Saadi v Echevarria

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Saadi v Echevarria 2012 NY Slip Op 31873(U) July 10, 2012 Sup Ct, Suffolk County Docket Number: 09-20365 Judge: W. Gerard Asher 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. 09-20365 CAL.No. . 11-01106MV SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK I.A.S. PART 32 - SUFFOLK COUNTY PRESEN T: Hon. W. GERARD ASHER Justice of the Supreme Court MOTION DATE 9-30-1 1 ADJ. DATE -. 12-12-11 Mot. Seq. # 001 - MG;CASEDISP Plaintiff, - against - RAFAEL ECHEVARRIA and TAXI EL UNII ERSAL INC., A. ALI YUSAF, ESQ. 1 14-08 101st Avenue Richmond Hill, New York 1 1419 BAKER, MCEVOY, MORRISSEY & MOSKOVITS, P.C. Attorney for Defendants 330 West 34th Street, 7th Floor New York, New York 10001 Upon the following papers numbered 1 t o L r e a d on this motion for summiiv iudgment ; Notice of Motion/ Order to ; Answering Affidavits and Show Cause and supporting papers 1 - 10 ; Notice of Cross Motion and supporting papers supporting papers 11 - 17 ; Replying Affidavits and supporting papers ; Other -; ( w ) it is, * - ORDERED that this motion by defendants for an order pursuanl to CPLR 32 12 granting summary judgmlmt in their favor dismissing the complaint on the ground that plaint iff did not sustain a serious injury as defined in Insurance Law 0 5102 (d) is granted. This is an action to recover damages for injuries allegedly sustained by plaintiff on June 17,2008 when the driver s side of her vehicle was struck by the front of a vehicle owned by defendant Taxi El Universal, Inc. and operated by defendant Rafael Echevarria. The accident occurred on East 3rd Street at or near its intersection with Drayton Avenue in the Town of Islip, Suffolk County, New York. By her bill of particulars, plainti F alleges that as a result of the subject accident she sustained serious injuries including cervical spine f disc bulge at C3-4 creating impingement on the neural canal; cervical spine disc herniation at C4-5 creating impingement on the neural canal; C5-6 narrowing of the cervical spine; left shoulder rotator cuff tear, impingement syndrome of the left shoulder; and thoracic spine central herniation at T6-7 creating impingement on the neural canal. On the date of the accident, plaintiff was treated at and then released from the emergency room clf Southside Hospital. Plaintiff is also seeking to recover damages lor economic loss in excess of basic economic loss as defined in Insurance Law Q 5 102 (a). In her bill of particulars, plaintiff alleges that as a result of said accident she sustained injuries under the following categories of serious injury pursuant to Insurance Law 0 5 102 (d): permanent loss of use of a organ, member, function or system; permanent consequential limitation of use of a body organ or mem [* 2] Saadi v Echevarria Index No. 09-20365 Page No. 2 signifkant limitation of use of a body function or system; or a medlically determined non-permanent injury or impairment that prevents the performance of substantially all of the miiterial acts of plaintiffs usual and custoniary daily activities for not less than ninety days during the one hundred eighty days immediately following the accident. Defendants now move for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined in Insurance Law 0 5102 (d). Ir,support of the motion, defendants submii:, among other things, the pleadings, plaintiffs bill of particulars, plaintiffs certified deposition transcript, and the affirmed reports of defendants examining orthopedic surgeon, examining neurologist, and examining radiologist. Insurance Law 5 5102 (d) defines serious injury as a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitat [onof 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 pixson 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 (see Inm-ance Law 5 5102 [dJ). 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 (Oberly v Bangs Ambularzce Irzc., 96 NY2d 295,727 NYS2d 378 [2001]). To prove the extent or degree of physical limitation 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 categoi-ies,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 plaintiff must be provided or there must be a sufficient description of the qualitative nature of plaintiffs limitations, with an objective basis, correlating plaintiffs limitat ions to the normal function, purpose and use of the body part (see, Tome v Avis ReiztA Car System, Zizc., 98 NY2d 345,746 NYS2d 865 [2000]; Mejia v DeRose, 35 AD3d 407,825 NYS2d 722 [2d Dept 20061). On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form., that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law 0 5102 (d) (see Esaddy v EyZer, 79 NY2d 955, 582 NYS211990 [1992]; Aklztar v Santos, 57 AD3d 593, 869 NYS2d 220 [2d Dept 2008l). The defendant may satisfy this burden by submitting the plaintiffs own deposition testimonjr and the affirmed medical report of the defendant s own examiningphysician (seeMoore v Edisoiz, 25 AD3d 672,8 I 1 NYS2d 724 [2dDept 20061; Farozm v Kamran, 22 AD3d 458, 802 NYS2d 706 [2d Dept 20051). The failure to make such a primia facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Uiziv. