Solis v New York City Tr. Auth.

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Solis v New York City Tr. Auth. 2012 NY Slip Op 32024(U) July 23, 2012 Sup Ct, NY County Docket Number: 106814/2003 Judge: Michael D. Stallman 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] SCANNED ON 81?12@12' SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. MICHAEL D. STALLMAN PART 21 Justlce ~ __ GRISELDA SOLIS, INDEX NO. Plalntlff, -v- 108814/03 MOTION DATE MOTION SEQ.NO. 2/21/12 005 NEW YORK CITY TRANSIT AUTHORITY, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, JAMES B. TRONSCOSO, JR. and MARCIASERVICE CORP., Defendants. The followlng papers, numbered 1 to 6 Notice of Motlon- Afflmation - Exhlblts A-H Notlce of Crass Motion-Afflrmation Afflrmatlon In Opposition were read on thls motlon for summary judgment I No@). 1No(s). - Exhlblts A-D 0 5 LWs). 8 Reply Affirmatlon P 34 No(@. - Exhlblt A I;2 Uponthe foregoing papers, it is orderedthat the motionfor summaryjudgment by defendant Marcia Service Corp. and the cross motionforsummaryjudgment by defendant New York City Transit Authorityare decidedin accordancewith the annexed memorandum decision and order. IRK K'S OFFICE Vew York, New York ................................................................ 2. Check If approprlate:............................ MOTION IS: 3. Check If approprlate:................................................ 1. Check one: k m . , J.S.C. 0CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED 0 GRANTED IN PART 0OTHER 0SETTLE ORDER 0SUBMIT ORDER n [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 21 Plaintiff, Index No. 106814/2003 - against - NEW YORK CITY TRANSIT AUTHORITY, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, JAMES B. TRONCOSO, JR. and MARCIA SERVICE COW., HON.MICHAEL STALLMAN, D. J.: Decision and Order AU6 01 2012 NEW YORK In this action alleging personal injuries arising out a r n o f t t ~ & & B ~ ~ ~ - defendant Marcia Service C o y . moves for summary judgment dismissing the complaint, arguing that plaintiff did not suffer a serious injury within the meaning of Insurance Law 5 5 102 (d). Defendant New York City Transit Authority (NYCTA) cross-moves for summaryjudgment on the same ground. Plaintiff opposes the motion and CFOSS motion. BACKGROUND Plaintiff alleges that, on September 3,2002, at approximately 12:30 pm., she was injured when the M15 bus in which she was a passenger made contact with a motor vehicle allegedly owned by defendant Maria Service C o y . The accident allegedly occurred on Second Avenue, approximately 100 feet south of East 14* [* 3] Street in Manhattan. Plaintiffs bill of particulars alleges that plaintiff suffered, among other things, a medial and lateral meniscal tear in her right knee, disc bulging at L4-L5 and L5-S 1, lumbar radiculopathy, lumbar sprain, lumbar myositis, cervical disc herniations, cervical radiculopathy, cervical sprain and cervical myositis, and internal derangement of both knees, sprains in both elbows, and whiplash syndrome. (Pogorzelski Affirm., Ex C [Verified Bill of Particulars].) Plaintiff alleges that she was intermittently confined to bed and home, apart from visits to her health care providers, from September 3, 2002, the date of the accident to approximately February 5,2003. (Id. 7 11 [a & b].) DISCUSSION In support of its motion, Marcia Service Corp. submits the affirmed reports from Dr. Robert Israel, an orthopedic surgeon, and Dr. Robert S. April, a neurologist, and Dr. Tantleff and Dr. Berkowitz, who both reviewed an MRI of plaintiffs right knee take on November 27, 2002. (Pogorzelski Affirm., Exs D, E, F.) NYCTA submits the affirmed report of Dr. Nason, an orthopedic surgeon. (Berkowitz Affirm., Ex A.) Dr. Israel recorded normal ranges of motion (expressed in degrees and corresponding normal values) in plaintiffs cervical spine and lumbar spine, right shoulder, both elbows, and both knees. (Pogorzelski Affirm., Ex D.) Dr. Israel 2 [* 4] affirmed that ranges of motion were tested using visual scale and goniometer and utilizing AMA Guidelines. (Id.) Dr. Nason similarly recorded normal ranges of motion in plaintiffs cervical spine, both elbows, and both knees. Dr. Nason recorded normal ranges of motion in plaintiffs lumbar spine for flexion, extension, and lateral rotation. (Berkowitz Affirm.,Ex A.) However, as to extension of the lumbar spine, Dr. Nason found arange of motion of 2Oo(3O0 normal). (Id.) Dr. Nason did not state the methods used to measure the plaintiffs ranges of motion. Based on a review of the MRI taken of plaintiff s right knee, Dr. Tantleff stated, Regional degenerative changes are identified exacerbated by the patient s body habitus; unrelated to the date of incident most pronounced in