Gordon v Metropolitan Transit Auth.

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Gordon v Metropolitan Transit Auth. 2012 NY Slip Op 31882(U) July 2, 2012 Sup Ct, Nassau County Docket Number: 21469/10 Judge: Thomas Feinman 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] SLM SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNT OF NASSAU Present: Hon. Thomas Feinman Justice TRI/IS , PART 9 NASSAU COUNTY GRACE GORDON Plaintiff INEX NO. 21469/10 - against - x X X MOTION SUBMISSION DATE: 5/23/12 METROPOLITAN TRNSIT AUTHORITY and MTA LONG ISLAND BUS COMPANY MOTION SEQUENCE NO.1 Defendants. The following papers read on ths motion: Notice of Motion and Affdavits..................... Affinnation in Opposition.. ........ Reply Mfinnation............ ,.,....,., Relief Requested The defendats move , pursuant to CPLR 3212 , for an order grting summar judgment in their favor and dismissing the plaintiff s complaint on the grounds that the plaintiff did not suffer a " serious injur" as defined by Insurance Law 5102(d), and thus , plaintiffs claim for noneconomic loss is bard by 5104(a) of the New York Insurance Law. The defendats also move puruant to CPLR 3212 on the grounds that the defendants are not liable as the proximate cause of plaintiffs injures. The plaintiff submits opposition. The defendants submit a reply afnnation. [* 2] Theshold Motion The plaintiff initiated this action to recover for persona injuries sustained on July 2, 2009. The plaintiff, a passenger on the defendats ' bus , slipped and fell on a puddle that formed on the bus floor durng a rainstorm. The plaitiff claims that the defendats were negligent in failng to mainta the ventilation hatch causing and allowing it to leak , thereby causing the puddle to form on the bus floor. The defendants submit that the plaintiff did not sustan a "serious injur" as defined by alleges injures including a horizonta tea of the posterior horn of the medial meniscus right knee , a horizonta cleavage tear of the lateral meniscus right knee, a non displaced fracture distl end of the proximal phalan ofthe right fift toe , right knee sprain and internal derangement , and lumbosaral disc dessication with neural foramen stenosis. Insurance Law ~51 02( d) as a result of the subject accident. The plaintiff A defendant ca establish tht the plaitiffs injures are not serious withn the meaning of 51 02( d) by submitting the affidavits or affrmations of medical experts who the Insurance Law examned the plaintiff and conclude that no objective medical fmdings support the plaitiff s claim. Wright 268 AD2d 79), The theshold question in determning a sumar Grossman v. judgment motion of the issue of serious injur focuses on the sufciency of the moving papers. The proponent of a motion for sumar judgment must tender sufcient evidence to show the absence of any material issue of fact and the right to judgment as a mattr of law. (Alvarez Prospect v. Hospital 68 NY2d 320; Winegradv, New York University Medical Center 64 NY2d 851). In the present action , the burden rests on the defendants to establish , by the submission of evidentiar proof in admissible form , that plaintiff has not sufered a "serious injur. (Lowe v. Bennett, 122 AD2d 728 , affrmed , 69 NY2d 7010). Once the defendants submit evidence establishing that the plaintiff did not sufer a serious injur withn the meaning of Inurance Law 51 02( d), the burden shifts to the plaintiff to produce evidence in admissible form demonstrating the existence of a triable issue offact. (Gaddy v, Eyler 582 NYS2d 990). The Cour in Pommells v. Perez 4 NY3d 566 , in stating that proof of a herniated disc without additiona more medical evidence , is not alone sufcient to establish a serious injur, showig that the plaintiff s injuries do not satisfy the no- fault serious injur theshold , the plaintiff has the burden to present objective medical proof of a serious injur causally relate to the accident in order to surive sumar judgment dismissal, (Id) The Cour in Pommells stated that in " the context of soft-tissue injures involving complaits of pai that may be diffcult to observe or quatify, deciding what is a ' serious injur can be paricularly vexing . The Court in Pommells concluded that "even where there is objective medical proof, when additional contrbutory factors interrpt the chain of causation between the accident and the claimed injur - such as a gap in treatment , an intervening medical problem or a pre-existing condition - sumar dismissal of the complaint may be appropriate" . (emphasis added). provides tht once the defendats make a prima facie [* 3] On this theshold motion, the defendants submit plaintiff s unsworn hospita records unworn treating physician medical report from Dr. K. Reddy, plaitiffs treating physician, and plaintiffs unsworn MR reports, It is well established tht " a defendant may rely upon unsworn medical reports and uncertified records