Tamayo v Truman

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Tamayo v Truman 2012 NY Slip Op 33455(U) February 17, 2012 Supreme Court, Bronx County Docket Number: 020567/2009 Judge: Jr., Alexander W. Hunter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Apr 04.2012 Bronx County Clerk . FILED Mar 08 2012 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: PART IA23A --------------------------------·------------------------------------){ Index No 020567/2009 Sandy Tamayo and Ivelise Tamayo, Plaintiff, Dec1S1on!Order -againstKevm D. Tunnan and Patnc1a Tucker, Defendants ---------------------------------------------------------------------)( HON. ALEXANDER W. HUNTER, JR. The motion by defendants for an order granting them summary JUdgmcnt on the ground that the plamhff Sandy Tamayo has not sustained a senous lDJUry pursuant to New York Insurance Law §5102(d), ts granted The cause of action ts for personal injuries sustained by plamtiff Sandy Tamayo on October 17, 2008 on the Major Deegan Expressway at or near us intersection with East 1551h Street m Bronx County when he alleges that his vehicle was struck m the rear by defendants' vehicle while he was stopped at a traffic hght Defendants allege that plamt1ff Sandy Tamayo has not sustained a senous Injury pursuant to New York Insurance Law §5102(d) Under the "no fault" law, m order to mamtam an action for personal uyury, a plamtlff must establish that a "senous m3ury" has been sustamed Se~ ycari v. Elliott. 57 N.Y.2d 230 (1982) "It is incumbent upon the court to decide m the first instance whether plamt1ff has a cause of actlOn to assert w1thm the meaning of the statute " Id. at 237 New York Insurance Law §5102(d), defines "senous injury" as, "a personal lilJUry which results m permanent loss of use of a body organ, member, function or system, permanent consequential hrrutahon of use of a body organ or member, s1gmficant lmutallon of use of a body function or system; or a mcd1cally detemuned Injury or 1mpamnent of a non-pennanent nature which prevents the Injured party from perfonrung substantially all of the matcnal acts which constttute such person's usual and customary daily activities for not less than mnety days dunng the one hundred eighty days lIIllned1ately followmg the occurrence of the m1ury or 1mpamnent " The defendant has the burden of estabhshmg that the plamtiff has not suffered a serious Injury as a result of the accident The defendant must subllllt" affidavits or affirmations of medical experts who exammcd the plamtiff and conclude that no ob1ecttve medical findings support the plamt1ff's claim " Grossman v. Wrii:ht, 268 A.D.2d 79 (2"" Dept. 2000) When a defendant's motion lS sufficient to raise the issue that a serious m3ury has not been sustained, then the burden shifts to plamt1ffto produce pnrna facie evidence m adm1ss1ble form to support the claim of a serious m3ury Unswom reports of plamt1frs exammmg doctor will not be sufficient to defeat a motion for summary Judgment Grasso v. Aniernmi, 79 N.Y.ld. 813 (1991) If the defendant fails to meet this miual burden, then the court need not consider whether the plamt1ffs -------------------------------------- [* 2] FILED Apr 04.2012 Bronx County ---- Cle::_r~k--------------- ¢- ¢ ¢ ¢ ¢ ¢ ¢ -FILED Mar 08 2012 Bronx County Clerk ¢ papers raise a tnable issue of fact Trantel v. Rothenberi, 286 A.D.2d 325 (2.od Dept. 2001); Papdonlkolakis v. First Fidelity Leasine Group, Inc., 283 A.D.2d 470 (2"" Dept. 2001) In supµort of the motion for summary judgment, defendants subrmt the affirmed report of Ravi Tlkoo, M D, a neurologist who examined plaintiff on March 2, 2011 Dr T1koo conducted a physical exammauon of the plamtlff winch included a straight leg ralSing testing In Ins report he noted that, "There was mild tenderness of the cervical and lumbar spme" but "No associated spasm was noted " Dr T1koo concluded that plamhff dtd not have "s1gmficant chmcal evidence of neuropathy, rachculopathy, or disc hem1auon from the accident " {Defendants' Exlub1t D) He diagnosed plamtiff with a history of cervical strain, 1horac1c strain and lurnbosacral strain He further opined that plaintiff