Dowling v Valeus

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Dowling v Valeus 2012 NY Slip Op 31805(U) July 3, 2012 Sup Ct, Suffolk County Docket Number: 10-9549 Judge: Thomas F. Whelan 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 SllORl fURM ORl)[R 10-9549 SUPREME COURT - STATE OF NEW YORK IAS. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE 3-2-12 (#002) MOTION DATE 2-23-121#003) MOTION DATE 4-13-12 (#004) AD! DATE 4-13-12 Mot. Seq, # 002 - MG # 003 - MD # 004 - XMD ---------------------------------------------------------------)( MARY ELIZABETH DOWLING, Plaintin~ JAY D. UMANS, ESQ. Attorney for Plaintiff 90 Merrick A venue, Fi fth Floor East Meadow, New York 11554 - against DON FRED V ALEUS, Defendant. MARTYN, Tor'iER & MARTYN, ESQS. Attorney for Defendant 330 Old Country Road., Suite 21] Mineola, New York 11501 ---------------------------------------------------------------)( Upon the following papers numbered I to ~ read on, this motion for summary judgment: this motion to strike defendant '5 answer: and this cross motion for summary judgment; Notice of Motion! Order to Show Cause and supporting papers I - 10; II - 21 , Notice of Cross Motion and SupP0l1ing papers 22 - 42 ,Answering Affidavits and supporting papers 43 - 48: ReplyingAffidavitsand supporting papers 49 - 50; Other _; (dud "tk, lieal;ligeOL1l1~e1 ilL,mJ'f'tll! llIid oppo.\ed hi tile lliotiolL) it is. ORDERED that the motion (#002) by defendant Donfred Valeus seeking summary judgment dismissmg plaintiffs complaint, the motion (#003) by plaintiff Mary Dowling seeking to strike defendant's answer, and the cross motion (#004) by plaintiff Mary Dowling seeking partial summary judgment in her favor on the issue of whether she sustained a "serious injury" within the meaning of . Insurance Law § 5102(d) herehy are consolidated for the purposes of this determination: and it is . ORDERED that the motion by defendant Donfrcd Valeus seeking summary judgment dismissing plaintiiT's complaint on the ground that she failed to sustain a "serious injury" \vithin the meaning of the Insurance Law is granted; and it is ORDERED that the motion by plaintiff Mary Dowling seeking to strike defendant's answer is denied, as moot; and it is further [* 2] Do\\:]ing v Yak:us Index No. 10-9549 Page No.2 ORDERED that the cross motion by plallltilT Mary Dowling seeking partial summary judgment in her l~lVoron the issue ofv'>'!1ethcr she sustained Law ~ 51 02( d) is de11led. a "se!"101lSinjury" within the mei.l1lll1gof Insurance PlaintdTMary Dowling commenced this action to recover damages IlJr injuries she allegedly sustained as a l'(.:sult ora motor vehicle accident that occurred in front ofthc premIses kno\vn as Eddie's 241'Jour Towmg Scrvlce, located al 924 Long Island Avenue, approxlll1ately 400 leet II'om its Intersection with Carll's Path in the TOv1inof Babylon on March 23, 2009. /\t the rime of the accident, plaintilTwas a pedestrian standmg on the sidcwalk in front of the aforementioned premises \""hen she was struck in the right leg by the rear or the vehicle operated and o\vned by defendant Donfn.::d VaJcus while it was in the process 0 f reversing. Plailltin~ by her bill or particulars, alleges, among other things, that she sustained various personal injuries as a result ofthe subject accident. lI1cluding herniatcd dISCS at levels C4 through C7; bulging discs at level C5/C6 and levels L I through L5; cervical radiculopathy; and bilateral shoulder strain. Plainti IT further alleges that as a result of the injuries she sustained in the aCCIdent she \vas confined to her bed