Yong v Durso
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Yong v Durso 2012 NY Slip Op 31880(U) June 28, 2012 Sup Ct, Nassau County Docket Number: 14737/10 Judge: Arthur M. Diamond 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] -x'ly SUPREME COURT - STATE OF NEW YORK Present: HON. ARTHUR M. DIAMOND Justice Supreme Court ----------------------------------------------------------------------- x TRIL PART: WILLIAM YOUNG, NASSAU COUNTY Plaintiff, INDEX N -againstMOTION SEQ NO. ANNMARIE DURSO AND MARY JENKINS, Defendants. SUBMIT DATE:05/02/12 ------------------------------------------------------------------ x The following papers having been read on this motion: Notice of Motion........................ Op pos i ti 0 n..................................... Rep Iy ........... ......... ....... ..... .............. By separate motions , defendants Anarie Durso and Mar Jenkns , each seek an Order awarding them summary judgment dismissing the plaintiff, Wiliam Young s complaint on the grounds that his injures do not satisfy the " serious injur" theshold requirement of Insurance Law 5102(d). Both motions are granted. This action arises out of a three car accident that occured on Febru 19 , 2009 at approximately 12:15 p. m. near the intersection of Route 107 and Greenwood Drive in North Massapequa, New York. The vehicle being operated by the plaintiff was rear-ended by the defendants ' respective vehicles while the plaintiff was stopped at a red light. At his sworn examination before trial , plaintiff testified that he felt one heavy impact as a result of which he claims he was rendered unconscious for several minutes (Young Tr. , p. 20). He declined to be transported via ambulance to the hospital; instead plaintiff testified that he drove himself thereto and that following an examination and medical tests , he was discharged the same day (Id. at 45). At his deposition , plaintiff testified that , although at the time of the accident he had been retired for several years from his job as a self-employed carenter, he was en route to repair a leak to ear " extra money (Id. at 12). He testified (in direct contradiction to his claims in his bil of pariculars) that following the .5L 4A [* 2] accident , he was not confined to his bed or home at 59). Indeed , he stated that he eventually (ld. completed the repair of the leak , that he has no difficulty using his tools , and that he has also done other " general carentry work" post his accident (Id. at 47- , 85). That being said , plaintiff claims that he is no longer able to cut grass , do heavy lifting, bend or fish for prolonged periods of time (Id. at 63 , 68- 69). He states that he gets tired faster as a result of the injuries he sustained in this accident (Id. at 69). Plaintiff also testified that following his accident , he has flown to Minnesota and has driven to Florida. When asked about prior accidents and injuries , plaintiff testified that he was involved in an accident where he fell from a ladder and broke his left ar personal injur claim involving his eye and chin (Id. (Id. at 64- 65) and that he also had a prior at 66- 67). As a result of this accident , plaintiff claims that he sustained inter alia the following serious injuries: focal herniated disc at L4- 5 in the left intervertebral foramen; posterior disc bulges at L4- and L5- S 1; bilateral L5- S 1 radiculopathy; significant limitation of range of motion of the lumbar spine; pain , numbness , tingling and weakess to bilateral legs (Verified Bil Supplemental Bil of Pariculars of Pariculars 2). The 72 year old plaintiff, Willam Young, claims in his bil of pariculars that his injures fall within all of the categories of the serious injur statute. However , this claim is entirely meritless. Based upon a plain reading of the papers submitted herein, it is obvious that plaintiffs injures did result in his death , dismemberment , significant disfigurement , a fracture , or loss of a fetus. Furher , inasmuch as the plaintiff has failed to allege and claim that he has sustained a " total loss of use " of a body organ, member , function or system , it is plain that his injures also fail to satisfy the " permanent loss of use " category of Insurance Law ~5102(d) (Oberly v. Bangs Ambulance, Inc., 96 NY2d 295 (2001)). Similarly, plaintiff s claims of serious injury under the 90/180 category of Insurance Law 51 02( d) are also contradicted by his own testimony wherein he states that he was not confined to his bed or home as a result of this accident or that he is curailed in his usual activities " to a great extent rather than some slight curailment" (Licari