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]; Boone v New York Ct Trans. iy Autlz., 263 AD2d 463,692 NYS2d 731 [2d Dept 19991). Plaintiffs deposition reveals that following the subject accident, she complained to the police at the scene that her entire left side, her left arm, shoulder and leg, were numb. She began treatment with her treating physician a week-and-a-half after the accident. Her treating physician indicated that plaintiff had no problems with her left shoulder. Plaintiff stopped treatment of her neck and mid-back in December 2008 when her treatin:% physician told her that she could continue therapy but that she was not going to get any better. Plaintiff [* 3] Saadi v Echevarria Index No. 09-20365 Page No. 3 stated that she missed only one week of work as a telemarketer fo1:lowing the accident and that her work, hours and pa.y have not changed. Plaintiff explained that currently sitting for 1on;gperiods causes her pain in her entire body. In his affirmed report dated July 29,201 0, defendants examining orthopedic surgeon, Salvatore Corso, M.D. (Dr. Corso), indicated that he performed range of motion testing of plaintiffs cervical spine and thoracolumbar spine using a goniometer. With respect to plaintiff s cervical spine, Dr. Corso s findings were flexion to 50 degrees (50 degrees normal), extension to 60 degrees (60 degrees normal), right and left lateral bending to 45 degrees (45 normal), and right and left rotation to 80 degrees (80 degrees normal). He noted right paraccxvical tenderness and spasm . In addition, Dr. Corso indicated that Soto Hall, Valsalva s, Compression and Spurling tests were all negative. Regarding plaintiffs thoracolumbar spine, he noted maintenance of the normal lumbar lordosis and provided range of motion testing results of flexion to 45 degrees (45 degrees normal), extension to 0 degrees (0 degrees normal), right and left lateral bending to 45 degrees (45 degrees normd), and right and left rotation to 30 degrees (30 degrees normal). He indicated that straight leg raising was negative and performed to 90 degrees bilaterally in the sitting position. Dr. Corso also noted right sided paralumbar tenderness and spasm, but no spasm on palpation. He further indicated that Romberg s, Laseque and Fabere tests were negative. Dr. Corso diagnosed cervical sprain and lumbar sprain, both resolved. He concliided that it was a normal orthopedic examination, that plaintiff h,id no orthopedic disability, and that plaint iff could continue her current occupation without restrictions and perform her normal activities of daily livinp without restrictions. Dr. Corso opined with a reasonable degree cf medical certainty that there was no permanency with regard to the examination. In an affirmed addendum to said report, Dr. Corso added that due to an error in transcription, his impression and conclusion reflecled the umbar spine and that his impression should have read thoracolumbar strain, resolved. He also added range of motion testing results for pllaintiff s left shoulder of forward flexion to 180 degrees (1 80 degrees normal), backward elevation to 40 degrees (40 degrees normal), abduction to 180 degrees (1 80 degrees normal), adduction to 30 degrees (30 degrees normal), external rotation to 90 degrees (90 degrees normal), and internal rotation to 80 degrees (80 degrees normal). According to Dr. Corso, there was negative tenderness and the Sulcus test and apprehension tests were normal, and the Hawkin s test and Neer s test were negative. Defendants board certified neurologist, Uriel Davis, D.O. (Dr. Davis), indicated in his affirmed r e p o r t dated July 26, 2010 that he examined plaintiff on said date. He provided the results of his neurological examination indicating, among other things, that plaintiffs mot or system examination revealed 515 muscle strength in the deltoids, triceps, biceps, forearm muscles, hand muscles, quadriceps, hamstrings and calf muscles, and that plaintiffs deep tendon reflexes were 1-2+, equal and symmetric in the upper and lower extremities. He also performed range of motion testing of plaintiffs cervical spine and lumbar spine using a goniometer and found that the results were the same as the normal measurements provided. Dr. Davis diagnosed plaintiff as status-post anti MVA, with resolved cervical sprain and strain and resolved lumbar sprain and strain. He concluded that plaintiff had a normal neurological examination and that there was no need for any further causally related neurological treatment, including physical therapy. In addition, Dr. Davis opincd that there was no accident related disability or permanency and that plaintiff could continue to work and 1 The existence of muscle spasms without any range of motion limitations is insufficient to raise an issue of fact concerning whether plaintiff sustained a serious injury under Insurance L.aw 4 5 102 (d) (compare MahrnootI v Vicks, 81 AD3d 606, 915 NYS2d 637 [2d Dept 201 11; Lefts v Bleiclzner, 56 AD3d 619, 868 NYS2d 92 [2d Dept 20081). [* 4] Saadi v Echevarria Index No. 09-20365 Page No. 