and home for several months. Defendant now moves for summary judgment on the basis that the injuries plaintifr alleges to have sustained as a result of the subject accident rail to meCl the "serious injury" threshold requircl1ll:nt of 0 51 02(d) of the Insurance Law, In support of the motion, defendant submits copies of the pleadings, plamtiff's deposition transcript, and the sworn medical reports of Dr Isaac Cohen and Dr. Mathew Chacko. At defendant's request, Dr. Cohen conducted an independent orthopedic cxamination or plainti IT and Dr. Chacko conducted an independent neurological examination of plaintiff in August 20] 1. Plaintiff cross-moves for summary j lIdgment on the ground that she sustained a "serious inj ury" within the meaning or the Insurance I,aw as a result of the subject accident. [n particular. plaintilf asserts that shc sustained injuries within the "limitations of use" categories and the "901180" catcgory of thc Insurance J ,aw. In support of the motion, plaintiff submits copIes of the pleadings, her own deposition transcript and aftidaVlt, an uncerlilied copy of the police accident report, the s\vorn medical reports or Dr. Jamcs Sarno, Dr. Harold rice, Dr. Arthur Thompson, and Dr. John Himell~lrb. Plaintiff also submits unsworn copies of her phYSIcal therapy records and uncertif'icd copies of her medIcal records. On a motion for summary judgment the movant bears the lllitial burden and must tender evidence sufficient to eliminate all material issues 01' 1~lct(Wiflegrad v New York lJl1iv. Med. etr" 64 NY2cl 851. 487 NYS2d 31 () I J985 J). Once the movant meets thlS burden, the burden thcn Sltlfts to the 0pposlllg party to demonstrate that there arc material issucs of fact; merc conclusions and ul1substantwted allegations arc msurtlclent to raise any triable issues of tilct (see ZucJ,:eI'111aU v City of New York, 49 NY2d 557, 427 NYS2d 595 l1980). As the court's functIOn on such a motion is to determine whether Issues or Llct eXIS!, not to resolve issues of fact or to determine matters ofcredibdity. the lilcts alleged by the opposing party and aIlllll'crences thaI may be drawn arc to be acccpted as true (see /)oize v Holiday lUll Ronkonkoma, 6 ;\J)3d 571, 774 NYS2d 792 [2e1Dept 2004); Roth v Barreto, 289 AD2d 557, 735 NYS2e1 197 r2e1Dcr1 200 II). It has long been established that the "legislatlve intent underlymg the No-Fault Law 'vvasto weed out r!"lvol01ls claims ancllimlt recovery to signd'icant mjuries" (lJi~fell! Green, 84 NY2d 795, 798, 622 [* 3] Dow1Jng v Yaleus lndex No. 10-9549 Page No. ] NYS2d GOO L1995:J; see Toure v Avis Rellt A Car 5)!s.. 98 NY2d 345, 746 NYS2d 865 [20(21). Therefore. the determination of whether or not J. plaintifClws sustall1ed a "serious injury" is to be mndc by the court in the first lllstance (sce Licari v Elliott, 57 NY2d 2]0, 455 NYS2d 57(J 119821; P01"ClillO v LeltnwfI, 255 AD2d 430. ('8U NYS2d 590 [2d Oepl 19881; No/afl v F'ord, 100 AU2d 579. 473 NYS2d 516 [2d Depl 19841_ u/I" 64 NY2d 68 L 485 NYS2d 526 [19841J. Tnsurance Law ~ 5102 (c1)defines a "senolls injur.y" os "u personal injury wh](:h resulls in death; dismemberment:. significant disJigurement; a fracture; loss of a fetus; permanent loss of use or a body organ, member, function or system; permanent consequential !lmitation of use ora hody organ or member; significant !imltation of use ofa body function or system, or a medically determined injury or impairment ol' cl non-permanent nature which prevents the injured person from performing substantially all ol'the material acts whIch constitute sueh person's usual and customary daily