v. Ellott 57 NY2d 230 236 (1982); Sands v. Stark , 299 AD2d 642 (3 Dept. 2002)). In fact , according to his own sworn testimony, other than being unable to cut the grass or do heavy lifting, there is nothing that he canot do. To the contrar, there is ample [* 3] testimony that he resumed " general carentry work" including finishing the repair job which he was on his way to perform before the accident , and travel distances including to Minnesota and drive from New York to Florida. Furhermore , in the absence of any evidence that he is "medically (Monk v. Dupuis 287 AD2d 187 , 191 (3 Dept. impaired from performing any of his daily activities 2001)), this Cour determines that plaintiff has effectively abandoned his 90/180 claim for puroses (Joseph v. Forman 16 Misc. 3d of defendant's initial burden of proof on a threshold motion 743 (Sup. Ct. Nassau 2007)). Thus , this Cour wil restrict its analysis to the remaining two categories of the serious injur statute; to wit , permanent consequential limitation of use of a body organ or member and significant limitation of use of a body fuction or system. Under the no- fault statute , to meet the threshold significant limitation of use of a body function 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 (Licari v. Ellot supra; Gaddy v. Eyler 79 NY2d 955 (1992); Scheer v. or condition Koubeck 70 NY2d 678 (1987)). A minor, mild or slight limitation shall be deemed " insignificant" within the meanng of the statute (Licari v. Ellot supra; Grossman v. Wright 268 AD2d 79 , 83 (2 Dept. 2000)). 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 extent or degree of the physical limitation, an expert' designation of a numeric percentage of plaintiff s loss of range of motion is acceptable (Toure v. Avis Rent A Car Systems, Inc. 98 NY2d 345 (2002)). In addition , an expert' 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 fuction, affected body organ , member , fuction or system (Id). Having said that , recently, the Court of Appeals in held that a quantitative assessment of a plaintiff Perl s injuries does v. purose and use of the Meher 2011 NY Slip Op. 08452 not have to be made during an initial examination and may instead be conducted much later , in connection with litigation (Perl v. Meher 18 NY3d 208 (2011)). With these guidelines in mind , this Cour wil now tur to the merits of defendants ' motions. [* 4] In support of her motion , defendant Mar Jenkins submits the following: the sworn report of Dr. Chandra M. Shara, M. , a neurologist who performed an independent neurological examination of the plaintiff on December 23 2011; the sworn report of Dr. Alan J. Zimmerman , an orthopedic surgeon who performed an independent orthopedic evaluation of the plaintiff on December 28 2011; and , the sworn MRI report of Jacques Romano , M. D. who reviewed that CT scans dated March 30 , 2009 of plaintiff s lumbosacral spine and causally related his findings by noting that the " findings are not suggestive of the sequelae of acute trauma. Similarly, in support of her motion , Anemare Durso also relies upon the sworn report of Dr. Chandra M. Shara , M. D. wherein Dr. Shara performed an independent neurological examination of the plaintiff on December 23 2011 and the sworn report of Dr. Alan J. Zimmerman , who performed an independent orthopedic evaluation of the plaintiff on December 28 , 2011. Initially, it is noted that Dr. Romano s report constitutes competent and admissible evidence and may be relied upon by the defendant , Mar Jenkins. Not only does Dr. Romano aver that he (Fiorilo v. Arriaza 52 AD3d 465 (2 reviewed plaintiffs CT scans Dept. 2008); Sayas v. Merrick Transportation 23 AD3d 367 (2 Dept. 2005)), but he also reports an opinion as to the causality (Silkowski v. Alvarez 19 AD3d 476 (2 of the findings in his report 8 AD3d 321 (2 Dept. 2004); Accordingly, his report wil Betheil-Spitz be considered as v. Linares Dept. 2005); 276 AD2d 732 (2 Collns v. Stone Dept. 2000)). par of defendant Jenkns ' proof. Indeed , based upon the papers submitted herein , this Cour finds that the defendants have established their prima facie entitlement to judgment as a matter of law. The affirmed reports of Drs. Shara and Zimmerman who examined the plaintiff and performed quantified range of motion testing on his cervical and lumbar spine with a goniometer compared their findings to normal range of motion values and concluded that the ranges of motion measured were normal , sufficiently demonstrates that the plaintiff did not sustain a " serious injur as a result of this accident. The physicians also performed motor and sensory testing and found