Yakobson v Schubert

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Yakobson v Schubert 2012 NY Slip Op 32318(U) August 31, 2012 Sup Ct, New York County Docket Number: 400734/09 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] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. MICHAEL D. STALLMAN PART 21 Justice Index Number : 400734/2009 FILED SEp 07 m 2 YAKOBSON, MlKHAlL vs , SCHUBERT, WALDER R. SEQUENCE NUMBER : 002 SUMMARY JUDGMENT INDEX NO. 400734109 MOTION DATE MOTION SEQ. NO. 6114112 002 N t W m The following papers, numbered Ito aurnmary Judgment Notice of Motion; Affirmation 9 %~~d%kk%%~&?kh'@surnrnary Judgment; cros8 motion for - Exhibits A-H Affirmation in Opposition - Exhlblts A-B; Affirmation In Opposition-Affidavlt of Custodlan of Medical Records - Exhlblts A-8; Affidavit In Further Opposition-Affldavlt Notlce of Cross Motion-Afflrmation - Exhibits A-B INo(s). INo(s). I No@). I; 2 3: 4-5; 6-7 8 -9 Uponthe foregoing papers, it is orderedthat the motion for summaryjudgment by defendants NewYork City Transit Authority and Walder R.Schubertand the cross motion by defendant BryanChan are granted in part, and so much of the complaint that alleges that plaintiff suffered a serious injury under the 901180 category is dismissed as against all defendants, and the motion and cross motion are otherwise denied, and it is further LL. W e .. %E J Z 30 53 (no k? %5 9 mJ 92 2% SF 5 Z L L ORDERED that the remainder of the action shall continue. This action arose of out of an accident involving four motor vehicles that allegedly occurredon November6,2007, in southbound lanes of the FDR Drive, I near an exit to South Street in Manhattan. The four vehicles involved were: ( ) a 2004 Mercedes Benz bearing license plate numberCWF5243, allegedly owned and operated by defendant BryanChan; (2) a 2005 Jeep GrandCherokee Laredo bearing license plate number DBH9144, allegedly operated by defendant Carmela Abrahanteand allegedly owned by defendant Royale Draperies, Inc; (3) a 2007 LincolnTown Car bearing license plate number T48901I C allegedly operated by defendant Ysnoc Bauduy and allegedly owned by defendant 349 Car Corp; and (4) a bus bearing license plate number K42037, allegedly operated by Walder R. Schubert and allegedly owned by defendant New York (Continued.. . ) Page I of 5 [* 2] Yakobson v New York City Tr, Auth., Index No. 400734109 City Transit Authority (NYCTA). Plaintiff Mikhail Yakobson was allegedly a passenger in Schubert s bus. NYCTA and Schubert move for summary judgment dismissing the complaint and all cross claims as against them on the ground that Yakobson did not suffer a serious injury within the meaning of Insurance Law 5 5102 (d). Chan also cross-moves for summary judgment, adopting and incorporating NYCTA and Schubert s arguments and exhibits. The bill of particulars alleges that Yakobson suffered, among other injuries: right knee-joint effusion; C5-C6 broad based posterior disc protrusion; loss of the lumbar lordosis above L5; L5 left radiculopathy;Cenrical sprainktrain; Cervicalgia; Mus[c]le spasm; Hip pain; Wrist pain; Anxiety, tension, and stress related to pain; Post[-]traumatic headache. (Coffey Affirm, Ex D verified Bill of Particulars].) Yakobson also states that he was confined to bed for one day and confined to home for approximately three months I intermittently thereafter. (Id. TI I .) In support of its motion, NYCTA submits affirmed reports from Dr. Jacquelin Emmanuel, an orthopedic surgeon, and from Dr. Tuvia, a radiologist (Coffey Affirm., Exs G, H.) Dr. Emmanuel exarninedYakobson on November 6, 2007, and Dr. Tuvia reviewed MRls of Yakobson s right knee, cervical spine, and lumbar spine. To meet the prima facie burden of summary judgment of the serious injury threshold, a defendant must submit[] 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 Co., 96 AD3d 506, 507 [Ist 20121.) Dept Using a goniometer, Dr. Emmanuel measured normal ranges of motion (expressed in degrees and corresponding normal values) in Yakobson s cervical spine, right wrist and right hip. (Coffey Affirm., Ex G.) According to Dr. Emmanuel, the carpus of Yakobson s right wrist was stress tested and noted to be normal. Grip and punch strength measures 5/5. Tinel sign is negative. (/d) to the MRI of Yakobson s cervical spine, Dr. Tuvia stated, As Degenerated, mildly bulging C5C6 disc, otherwise normal study. The above (Continued.. . ) Page 2 of 5 [* 3] Yakobson v New York City Tr. Auth., Index No. 400734109 findings are most consistent with degenerativespinal disease which is a preexisting condition. (Id.) NYCTA has therefore met its prima facie burden of serious injury as to Yakobson s alleged cervical spinal injuries, wrist and hip injuries, based on Dr. Emmanuel s and Dr. Tuvia s report. NYCTA has met also its prima facie burden of serious injury as