actlvnics for nolless than ninety days during the one hundred eighty days immediately following the OCCLllTcnCe orthe injury or impairment." A plainti ff claiming a significant limitation of use of a hody function or system must substantiate his or her complaints \vith objective medical evidence showing the extent or degree of the limitation caused by thc injury and its duration (see Ferraro v Ridge Car Serv., 49 AD]d 498, 854 NYS2d 408 l.2d Dept2008]; Mejia v DeRose, 35 AD3d 407, 825 NYS2d 772 [2d Dept 2006J; Laruffa v Ylli Millg Lall, 32 AD3d 996, 821 NYS2d 642 [2d Dept 2006]; Kearse v New York Ci(v fr. Autlt., 16 AD3d 45, 789 NYS2d 281 [2d Dept 2005]). Whether a limitation of use or function is 'significant' or 'eonscquentlal' (i.e. important .. j, relates to medical signiticance and involves a comparative determination of the degree or qualitative nature of an inJury based on the normal J1..lnction, purpose and use ol'the body part" (Df~fe/ v Green. supra at 798). To prove the extent or degree ofphysieallimitation with respect to the "limitations of lIse" categories. either objective evidence oCthe extent, percentage or degree or the limitation or Joss or range of' Illation and its duration based on a recent examination of the plaintilT lllust be provided or there must be a sufficient description of the "qual1tatlvc natul'c" ofpJaintifrs limitations, with 3n objective basis, correlating pJaintin"s limitations to the normal function. purpose and use of'lhe hody part (see Perl v MeIJer, 18 NY3d 208, 936 NYS2d 655 [2011 J; Toure v Allis Refit A Car ,"'>~v)'tems, IIIC., supru at 350, see also Valera I'SingiJ, 89 ;\D]d n9, 923 NYS2d 530 12d Dept 2011 j:Rovelo v Voh:J'. 8] /\D3d 1034,921 NYS2d 322 12d Dept 20 111) A minor, mild or sllght limitation of use is considered insigndieant within the meaning of the statute (see Licari v Elliott, 57 NY2d 455 NYS2d 570 11982'1). I10wevel", eVIdence of contemporaneous range or motion limItations IS not a prerequisite to recovery (.It)!' Perl" Melter. supra: PauliI/O v Rodriguez, 91 AD3d 559, 937 NYS2d 198 11st Dcpt no, 20121). Initially. the Court notes that the uncertitiec! copies ofplall1tilT's medical records and the physic,d therapy I'eeords submitted by plall1tilT in support or her cross motion were no! conSIdered in this detcn1llnatlon. bec,luse they arc not affirmed and, therefore, lack probative vulue (see C PLR 2106; Ly v HolloJj!ay, 60 AD3d 1006,876 NYS2d 48212d Dept 2009]. Casa v Mol1tero. 48 AD3d728. 85] N'{S2d 358 r2d Dcpt 200?q; Gra.\"so II Allgerami, 79 NY2d 813, 580 NYS2J 178 11991 ]). l3ased upon the adduced evidence. plallltilTJ~I1Jed to establish. prima hleie. that she sustained (\ serious Injury \\'ithin the mealllllg of 0 5102(d) orthe !nsurance I,aw as a result of the subject accident [* 4] Dowling v Valcus Index No.1 0-9549 Page No, 4 (see T(Jure v A vis Ren/ A Car S)'s.. SIIP"O; Gaddy v 1:)ler. 79 NY2d 955. Sg2 N YS2cll)()() 11992"1, Scheer v Koubeli, 70 N Y2d 6n, 51 g NYS2d 788 11987]). PlaintllT has submitted conllicting medical evidence in support of her motion to establish that she sustained a senous Injury as D_ result or the subject coll1sion (see Ocasio vZorhas, 14 J\D3d 499, 789 NYS2d 16G 1.2d Dept 2005]). Dr. rhompson, who began treating pluinliiTone week after the subject accident. states in his lnedical report that plainlUf complamed of pain in her left shoulder and thoracolumbosacral spmc, and that he diagnosed her \viLh cervical derangement, bilateral shoulder strain and Impingement tcndonpathy. 