the patellofemoral and medial joint compartment. There is no evidence of a traumatic tear or rupture of the regional ligaments, tendons or menisci. The osseous alignment is anatomic. (Pogorzelski Affirm., Ex F.) Dr. Berkowitz stated, There is no evidence of acute traumatic injury to the knee such as a fracture, bone marrow edema, meniscal or ligamentous tear. (Id.) Dr. April concluded that at the time of my examination on April 16, 2008, with reasonable medical certainty that the accident of record did not cause a neurological diagnosis or any of the symptoms which have been described in this report. The extensive medical diagnoses in her background are responsible for most 3 [* 5] of her symptoms. (Pogorzelski Affirm., Ex E.) Defendants have met their prima facie burden of demonstrating that plaintiff did not suffer a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system, because they submitted expert medical reports finding normal ranges of motion in the claimed affected body parts and no objective evidence that any limitations resulted from the accident. (Vega v MTA Bus CQ.,96 AD3d 506,506 [ 1st Dept 20121.) In opposition, plaintiff submits the affirmed report of Dr. Joyce Goldenberg, who examined plaintiff on February 1, 20 12, and an unaffmed report from Dr. Goldenberg dated October 3, 2002. (Ashman Opp. Affirm., Ex A.) Plaintiff also submits two MRI reports from Dr. Lichy and from Dr. Kolb. (Ashman Opp. Affirm., Exs C, D.) These submissions are sufficient to raise triable issues of fact as to whether plaintiff suffered a serious injury under the categories of permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system. According to the October 3,2002 report, Dr. Goldenberg recorded less than normal ranges of motion in plaintiffs cervical spine, lumbar spine, bilateral elbows and bilateral knees. (Ashman Opp. Affirm., Ex A.) The report also stated that the Spring sign, McMurray and Apley compression tests were positive bilaterally, and a 4 [* 6] straight leg raising test was positive at 10 degrees bilaterally. (Id.) In Dr. Goldenberg s affirmed report dated February 1,20 12, Dr. Goldenberg again measured less than normal ranges of motion in plaintiffs cervical spine, lumbar spine, and both knees. (Id.)Dr. Goldenberg stated that the active range of motion in both elbows was within normal limits. (Id.) The report noted that all measurements were performed with an inclinometer or goniometer. Dr. Goldenberg concluded, In my opinion, stated with a reasonable degree of medical certainty and based upon the history, examination and testing, this patient sustained injuries which include a permanent partial loss of use of her cervical and lumbar spine and bilateral knees . . . Based upon the history, examination, diagnostic test results and findings in this case, the injuries-limitations and chronic symptoms sustained by Ms. Solis described above are the direct result of the accident in question and are causally connected. According to his report, Dr. Lichy reviewed the MRI taken of plaintiffs right knee of November 27, 2002 and found tears of both medial and lateral menisci. (Ashman Opp. Affirm., Ex C.) Dr. Kolb, who reviewed MRIs taken of plaintiffs cervical and lumbar spine on November 24,2002, found [d]isc herniations at C5-C6 and C6-C7 and disc bulges at L4-L5 and L5-S1. . . (Ashman Opp. Affirm., ex D.) Both reports are neither sworn nor affirmed. Dr. Lichy s findings-that plaintiffs right knee had tears of both medial and 5 [* 7] lateral menisci-are apparently at odds with the findings of Dr. Tantleff and Dr. Berkowitz, who saw no evidence of tears of the menisci. The Court cannot say that plaintiff may not rely upon Dr. Lichy s and Dr. Kolb s unsworn MRI reports, because the affirmed report of Dr. Nason, NYCTA s doctor, appears to have referenced MRI reports, which could be Dr. Lichy s and Dr. Kolb s MRI reports. (Kearse v New York City Tr. Auth., 16 AD3d 45, 47 n 1 [2d Dept 2005][ this court has held that even a reference to the unsworn or unaffirmed reports in the moving papers is sufficient to permit the plaintiff to rely upon and submit these reports in opposition to the motion ]; Fitzroy v Boothe, 29 Misc 3d 130 (A), 2010 WL 4368377 [App Term, 1st Dept 20101.) In any event, hearsay may be considered to oppose summaryjudgment, so long as the hearsay is not the only proof submitted. (SumitomoMitsui Banking Corp. v Credit Suisse, 89 AD3d 561,564 [ 1st Dept 201 11.) Here, the MRI reports are not the only proof that plaintiff submitted to demonstrate the existence of a serious injury. Marcia Service C o p . points out that the parties agreed in a so-ordered stipulation dated September 2, 2010 that ASto the lost MRI files of the neck and lower back, they shall be precluded unless they are located and disclosed with a CPLR 4532a notice at least 60 days prior to trial. (Pogorzelski Affirm., Ex G.) According to counsel, the optical disc containing the films was corrupted and the 6 [* 8] facility Lenox Hill Radiology was unable to duplicate s m e . (Pogorzelski Affirm. 