was not disabled from a ncurolog1cal standpomt and that no permanent Ul)Ury was sustained (Defendants' Exhibit D) Defendants further submit the affirmed report of Robert J Orlandi, M D., an orthopedic surgeon who examined the plamt1ff on March 1, 2011 Dr Orlandi conducted range of motion tests on plaintiff's cervical spine and shoulders and lumbar spme and found all to be w1thm normal luruts He observed no neck or back spasm and found that plamtiff did not have a "musculoskeletal d1sab1hty" nor "permanent residuals" from what he concluded to be a "mmor accident" (Defendants' Exh1btt E) Defendants also submit the affinnatton of Jessica F Berkowitz, M D., a rad1olog1st, who reviewed the MRl taken ofplamtiffs cervical spine on November 8, 2008 Dr Berkowitz noted that no bulges or hem1at1ons were present and there was no evidence of"acute trawnatic tnJury to the cervical spine such as vertebral fracture, asymmetry of the disc spaces, spinal cord contusion or epidural hematoma" (Defendants' Exh1b1t F) Dr Berkowitz concluded that there was no causal rclat1onsh.tp between plamtiffs accident and the findings on the MRI (Defendants' Exh1b1t F) Dr Berkowitz. also reviewed the MRI taken ofplamttff's lumbar spme on November S, 2008 In her affirmation dated March 2, 2011, she asserts that no disc bulges or herruat1ons were present and "nonnal lumbar lordos1s 1s mamtamed" (Defendants' Exh1b1t F) She further states that, "There 1s no evidence of acute traumatic mJury to the lumbar spme such as vertebral fracture, asynunetry of the disc spaces, hgamentous rupture or epidural hematoma " Dr Berkowitz further notes, "This repon ism disagreement with the ongmal radiology report." (Defendants' Exh1b1t F) She opmci. that there 1s no causal relationship between plamufrs accident and the findmgs m the MRI Defendants contend that based on the reports of said doctors, plamtiff did not suffer a permanent mJury or a sigmficant !mutation of a body function or system as defined by Insurance Law §5102(d) They aver that the medical evidence shows that any causally related tnJury allegedly sustained by plamtiff was rruld, at best, and 1s now resolved Moreover, defendants contend that plarnt1ff did not sustain an mJury or impamnent of a non-permanent nature under the 90/180 category of senous mJury smce plamuffs Bill of Particulars alleges that p\amt1ffwas confined to his home and was mcapac1tated from his employment for only two (2) weeks following the accident Moreover, plamnffts not assertmg a claim for loss of earnings m the mstant action Accordmgly, the motion for summary Judgment · should be granted [* 3] FILED Apr 04.2012 Bronx _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Co.~u_:_:nty~C::_:l_:_er...:..k .FILED Mar 08 2012 Bronx County Clerk r; t ¢ Plamtiff opposes the motion and argues that defendants have not met thetr burden of showmg that plamt1ff did not sustain a senous m1ury First, plamtiffrefers to defendants' fallure to acknowledge two (2) tndependent medic.ti exanuncrs' (IME) reports whtch show pos1t1ve findmgs Plamtlff refers to the unswom report of Ron Am1dror, D C , a chiropractor who examined the plaintiff on December 23, 2008 Dr Anlldror conducted range of motion tests on plamtlff and concluded that plamt1ff suffered a "mild chtropractJc d1sab1bty" that was causally related to the subject accident (Plaintiffs' ExhLb1t l) Dr Amtdror further recommended that plamtiff continue chiropractic treatments two (2) times per week for six (6) weeks (Plamtiffs' Exh1b1t l). PlamtJff further argues that defendants ignored the report of a second IME, Wtlham J Walsh Jr, M D , an orthopedic surgeon who exannned plaintiff on December 23, 2008 Range of motion tcstmg revealed some hm1tat1ons in plamt1ff's cervical spme Dr Walsh opined that plaintiff suffered a cerv1cal spme spram/stram that was resolving and thoracic spme spra1n/stram that was resolved He concluded that plaintiff suffered a "mild d1sab1hty" and stated that there was a "probable causal relattonsh1p" between the accident and plaintiffs "symptomatology" (Plamtiffs' Exh1b1t 2) Dr Walsh recommended that platnt1ff contmue physical therapy two (2) tunes per