10\-",' back disc syndrome and strain, and right knee contusion. Howcver, Dr Thompson also slates that plaintilfcxhibited '·good" range of motion, rull extension and "good" l-lcxion in her spine, and th,lt she has degenerative and osteoarthritic changes m her right knee and lumbar spine. He further states that the pam in plamtiffs lumbar spine is activity related and is not radicular in nature, and that her convalescent course \vas complicated by gall bladder disease, which required surgery and removal. In his report, Dr. Sarno, who began treating plaintilT approxImately Ii ve months aner the subject accident, stales that plaintifThas limited range ormation in her cervical and lumbar regions, that she has mod crate limitation of motion in her left shoulder, and that she docs not have any gross muscle weakness_ Dr. Sarno states that plaintifThas cervical and lumbar osteoarthritis, cervical stenosis, and Ill~lIral foruminal encroachment at levels C3 through C6, left side. In addition, Dr. Sarno stJ.tcs that the degenerative changes observed in plaintiffs cervical and lumbar regions of her spme were asymptomatic prior to the subject accident, and that the subject accident aggravated those pre-existing cOIlliltions. Dr Sarno states that the injUries plaintifTsustained in prior accidents were unrelatcd to the arcas of her body that were injured in the subject accident, and that her symptomology is permanent due to her age and unrelated medical conditions. although the pain and limitations in her spine may increase and decrease at times. Dr. Sarno further states that pla1l1tifThas suffered tl'om scwtie nerve pam problems in her back and lower cxtremity in the past, but that such problems have been asymptomatic_ 1-lowever, Dr. Sarno has not provided any ob,iectivc medical evidence to substantiate his assertion that plaintifr\vas asymptomatic prior to the subject collision (see S'eck v Minigreen Hacking Corp, 51 /\D3d 608, 863 NYS2d 218 l2d Dept 200g 1)_ Furthermore, contrary to plaintiffs assertions, her medical evidence ['ell d k to give any objective basis for Dr Sarno's conclusion that her alleged limitations are the result of Lhe subject accident, rather than hom her pre-exist1l1g degenera1Jve or osteoarthntic conditions in her lumbar spinc (.I'eef\lieves v Cas/io//o, 74 J\D3d 535, 902 NYS2d 91 [1 st Dept 20101; Singh v Ci~v (~fNew York, 71 AD3d 1121. g9g NYS2d 218 1.ld Dcpt 20 I0-): Casimir v Bailey, 70 i\D3d 994, 896 NYS2d 121 12d Dept 2(10); MOIl/gomery v Pella, 19 J\D3d 288, 798 NYS2d 17 1.1 Dept 20(51). st In additJOn, plmntilTs submission oCthe medical reports oj' Dr. rice, who reviewed the magnetic resonancc Imaging ("MR]") film ofplall1tifr's cervical spinc performed on June 22, 2009, and Dr 1hmell'elrb, who reviewed the MRI lilm oi'plaintitrs lumbar spine pcrfurmec1 Oil April 29, 2009, n,likd lO establish that pl,llntlfTsustained a serious inJury within lhe mcaning of the Insurance I.(\\V as a result ui' the suh,iect collIsion (see Pommel! JI Perez. 4 NY3d 566, 797 NYS2d 380 12(051). I)r. llil11cl!~\l'b in hiS medical report states thal plal11tifrsuftcrs from hypcrtropillc changes in her cervical spine at levels <-:4 through C7, and thaI she sustained disc bulges and herniations to her cervical spl11e. Dr. Tice in 1m mcdic,l! report states that plain tilT sulTers 1)'011'1 discogel11c degeneraLive and osteoarthriLic changes throughout her lumbar spine, right convex lumbar scoliosis, and dISC bulges aL levels L 1 through LA with hypertrophic changes. I lowever, neither Dr. Himclbrb nor Dr. Tice expressed an opinion as to [* 5] Dowling v VaJeus Index No. 10-9549 Pug~ NO.5 causatIOn and, therefore. the reports are insur!icicnt to cSlabllsh lhat the dIsc bulges and herniations were the result oflhe subject accident (see Nil:VltS v On·lillo. supra: Gibbs v /lee Hong, 63 ADjd 559. 