4 perform her regular activities of daily living without any restrictions. The affirmed reports from July 2008 of defendants examining radiologist, A. Robert Tantleff, M.D. (Dr. T#mtleff), indicate that he reviewed the MRI of plaintiffs cervical spine as well as the MRI of plaintiffs thorac LCspine. With respect to plaintiffs cervical spine MRI, Dr. Tantle ff found diffuse regional discogenic changes of the cervical spine without evidence of any significant or dominant disc bulge, protrusion or hernialion. He noted that there was no evidence of acute or recent injury and no evidence of any compressive changc: on the cervical cord, regional or traversing elements. Dr. Tantleff s impression in conclusion was regional discogenic changes not inconsistent with plaintiffs age, unrelated to the date of the accident and of no definitive significance as presented. Regarding plaintiffs thoracic sp ne MRI, Dr. Tantleff indicated that the examination was normal and unremarkable with no evidence of disc bulge, protrusion or herniation. His impression was a normal and unremarkable MRI of the thoracic spine. Here, defendants established, prima facie, through the affirmed reports of their expert orthopedic surgeon, neurologist, and radiologist, as well as plaintiffs deposition testimony that plaintiff did not sustain a serious injury within the meaning of Insurance Law $ 5 102 (d) as a result of the subject accident (see .Barry vFutureCab Corp., 71 AD3d710,896NYS2d423 [2dDept 20101; Noh vDufle, 70AD3d 1017,894NYS2d 765 [2dDept 20101, Zvdenied 14NY3d 714,905 NYS2d 559 [2010]). Defendants also establishedprima facie that phintiff did not sustain a serious injury under the 90/180 category of hsurance Law $ 5 102 (d) inasmuch as she missed one week of work as a result of the subject accident (see Lewai-s v Transit FaciZity Mgt. Corp., 84 M13d 1176, 923 NYS2d 701 [2d Dept 20111). Moreover, there is no evidence that plaintiff incurred economic loss in excess of basic economic loss as defined in Insurance Law fj 5 I02 (a) (see,Moraiz v Palmer, 234 AD2d 526,65 1 NYS2d 195 [2d Dept 19961). The burden then shifted to plaintiff to show, by admissible evidentiary proof, the existence of a triable issue of fact (see Marietta vSceZzo, 29 AD3d 539, 815 NYS2d 137 [2d Ilept 20061). In opposition to the motion, plaintiff contends that she did sustain a serious injury as defined in Insuraiice Law 5 5 102 (d) inasmuch as she suffered post-traumatic spine pathology as a result of the subject accident. Her submissions in support of her motion include MRI reports o f her cervical spine and her thoracic spine with the attached affirmations of her radiologist, the affirmed repom of her treating physician, Nizarali Visranii, M.D., from June 17,2008 to October 23,2008, and her certified deposition transcript. Here, although plaintiff submitted MRI reports of her cervical spine and of her thoracic spine affirmed by her treating radiologist indicating that plaintiff sustained, among other things, a disc bulge and herniations in the c:ervical and thoracic regions ofher spine, the mere existence ofbulg ng or herniated discs, in the absence of objective evidence as to the extent of the alleged physical limitations resulting from the injuries and their duration, is not evidence of serious injury (see Piersoiz v Edwards, 77 AD3d 642, 909 NYS2d 726 [2d Dept 20101; CataZaizo v Kopmaiziz, 73 AD3d 963, 900 NYS2d 759 [2d Dept 20101). While plaintiff submitted medicd evidence of contemporaneous examinations from June 2008 to October 2008 in which significant limitations in cervical and lumbar ranges of motion were noted by her treating physician, she failed to proffer any recent medical evidence regarding any range-of-motion limitations in her spine (see Rovelo v VoZcy, 83 AD3d 1034,921 NYS2d 322 [2d Dept 201 11). Thus, plaintiff failed to raise a triable issue of fact as to whether she satained a serious injury under the permanent loss, the permanent consequential limitation of use, or the significant limitation of use categories of Insurance Law 6 5 102 (d) (see Valera v Siizgh, 89 AD3d 929,932 [* 5] Saadi v Echevarria Index No. 09-20365 Page No. 5 NYS21J 530 [2d Dept 201 13; Lively v Fertzatzdez, 85 AD3d 981, 925 KYS2d 650 [2d Dept 201 11). Even though plaintiff testified at her deposition that she continues to have pain during periods of prolonged slitting, a plaintiffs complaints of subjective pain are insufficient to raise a triable issue of fact regarding serious injury (see Cdabro v Petersen, 82 AD3d 1030, 918 NYS2d 900 [2d Dept 201 I]). Moreover, plaintiff failed to establish economic loss in excess of basic economic loss (see Diaz v Lopresti, 57 AD3d 832,870 NYS2d 408 [2d Dept 20081). Finally, plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injury under the 90/180-day category of Insurance Law 0 5 102 (d) (see Siew Hwee Linz v Dan Dan Tr., Iizc., 84 AD3d 1213, 923 NYS2d 677 [:!d Dept 201 11). Accordingly, the instant motion is granted and the complaint is dismissed in its entirety. J.S.C. X FINAL DISPOSITION NON-FINAL DISPOSITION

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