to Yakobson s alleged lumbosacral spinal injuries. Dr. Ernmanuelfound normal ranges of motion in Yakobson s lumbar spine. (Coffey Affirm., Ex G.) Dr. Emmanuelstated the lordotic curve was normal, and [slitting lasegue testing is negativeto 80 degrees. Straight leg raising is negativeto 75 degrees in both the seated and supine positions. (Id.) Yakobson s counsel argues that the normal range of motion for straight leg testing and Laseguetesting should have been 90 degrees and 92 degrees, respectively, but did not submit an affidavit or affirmation from an doctor. Given the normal ranges of motion that Dr. Emmanuel measured, coupledwith Dr. Tuvia s findings of a Degenerated L5Sq disc, otherwise normal study and no findings to suggest acute trauma or sequela of such (CoffeyAfinn., Ex H), NYCTA has met its prima facie burden here. (Bernabel vPeruMo, 300 AD2d 330 [2d Dept 20021; ¬spina/ v Galicia, 290 AD2d 528, 529 [2d Dept 20021.) As to Yakobson s right knee, Dr. Emmanuel stated, [rlange of motion is 0-130 degrees with evidence of crepitus (0440 degrees normal). There is no tenderness above the joint line or bony structures, medial or lateral joint lines. McMurray Test is negative. There is no ligamentousinstability. There is no evidence of atrophy. Muscle tone and bulk are normal. (Coffey Affirm., Ex G.) Dr. Tuvia s impression of the MRI of Yakobson right knee was normal study of the right knee joint. (Coffey Affirm., Ex H.) This is not sufficient to meet the prima facie burden of serious injury concerning Yakobson s right knee. Dr. Emmanuel measured less than normal range of motion in his right knee. (Jean vNew York City Tr. Auth., 85AD3d 972,974 [2d Dept 201l][orthopedic surgeonfound rangeaf-motion restrictions (Continued. . . ) Page 3 of 5 [* 4] Yakobson v New York City Tr. Auth., Index No. I17058109 in the injured plaintiffs left shoulder, documented less-than-normalfindings in the numeric values he gave for each specific range of motion, but failed to address these losses of range of motion to the injured plaintiffs left shoulder]; Shin Sook Jin v Kwon, 42 AD3d 445, 447 [2d Dept 2007][report of the defendant s orthopedist appeared to indicate that plaintiffs range of foward flexion was less than normal ].) NYCTA correctly points out that a minor, mild or slight limitationof use should be classified as insignificantwithin the meaningof the statute. (Licari v Elliott, 57 NY2d 230,236 [1982].) A minor deficit in a single aspect of a plaintiffs range motion may be insignificantfor purposes of Insurance Law 5 5102 (d). (Rosa-Diaz v Maria Auto Corp., 79 AD3d 463,464 [ l s t Dept 20101.) NYCTA does not cite any appellate ruling that a I O degree limitation in the range of motion of the knee was minor, mild or slight as a matter of law. NYCTA cites a case involvinga 15% limitationof the cervical spine, but Dr. Emannuel did not render an opinion as to a percentage o limitation based on this f measured range of motion. Because NYCTA and Chan did not meet their prima facie burden of demonstrating, as a matter of law, that none of Yakobson s injuries meetthe No Fault threshold, NYCTA s motion and Chan s cross motion are denied. Notwithstandingthe above, NYCTAand Chan are granted summary judgment dismissing so much of the complaint as alleges that Yakobson suffered a serious injury under the 90/180 day category. w h e r e evidence shows, for example, that the plaintiff actually returned to work within the first 90 days after the accident, it is proper to dismiss 901180 claims, since the ability to return to work may be said to support a legitimate inferencethat the plaintiff must have been able to perform at least most of his usual and customary daily activities. (Correa vSaifuddin, 95 AD3d 407,409 [ l s t Dept 20121.) Here, when asked at his deposition, You didn t miss any time from work as a result of this incident? , Yakobson answered, No. (CoffeyAffirm., Ex F vakobson EBTJ, at 39.) (Continued. . . ) Page 4 of 5 [* 5] Yakobson v New York City Tr. Auth., Index No. 117058/09 Although the other codefendants did not move for summaryjudgment, dismissal of the complaint alleging serious injury under the 901180-day category as against them is also warranted, because if plaintiff cannot meet the threshold for serious injury against one defendant, she cannot meet it against the other. (Williams v Horman, 95 AD3d 650, 651 $?st Dept 20121.) / r . l New York, New York I. Check one: ................................................................ 2. Check If appropriate: ............................ MOTION IS: 3. Check if approprlate:................................................ 0CASE DISPOSED n GRANTED 0 DENIED 0SETTLE ORDER NON-FINAL DlSYOSlTlON GRANTED IN PART ri SUBMIT u OTHER ORDER NEW YORK COUNTY CLERK S OFFICE Page 5 of 5

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