7 20.) Marcia Service Corp. therefore argues that the MRI reports of Dr. Lichy and Dr. Kolb should not be considered. This argument is unpersuasive. First, the so-ordered stipulation was a conditional order governing introduction of evidence at trial, not on a motion for summary judgment, Second, the motion and cross motion were fully submitted outside of the period contemplated in the stipulation, Le., 60 days prior to trial. Because the condition in the agreed-upon preclusion had not come to pass at the time the motion and cross motion were fully submitted, the Court sees no reason to rely upon the conditional preclusion to bar plaintiff from offering the MRI reports of Dr. Lichy and Dr. Kolb in opposition to defendants motions. In reply, Marcia Service Corp. points out that plaintiffs opposition papers show a gap in treatment with Dr. Goldenberg of nine years. (Pogorzelski Reply Affirm. 7 15.) Dr. Goldenberg stated in her affirmed report dated February 1,20 12, Ms. Solis was under my care and had treatments at my office until April 9,2003. (Ashman Opp. Affirm., Ex A.) The records from Central Park Physical Medicine and Rehabilitation (which were not certified) reflects dates of treatment in January 2003. (Ashman Opp. Affirm., Ex B.) While a cessation of treatment is not dispositive-the 7 law surely does not [* 9] require a record of needless treatment in order to survive summary judgment-a plaintiff who terminates therapeutic measures following the accident, while claiming serious injury, must offer some reasonable explanation for having done so. (Pomrnells v Perez, 4 NY3d 566, 574 [2005]. Here, notwithstanding indications in plaintiffs apparent cessation of treatment, the Court may not rely on the gap-intreatment argument, because Marcia Service Cop. only raised this argument for the first time in its reply papers. (Tadesse v Degnich 81 AD3d 570 [lst Dept 201 11.) Triable issues of fact arise as to whether plaintiff suffered a serious injury under the 90/180 day category. [Aln injury must be medically determined to qualify under the 90/18edays category, meaning that the condition must be substantiated by a physician. Additionally, the condition must be causally related to the accident. (Dumas v VaZdes, 84 AD3d 87,93 [2d Dept 201 l][intemal citations omitted].) Here, Marcia Service Corp. argues that the affirmed M U reports of Dr. E Tantleff and Dr. Berkowitz, coupled with the purported lack of evidence of medical evidence from the plaintiff within the 1SO day period, meets the prima facie burden under the 90/180 day category. To the extent that defendants rely on the purported lack of evidence from the plaintiff, defendants cannot obtain summary judgment by pointing to gaps in plaintiffl s] proof. (Coastal Sheet Metal Corp. v Martin Assocs., Inc., 63 AD3d 6 17, 8 .. . [* 10] . . .. - 4 6 18 [ 1st Dept 20091, citing Torres v Indus. Container, 305 AD2d 136 [ 1st Dept 20031.) Defendants have not met their prima facie burden for summaryjudgment under the 90/180 day category based on the MRI reports of Dr. Tantleff and Dr. Berkowitz, because those doctors reviewed MRIs only of plaintiffs right knee. Defendants do not offer any medical evidence concerning plaintiffs other alleged injuries during the first 180 days after the accident. Even if these MRI reports were sufficient to meet defendants burden, the MRI report of Dr. Lichy appears to contradict the findings of Dr- Tantleff and Dr. Berkowitz. In addition, as discussed above, Dr. Kolb found cervical and lumbar herniations based on MRIs taken on November 27, 2002 of plaintiffs cervical and lumbar spine. Dr. Goldbenberg s examination of plaintiff on October 3, 2002 revealed limited ranges of motion, the findings of which were incorporated into her affirmed report dated February 1, 20 12. Finally, the bill of particulars states that plaintiff was confined intermittently confined to bed and home, apart from visits to her health care providers, fiom September 3,2002, the date of the accident to approximately February 5,2003. (Bill of Particulars I[ 11 [a & b].) CONCLUSION Accordingly, it is hereby ORDERED that the motion for summary judgment by defendant Marcia 9 [* 11] Service COT. and the cross motion for summary judgment by defendant New York City Transit Authority are denied. v Dated: J u l y 2 3 2012 New York, New York ENTER: J.S.C. NEW YORK COUNP/ CERK'S OFPICE 10 .

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