscribed on the MRI report. Pursuant to the report , plaintiff stated she sustained a whiplash injury. " The report concludes that the plaintiff suffers from the following: a very small central disc herniation at the C4- C5 level with mild impingement on the ventral subarachnoid space; and a foraminal narowing a the C3- C4 through C5- C6 levels. The court notes that there is no causal link referenced between the accident and the injuries contained in this report. Dr. Philip Bums claims to have treated plaintiff for injuries sustained as a result of the accident until plaintiff reached maximum medical benefit from conservative treatment of his permanent cervical spine injuries as per the doctor s affirmation dated April 11, 2012. He states that he continues to see him on an intermittent basis to help him deal with his neck pain. In reaching his conclusions , he relied on diagnostic fims, reports and records of his contemporaneous medical treatment , diagnostic testing, including MRI films and reports dated February 13 , 2009. Dr. Bums also conducted cervical range of motion tests at the time ofthe incident and recently; in anticipation of litigation , with the use of a goniometer. As a result of this testing he , right side bending, found a decreased range of motion in all planes, including flexion , extension left side bending, and right rotation , left rotation. Dr. Burns concluded that the limitations in plaintiffs spinal range of motion were causally related to the accident herein. He further concludes, based upon review of the MRI, that the herniated discs were traumatically induced and caused by the accident herein. To explain the gap in treatment , plaintiff submits an affdavit which states that he had to stop treating because inter alia, his no- fault benefits ran out. Thus , he was unable to afford Senekis Cab Corp. 55 AD3d 548 549; Francovig Barbecho, (see , Jules continued treatment Robinson 305 AD2d 438). Black 41 AD3d 643; showing prima facie However , despite the fact that the movants did succeed in making a that the plaintiff did not sustain a serious injury pursuant to the Insurance Law , the plaintiff successfully countered this showing with sufficient medical evidence demonstrating the " pursuant to the existence of material issues of fact that she has in fact sustained a " serious injury aforementioned insurance law. The sworn MRI report of the cervical spine constituted suffcient Avis Rent A (see , Toure objective evidence to establish the existence of a bulge or herniation Dr. Burns on plaintiffs Car Sys., Inc. 98 NY2d 345). The range of motion tests performed by [* 6] cervical spine proved positive for a limitation of range of motion. The doctor s observations as to Wright 268 v. (see , Grossman AD. 2d 79). Dr. Burns concludes, in his expert opinion , that the injuries are causally related to actual limitations of movement qualifies as objective evidence the accident and that they are permanent in nature. Based on conflcting motion must be denied (see , Ocasio v. Zorbas 14 AD. 3d medical affdavits , the 499). Accordingly, it is ORDERED , that the application for summary judgment is DENIED. The foregoing constitutes the decision and order of this Court. All applications not specifically addressed herein are denied. Dated: Mineola , New York May 31 , 2012 Y S. BROWN , JSC Attorney for Plaintiff Bornstein & Emanuel , PC 200 Garden City Plaza, Ste. 201 Garden City, NY 11530 516- 227- 3777 Attorney for Defendant Russo Apoznanski & Tambasco 875 Merrick Avenue Westbury, NY 11590 516- 229- 4545 ENTERED JUN 052012 NASSAU COUNTY COUNTY CLERK' S oFFtCe

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