881 NYS2d 415 [I 5t Depl 2009]: Collins v Stolle. 8 AD3d 32 I, 778 NYS2d 79 [2d OCpl 2004]). The mere existence or herniated or bulging discs is not evidence of a serious injury in the absence of objcctive evidence of the extent ol"the alleged physicallimnations resulting from the disc injury {see KIIOX II Leul1iJulll. 65 AD3d 6 I5,884 NYS2d 17I pd Dept 2009]: Casco I' Cocc!lio/t,. 62 A!)Jd 640, g78 NYS2d 12d Dcpt20091J. As to plainti rc s "q01l80" claim. the Court notes thaI a plaintiff must submit competent medical evidence that the injuries she allegedly sustained in the subject accident rendered her unable to perf0n11 suhstantially all of her daily activities lor not less than 90 days of the first 180 days suhsequent to the subject accident (see Ly v /lolloway, 60 i\D3d 1006.876 NYS2d 482 [2d Dept 2009.1). Aside from plaintin~s own deposition testimony, wherein she states that she is unable to walk long distances. garden, volunteer at her church, und that she has to make more than one trip per week into her son's business to do his bookkeeping, plaintitr has failed to submit any competent medical evidence demonstrating lhat she was restricted from performing such tasks or heavy lifting (see e.g Rasporskaya v New York City Tr. Aut" .. 73 AD3d 727, 899 NYS2d 665 [2d Dcpt 20101). PlaintilTalso has not provided any medical cvidem::e recommending that sbe remain confined 10 her home or bed ror any period of time immediately following the subject accident. Accordingly, plaintiWs cross motion lor summary judgment in her Cavoron the issue of whether she sustained a serious injury withm the meaning of/he Insurance Law is ckmcd. Regarding defendant's motion for summary judgment on the grounds that plainti ITI~lilcdto suslain a serious injury under § 5 I 02(d) of the Insurance Law· as a result orthe subject collision. a derendant seeking summary Judgment on the ground that a plaintirf's neg.ligenee claim is barred under the No-Fault Insurance Law bears the initial burden or establishing a prima facie case th,11the plaintilT did not sustain a "scrious injury" (see TOllre v Avis Rent A Car S)w., SIIPro; Gtrd(~y III~,!ler, 79 NY2d 955.582 NYS2d 990 [1992 I). When a dcfcndunt seckll1g summary judgmcnt based on the lack oj' serious injury relics on the findings orthe defendant's own witnesses, '-those findings must be in admissible form. {such as], aflldavits and affirmations, and not unsworn rcports" to demonslratc entitlement to judgment as a matler or law (Pagallo v Kingsbury. 182 AD2d 268, 270. 587 NYS2d 692 12d Oept 19921). A delcndant may also establish entitlement to summary judgment using the plaint! rr s deposition testimony and medical rcp0l1s and records prepared by the plaintiffs o\\'n physicians (see Fragale v (ieiger, 188 I\D2d 431. 733 NYS2d 901 [2d Dept 2001 [: Grossman I' Wriglrt. 268 AD2d 79. 707 NYS2d 233 12d J)cpt 2000-1: Vignola v Varric!lio. 243 AD2d 464, 662 NYS2d 831 l'2d [kpt 19971: Torres I' Miclreletti. 208 ;\J)2d 519.616 NYS2d 1006 12l! Dcpt 19941). Once a defendant has tllet this burden. the plaintilT must then submit objective Lllldadmissible proof 01" nature and degree or the the alleged injury in order to meet thl' threshold ortbe stalutory standard lor ""serious lllJury" under New York's No-Faull Insurancl: [.aw {see Dllfell' Greell. SIIpm; Tornabelle v Pall'lew.,·ki. 305 I\D2d 1025. 758 NYS2d 593 14th Dcpt 2003 [; Pagallo 11 Killg~}burJl.. 