Malave v Michel
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Malave v Michel 2012 NY Slip Op 32289(U) August 23, 2012 Supreme Court, Suffolk County Docket Number: 08436/2011 Judge: William B. Rebolini 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] Short Fonll Order SUPREME COURT - STATE OF NEW YORK LA.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Kim A. Malave, Index No.: 084361201 I Plaintiff, -against- Ken Michel, Kurt Kroll and Richard Caputo, Defendants. Motion Sequence No.: 001; MD Motion Date: 4/25/12 Submitted: 7/30/12 Motion Sequence No.: 002; :tv1D Motion Date: 412S!l 2 Submitted: 7/30/12 Attomev for Plaintiff: Clerk of the Court Schwartzappel Partners, P.C. 300 Jericho Quadrangle, Suite 180 Jericho, NY 11753 Attomey for Defendants Keri Michel and Kurt Kroll: Martyn, Tober & MaI1yn, Esqs. 330 Old Countr)' Road, SUlte 211 Mineola, NY 11501 Altorney for Defendant Richard Caputo: Robert P. Tusa, Esq. 898 Veterans Memorial Hwy., Suite 320 Hauppauge, NY 11788 Upon the following papers numbered I to 36 read LIpanthIS motion and cross motion for summary judgment: Notice of Motion and supporting papers (001), I - 10; Notice of Cross Motion and SUPP0l1ingpapers, II - 17; Answering Affidavits and supporting papers, (8 - 36; it is [* 2] Malavc v. Michel. et al. Indcx No.: 08436/2011 Page 2 ORDERED that motIon (001) hy the defendants Keri Michel and Kurt Kroll and the crossmotion (002) by the defendant Richard Caputo for an order pursuant to CPLR 3212 i.I\Vardlllg summary judgmcnt dismissing thc complaint on the basis the plaintiff Kim A. Malave has 110tmet the serious injury threshold as defined by Insurance Law §5102(d) are denied. The plaintiff seeks damages for personal llljuries arising out of a molor vehicle accident which occurred on April 3. 2009, on Route 27A approximately 100 feet west ofeedar Place, in Mastic, New York. As a result of this accident, Kim Malave alleges that she sustained injuries consisting of bilateral carpal tunnel syndrome; left endoscopic carpal tunnel release with dissection of the undersurface mobilizing ulnar bursa and synovial tissue on December 16, 2009; right endoscopic carpal tunnel release and dissection on the undersurface mobilizing ulnar bursa and synovial tissue on January 21, 20 I0; posterior bulgmg diSCimpressing upon the thecal sac at C2/3; posterior bulging disc impressing upon the thecal sac at C3/4; posterIor bulging disc impressing upon the thecal sac at C5/6; bulging disc right predominant at C3/4; left sided radiculopathy at C7; chromc bilateral radiculopathy at CS/6 and C6/7; positive Soto Hall test; decreased range ormation; severe innaml1ultary facet joint changes on the left at T2, T6, T9, and Tl 0; severe inf'1ammatary facetjoll1t changes on the right at T12; severe mflammatory facet join! changes bilaterally at T3, 1'4, T5, "1"7, and "1"11; .5~SI superimposed broad hemiated disc, nght predominant, Impressing on the thecal sac 1 and medial margin of the exiting left S I root. with comprcssion and posterolateral displacement of the exiting right S 1 nerve abutting the LS nerve roots; U!2 diffuse bulging disc, impressing on the thecal sac; LS-S I bulging disc; right sided L5-S 1 radiculopathy; Schmor! 's node fOffi1ation surrounding T 12/Ll; L2; superior endplate Schmorl's node; 1,2/3 through IAIS faect hypcrtrophy, encroaching on the thecal sac posterolaterally; L5/5 I dISChydration loss; anterior disc extension and spur 1"0n11atlon; L5/S I reactive endplate changes; positive bilateral Elys test; positive bilateral Hibbs test; positive left sided Lasagues test and decreased range of motion; trigger point injections mto the musculature 0 r the lumbar spine and right sacroiliac jOint; injectIons of Marcainc, Lidocaine, and Depo Mcdrot InLO lumbar space on April 24, 2009 and J Line19,2009; contusion and sprain/stralll the of the !crt arm; spasms orthe lert leg; and pain and numbness in the left foot. Pursuant to Insurance Law § 5102(d), ¢. '[sJerious injury' means a personal injury which results in death; dismcmbcm1cnt; significant disfigurement; a fracture; loss ofa fetus; pell11anentloss ofusc ofa body organ, member, IlU1ctionor systcm; peffi1anent cOllsequentiallimllation ofusc of a body organ or member; signi ficant limitation of use of a body function or system; or a medical detennined inJlII)' or Impairment of a non-pennanent nature which prevents the injured person from perfoffiling substanlially all of the material acts which constitu1C such person's usual and customary daily activities for not less than ninety days during thc one hundred eighty days immediately lollowing the occurrence of the injury or Impairment." The term "significant," as it appears in the statuLe, has bccn