no deficits , and based on their clinical findings and medical records review, concluded that the plaintiff has recovered fully from all alleged injuries from the subject accident Dept. 2009); (Staf) v. Yshua 59 AD3d 614 Cantave v. Gelle 60 AD3d 988 (2 Dept. 2009)). Indeed , Dr. Zimmerman notes that the lumbar sprain has since resolved and Dr. Shara finds that the cervical and lumbar sprain [* 5] have resolved and the neurological examination was normal. Having made a prima facie showing that the plaintiff did not sustained a " serious injur within the meaning of the statute , the burden shifts to the plaintiff to come forward with evidence to overcome the defendants ' submissions by demonstrating a triable issue of fact that a " serious injur " was sustained (Pommels v. Perez see also Grossman v. Wright supra). 4 NY3d 566 (2005); In opposition , counsel for plaintiff. submits the sworn affidavit of Michael Gramse , DC , a chiropractor who claims to have been consistently treating the plaintiff since Februar unsworn reports of Dr. Richard Stapen , M. D. and Dr. Steven M. Peyser , M. 2009 and the , radiologists who claim to have interpreted the CT scan of plaintiffs lumbar spine and cervical spine on March 30 2009 and March 23 , 2009 respectively. Despite these submissions , insufficient to present a triable issue of fact herein plaintiffs proof is wholly (Id). First, although Mr. Gramse properly proffers a sworn affidavit (CPLR 2106; Blum 267 AD2d 441 (2 Pichardo v. Dept. 1999)), his findings nonetheless are insufficient to raise a triable issue of fact. Specifically, in his report , Mr. Gramse , claims to have perfonned " computerized range of motion testing... utilizing a Norotrack Motion Analyzer" on plaintiffs cervical and lumbar spine. However , it remains unclear to this Cour as to how a chiropractor can perform such testing or more importantly how he can interpret the findings in a medical way such that the objective purose . underlying the Insurance Law can be legitimately achieved. For example, Mr. Gramse purorts to compare .his measured range of motion findings to "normal" standards; however, the chiropractor fails to state the medical source of his baseline "normal" measurements. Moreover , Mr. Gramse continually relies upon "visible and palpable " muscle spasms to document the positive findings of certain "medical" tests. This is clearly insufficient. Reliance upon "visual observations " to conclude positive findings does not constitute objective evidence of a "serious AD3d 728 (2 Dept. 2006); injur Walters v. Papanastassiou 31 AD3d 439 (2 (Vasquez v. Basso , 27 Dept. 2006)). Therefore , this Cour finds that Mr. Gramse s affdavit opining as to any purorted loss is improper and meritless (Toure v. Avis Rent A Car Systems supra; Powell v. Alade 31 AD3d 523 (2 Dept. 2006)). Furthermore , Drs. Stapen and Peyser s unsworn reports are equally insufficient to defeat summar judgment. It is clear that said reports are neither sworn nor affirmed; accordingly, they are [* 6] 813 (1991); Pagano v. Kingsbury, v. (Grasso presented in inadmissible form and are devoid of any probative value Angerami 79 NY2d 182 AD2d 268 (2 Dept. 1992)). Further, although Drs. Stapen and Peyser appear to have taken the CT scan under their supervision and also appear to be the physicians interpreting the findings of the scans , in the absence of the physicians ' opinions as to the (Collns causality of their respective findings , the reports are rendered incompetent and inadmissible v. Stone supra; Betheil-Spitz v. Linares supra). Therefore , in light of plaintiff s failure to present any competent or admissible evidence supporting a claim for serious injury, defendants , Anemare Durso and Mar motions each seeking an Order , Jenkins separate awarding them summar judgment dismissal of the plaintiff Willam Young s complaint on the grounds that his injuries do not satisfy the " serious threshold requirement of Insurance Law injur 5102(d) is granted. The complaint is dismissed in its entirety. This shall constitute the decision and order of this Cour. Settle Judgment on Notice. This constitutes the decision and order of this Cour. DATED: June 28, 2012 t: HON. ARTHU M. DIAMOND C. ENTERED JUL 05 2012 To: LAW OFFICES OF MATTHEW T. NASAU COUNTY Attorney for Defendant COUNTY CLERK' S OFFICE SHAYNE, DACHS, CORKR, SAUER FELLA, ESQ. DACHS, LLP. 395 Fulton Street Faringdale , New York 11735 114 Old Countr Road , Suite 410 Mineola, New York 11501 Attorney for Plaintiff STEWART H. FRIEDMAN, ESQ. 100 Wiliam Street , 9th Floor New York , New York 10038
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