1'UI}!"u}. Here, dc!cndant hllS established. prima facie. his entitlcment to judgment as <.l malleI' or law that plaimilTdiJ not sustain a serious injury within the mCLllllllg the Insurance I,i:lwas a result orthe of subject collision (see Toure v A vis Rent A Cur .\)s .. Slfl}f"(f: G(ld{~y Eyler .. \lIP/"{{: Ogill.~ky11 v [* 6] Dowling v Valcus Index No. 10-9549 Page No.6 85 AD3d 990. 928 NYS2d 638 l2d Dcpt 20111: ;1/-Khih:wi v Turmall. 82 AD3d 1021. 919 NYS2d 361 12d Oept 2011]). Delendant"s orthopedist. Dr. Cohen. states in his medical report that an examination or plaimirr reveals that despite the noted limitations in her spinal range or motion. that she has full range ormolion in her cervical and thoracalumbosacral spine. and Ihm those limitations were degenerative in natur~ unu t.:onsiSlent \.vithher age. Dr. Cohen stal~s that palpation orth;,; paravertebral muscles throughout plaintiffs spine did nOI reveal ally cvidence ofmusclc spasm or Irigger poinls. Ihut the struight leg raising test was negative bilateral1y, and that her gait is normal Dr. Cohen states that plaintilThas full range of motion in her shoulders and nght knee, and that there arc no sIgns or impingement. Dr. Cohen opines that the softtisslie contusions that plaintilfsllstaincd as a result urthe suhject accident have resolved. that her cxamin<ltion is unremarkable. that there arc no objective lindings oran orthopedic disability. and that her ranges of motion arc "age-appropriate" and within normal limits. Raspor.<ikllYII, Llk<.:wlse.defendant's neurologist, Dr. Chacko. states in his medical report that an examination ofplaintilTrevcals that shc has full range or motion in her spine. thaI there were no muscle spasms upon palpation of the paraspll1almuscles. and that her motor examination is normal. Dr. Chacko opines that the cervical and lumbar strains that plaintilTsustained as a result of the subject accident have resolved. that there is no muscle weakness. renex asymmetry, or Joeal sensory changes related to the accident, and that her diminished sensation in the left superficial radial nerve distribution and weakness of hand grip arc pre-existing conditions, and are unrelated to the subject accident. Dr. Chacko notes that although he observed limitations in plaintin-s cervical range ormation. significant degenerative changes in her spine contributed to such limitations. Dr. Chacko furthcr states that plaintiff does not exhibit any neurological disability as a result of the subject accident, and that she is capable of performing her nonnal daily living activities. In addition, the limitations noted by Dr. Cohen and Dr. Chacko during theif examinations of plainti ITwere not signi Iicant within the meaning of the Insurance Law (see Licari v Elliott. supra; Johnson v Cristino. 91 AD3d 604. 936 NYS2d 275 [2d Dept 2012J: (.f McLaughlin v Rizzo. 38 AD3d 85G, 832 NYS2d 66612d Dcpt2007J). Moreover, the medical evidence submitted by plaintiffin her cross mOllon is lllsufficient to delent defendant"s prima l~leieshowll1g. Accordingly. defendant's motion Ic))" summary .Judgment dismissing plaintiffs complaint is granted. I laving determined thar plaintilT bilcdto establish that she sustained a serious injllry \vithin the meaning of the J nsurance Law and that dcl"endant cstabllshccl that plaintifr did 110tsustain a serillus injury within the meaning of the Insurance Law as a result oCthe subject collision. plaintiff's motion to strike dclcndant's answer is rendered moot. and is dl..'niedas such. / r Drl!cd: I/'J:/~ I ' . TIIOM!\S F. WIIEL!\N . .I.S.L'.

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