defined as "something more than a millor limitation of use," and the term "substantially all" has been construed to mcall "that the person has been curtailcd rrom perforlnlllg his usual actiVIties to a great extent rather than some slight curtailment (Lical'i I' Elliot, 57 NY2d 230,455 NYS2d 570 [1982]). On J motion for sUlllmary judgment to disllliss a complaint for fallure to set forth aprilJ/(/ [* 3] Malave v, Michel. £'t al. Index No.: 08436/2011 Page J * facie case or serious injury as defined by [nsurance Law 5102(d), the initial burden is on the defendant to "present evidence in competent form, showl11g that plainti ff has no cause of action" (Rodriquez v Goldstein, 182 AD2d 396, 582 NYS2d 395, 396 [J st Oept 1992]). Once the defendant has met the burden. the plaintiff must then, by competent proof, establish a prima Iacie case that such serious injury exists (DeAngelo v Fidel Corp. Services, fnc" 171 AD2d 588, 567 NYS2d 454, 455 [l st Dept 1991 D. Such proof, in order to be in competent or admissible fonn, shall consist of affidavits or affinnations (Pagano )/Kingshmy, 182 AD2d 268, 587 NYS2d 692 l2d Oept I 992J). The proof must be viewed in a light most favorable to the non-moving party, here the plaintiff (Cammarere v Villanova, 166 AD2d 760, 562 NYS2d 808, 810 [3d Dept 1990.1). In order to recover under the "pennanent loss of use" category, a plainti ff must demonstrate a total loss of use ora body organ, member, function or system (Oberly v Bangs Ambulance fnc., 96 NY2d 295, 727 NYS2d 378 [200ID. To prove the extent or degree of physical lImitation with respect to the "pennanent consequential limitation oruse of a body organ or member" or "significant limitation oruse ofa body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed or there must be a sufficient description of1.he "qualitative nature" or plaintIff's Ilmitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (Tolll'e v Avis Rent A Cur Systems, Jnc" 98 NY2d 345, 746 NYS2d 865 [20001). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, supra). In support oflheir motion (001), defendants Michel and Kroll havc submitted, inler alia, an attomey's affinnation; copies of the summons and complaint, defendants' respective answers wilh cross claims, and plaintiffs veri fied bill of pal1iculars; the transcnpt of the examination before trial ol' Klill A. Malave; and the reports of Isaac Cohen, M.D. concerning [115 independent orthopedic examination ol'the plaintiff dated January 5,2011, Maria Audrey Dejesus, M.D. conccrning her independent neurological eX<llll1llution f the p[ainti ffdatcd January 24, 20 12, and Scott Coync, M.D. o concellllllg his lIldependent reView o1'the MRls orthe plaintirf's cervical spine and lUll1bosacrtJ1 spine, which were both conducted on June 30, 2009. In support of the cross-motion (002), del'endant Richard Caputo has submitted, infer alia, an attorney's affinnation; copIes of the pleadings ami plaintiffs bill or particulars; and has incorporated by reference the exhibits and evidentiary proof submitted with motion (001). [t IS Ihe detem1l11ation of this COUl1that the defendanls failed to establish prima facie entitlement to summary judgment dIsmissing the complaint on the basis that lhe plaintiff did not sustain a serious injury as defined by Insurance Law 5102 (d). It is determined that even irthe defendants provided the copies of the medical records which their experts reviewed and on which they base thcir opmions 1n part, as required pursuant to CPLR 3212, expert testimony is limited to t:lctS III evidence (see AI/en I' Vh, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 2011 J; fI!{al'7,lIil/o l' /sOI1l, 277 AD2d 362, 716 NYS2d 98 [2d Dept 2000]; Stl'iugi/e v Rot/mulIJ, 142 AD2d 637, 530 NYS2d 838 [2d Dept 1988J; O'Silea "Sarra, lOG AD2d 435, 482 NYS2d 529 [2d Dept 1984J); Hombl'Ook v Peak Resorts, fllc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 2002]), which evidence has not been provided in this case. The moving papers also set forth factual * [* 4] Malave v. Michel. et al. Index No.: 0843612011 Page 4 issues which preclude sUlllmary Judgmcnt as a mattcr of law. Upon examination ofthc plaintiff-: Dr. Maria Audrey De.lesus has not set fOl1hher range or motion findings for left and right rotation of the lumbar spine. Additionally, she has not opined on the radicular and nerve injuries alleged by the plaintiff, and the finding of the testing pcrfol111cdon her, and she has not mled out that these injuries were causally related to the accident. While Dr. Isaac Cohen set forth that he reviewed the plaintiff's MRl reports, he does not rule out that these 1I1JUriCS, consisting ofhemiated and bulging cervical and lumbar discs, were causally related