of an injured plaintiff s treating medical care providers in v. Haul Co. Of Mississippi , 72 order to demonstrate the lack of serious injur (Elshaarawy v. New York City Tr. Auth. , 16 Kearse v. Taub 19 A. 3d 368; Hernandez D.3d 878, citig 261 v. Premier Car Rental of Smith town, Abrahamson 2d 477; AD.3d 45; Itkin v. Devlin 286 A. 182 AD. 2d 268). However, unworn report of the plaintiffs. v, Kingsbury, AD. 2d 562; Pagano examining physicians are insuffcient to defeat a motion for sumar Angerami 79 N, judgment. (Grasso v. 2d 813). Here, the plaintiffs medical records reveal that plaintiff injured her right knee as a result of a fall in May of2000 , prior to the subject incident, and received a paral medial neurosectomy and chondroplasty of her right knee. Plaintiff was diagnosed with a complex tear of the body of the lateral meniscus followig the aroscopic surgery. The meniscus tissue that was extrcted durng the prior surgery reveaed " synovial and degenerating carilaginous tissue " in plaintiff s right knee joint. The defendants also refer to Dr. K. Reddy s report dated Febru 25 2000 , approximately three months prior to May of 2000 fall. Dr. K. Reddy was plaintiffs then treating physician. Dr. K, Reddy s report provides tht plaintiff was involved in a motor vehicle accident causing severe right knee injures. Additionally, the defendats refer to the plaitiffs own MR report taen immediately afer the subject accident which reveal "degenerative changes of the right knee as manfested by small osteophyte formation" and " degenerative changes of the right knee" Thereafer a second MRI report dated October 16 2009 revealed " (fJindings consistent with degenerative joint disease involving the right knee joint." The defendants have demonstrated that the plaitiffs deposition transcript, and plaitiffs own medical records , reveal that plaintiffs injur to her right knee was pre-existing, and that plaintiff sustained an injur to her right knee prior to the subject accident, and that subsequent to the subject accident , the plaintiff only treated for her right knee, Here , the defendants have made a prima facie showing that the plaintiff did not sustain a serious injur withn the meanng ofInsurce Law ~51 02( d) as a result of the subj ect accident. the defendants have met their initial burden of proof, the burden shifts to the plaintiff to provide evidence in admissible form to demonstrate the existence of a trable issue of fact. (Gaddy v. Eyler 582 NYS2d 990). Once the defendants establish that plaintiffs supra), injur is a pre-existing condition the burden shift to the plaintiff who must demonstrte , by objective medical evidence , that her alleged injures are causally related to the subject accident. v. Perez (Pommels or a prior injur, The plaitiff, in opposition to the motion, has failed to present objective medical proof of a serious injur causally related to the subject acident in order to surive summar judgment dismissal. The plaintiff submits the report by Dr. Laxidhar Diwan, M. D. who affrms that he examined the plaintiff on August 17 2009 for the first time , whereby he found tenderness over the medial and lateral joint lines , and the McMury s test was positive for medial and latera meniscus tear. Dr. Diwan refers to unworn MR reports which found tears of the medial and lateral meniscus. Dr. Diwa opines that the tear of the medial and lateral meniscus, and the medial collateral ligament are caused by the plamtiffs subject fall. However, plaintiffs physician failed to address or acknowledge plaintiffs prior injur, or plaintiffs own MRI' s which revealed degenerative [* 4] conditions of the right knee. Under these circumstaces , the plaintiffs physician s conclusion tht the plaintiffs injures were James Shabi 35 AD3d 851). Additionally, the plaintiff failed to submit competent medcal evidence that she was unable to causally related to the subject accident were speculative. 28 AD3d 536; Baksh v, 32 AD3d 525; Zinger (Tudisco v. Zylberberg, perform substatially all the daily activities for not less than 90 days of the first 180 days subsequent to the subject accident. (D 'Alba v. Yong-Ae Choi, 33 AD3d 650; Sainte-Aime v. Ho, supra; Zinger v. Zylberberg, supra, Baksh v. Shabi, supra). Conclusion The defendats have met their initial burden of establishing that the plaintiff has not sustained a serious injur as set fort in the insurance law. The plaintiff has failed to shift the burden by presenting objective medical proof of a serious injur causally related to the subject accident. Accordingly, ths cour need not address defendats' remaing contentions. In light of the foregoing, the defendants ' motion is action is hereby dismissed. grted, and therefore , the plaintiffs Dated: July 2 2012 cc: Law Offces of Mark J. Fox Zaukewicz, puzo & Morrssey, LLP ENTERED JUL 0 5 2012 NA' AU COUNTY COUNTY CLERK" OffiCE

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