to the accidenl. Dr. Cohen set forth that he cannot explain the correlation between the motor vehicle accident and the development of carpal tunnel syndrome m both wrists, which required surgelY, and he has not ruled out a causal connection to the accident. Dr. Cohen acknowledged the vanous bulging and herniated discs reported in the MRI studies relative to the plaintiff's cervical and lumbar spines. He continued that the work-up performed on the plaintiff's cervical and thoracolumbar spine areas demonstrates preexisting degenerative conditions which were of no clinical significance at the time of the evaluation. However, he docs not set forth a basis for such opinions. Dr. Coyne opined that there arc no cervical disc hemiations, but stated that there arc degenerative disc changes with disc dehydration and annular disc bulging. Although he opined that the degeneratIve disc changes arc chronic and pre-existed the accident, he does not state the basis for this opinion and has not supported his report with the evidentiary findings set forth in the original MRI reports. Nor docs he rule out that the bulging cervical disc is causally related to the accident. While Dr. Coyne has set forth that there is no evidence of focal herniation of any lumbar discs, Dr. Cohen has indicated in his report that there is a broad based disc herniation at L5/S 1, thus raising factual issues. Aga1l1,Dr. Coyne has set forth a conciusory opinion that there was no trauma to the plamti ITs IUl11bar pine causally related to the within accident, but he has not set forth the basis for s such opinion. Based upon the foregoing, the defendants failed to address all of the plaintiff's claimed injUries, and to establish that such injuries were not causally related to the within accident (see Bell1ivegna ),Stein. 42 AD3d 555, 841 NYS2d 316 [2d Dept 2007];Stauhitz I' Yaser, 41 AD3d 698, 839 NYS2d 113 [2d Dept 2007]; Wade v Allie,1 Bltlg. Products Corp., 41 AD3d 466,837 NYS2d 302 [2d Dept 2007]; Tchjc)'skaiu v Chase, 15 AD3d 389, 790 NYS2d 175 [2d Dept 2005]). Defendants' examining physicians did not examine the plaintiffduring the statutory period of 180 days following the accident, thus rendering defendants' physicians' affidavits insurficicnt to demonstrate entitlement to summary judgment on the Issue of whether the plaint] ff was unable to substantially pr;:rform all of the material acts which constituted her usual and customary daily activities for a period in excess 01'90 days during the 180 days immediately followll1g the aCCIdent (Fun·s v Griffith, 43 AD3d 389, 841 NYS2d 594 [ld Dcpt 2007]; Blanchard v Wilcox, 283 AD2d 821.725 NYS2d 433 [3d Dept 2001]; see V,ldi" v Cooper. 32 AD3d 270. 820 NYS2d 44 [1st Dept 2006]; Toussaint v C/uudio. 23 AD3d 268. 803 NYS2d 564 [I st Dept 2005]); Zhong Liu v New [* 5] Malave v. Michel, et al. Index No.: 08436/2011 Page 5 York City Trallsit Auth., 2009 NY Slip Op 30488U [Sup Ct, Quccns County 2009]), and they do not opine un that category of inJHI)'. At her depositIon, the forty- seven year old p Ia1l1tifftestIfied that upon the occurrence of the accident, she expcnenced pam In her head, neck, both wrists, and back. She testi fled as to the chiropractic care and treatment which she received. the iJ1jcctiol1s[nto her back, MRl's to her neck and back, and surgery on both wrists for carpal tunnel syndrome, followed by physical therapy. She also testified about specdlc activities. such as gardening and cooking, that she enjoyed before the aCCIdentbut can no longer accompllsh. These t:lctual issues raised 111efendants' moving papers prcclude summary judgment. The d defendants failed to satisfy the burden of establishing, primaj(lcie, that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law 5102 (d) (see Agatlte v TUIl Chell Wang, 98 NY2d 345, 746 NYS2d 865 [2006]); see also, Walter v Papallastassiou, J 1 AD3d 439, 8]9 NYS2d 48 [2d Ocpt 2006]). Inasmuch as the moving parties have failed to establish then prima facie entitlement to Judgment as a matter of law III the first instance on the issue of"senOLlS inJury" within the meaning of Insurance Law 051 02 (d), it is unnecessary to consider whether the opposing papers were sufficient to raise a triable issue of fact (see YOllg Deok Lee v Sillgh, 56 AD3d 662, 867 NYS2d 339 [2nd Dept 2008]); Kray" " Torella, 40 AD3d 588, 833 NYS2d 406 [2d Dep! 20071; Walker v Village o/Ossilliug, 18 AD3d 867, 796 NYS2d 658 [2d Ocpt 2005]). Accordlllgly, the motion and cross-motion by the defendants lor dismissal of the complaint on the basis that plaintiff has not met the scnous injUlYthreshold arc denied. ;?3){i/2 Dated: I ___ FlNAT. DISPOSITION x NON-FINAL DISPOSITION
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