week for an add11Jonal six (6) weeks, "with one orthopedic follow up w1thm six weeks . and should then be re-evaluated" (Plamhffs' Exhtb1t 2) Plamtiff contends that smce defendants failed to address the foregomg reports, they have not met their burden of showmg that plamttff did not sustain a serious mJury This court notes that the report of Dr Anlldror is not m adnuss1ble form and, therefore, said report 1s disregarded Dr Anudror is a chiropractor and 1t 1s well estabhshed that an affirmation from a chtropractor 1s not competent evidence lf 1t is not subscnbed to before a notary or other authorized md1v1dual Shinn v. Catanzaro, 1 A.D.3d 195 (1' 1 Dept. 2003). Adchhonally, Dr Walsh, m his report merely stated that there was a "probable" causal relat1onsh1p between plamt1frs symptoms and the subject car accident Thus, this court finds that defendants have met their m1tial burden of estabhshmg that plamt1ff did not suffer a senous tiljury causally related to the action and the burden shifts to plamt1ff to submit proof m adm1ss1ble form to create an issue of fact Franchini v. Palmien, 1 N.Y.Jd 536 (2003) Plamt1ff subnuts the affidavit and report of M1tchell Zeren, a chiropractor who was treattng plamt1ff after the accident In his report, dated October 21, 2008, Dr Zeren noted that plamttffwas havmg trouble with his daily routmes Range of motion testing revealed that plamttffhad s1gruficant hnutatmns m range ofmotton m his cervical and lumbar spine Moreover, Dr. Zeren noted "severe paraspmal muscle spasm of the cervical and upper thoracic spme" (Plamttffs' Exlubit 3). Dr Zeren stated that, "there appears to be a causal relat10nship between Mr Tarnayo's IOJUnes and the accident of October 17, 2008 (Plaintiffs' cxh1b1t 3) Additionally, plamttff subrruts the affirmed report of Yolande Bernard, MD, who perfonned a phys1atnst evaluation of plamttff on October 30, 2008. Dr Bernard perfonned range ofmot1on testing on plaintiff's cervical spine and lwnbosacral spmc and found s1gmficant hrrutat1ons Dr Bernard causally related the InJW'Jes to the subject accident and recommended physical therapy three (3) to four (4) times per week as well as continued chiropractic care. (Plamtiffs' Exh1b1t 4) In follow up exammat1ons performed by Dr Bernard on December 2, 2008 and January 15, 2009, plamtiff was noted to have contmued pam and loss ofrange of motion [* 4] FILED Apr 04.2012 Bronx County Clerk .FILED Mar 08 2012 Bronx County Clerk Moreover, on January 7, 2009, Anc Hausknccht perfonned NCVIEMG tests on the plaintiff which revealed an L5-Sl rad1culopathy Dr. Hausknecht opmed that plamt1ffwas partially disabled and restncted plamttfrs actJV1lies Dr Hausknecht also causally related the Ul.JUTICS to the subject accident (Plamttffs' Exh1b1t 5) Plamttff next subnuts the affirmed report of Arden M Ka1sman, M D , who gave the plamtlff several epidural steroid tnJechons on March 4, 2009, March 18, 2009, May I I, 2009 and June 15, 2009 Add1t1onally, on February 9, 2009 and Apnl 13, 2009, Dr Ka1sman performed range of motion tests on plamttff's lumbar and cervical spine and found hnutations (Plamnffs' Exlub1t 6) Finally, plaintiff refers to his depos1t1on testimony wherein he stated that he can no longer stand as often as he used to, go to the gym or play softball Plamtlff stated that he played softball twice a week and went to the gym four (4) times a week Moreover, he has treated consistently with a chiropractor and has not had a gap m treatment Accordmgly, plamtlffs assert that defendants' rnolton should be derued Although plamttff's experts opmcd that plaintiff had hrrutcd range of rnot10n m his cervical and lumbar spine, plamttffs subnuss1ons mvolved examinations of the plamt1ff shortly after and up to six (6) months after the accident Plamt1ff1s allegmg that he has suffered a pennanent loss of use of a body organ member function or system, .i pennanent consequential lmutat1on of use of a body organ or member or a s1gn1ficant hnutat1on of a body function or system. However, defendant sub1T11tttd the affinned reports of doctors who examined plamt1ff m March 2011 and found that he had full range of motion m his cervical and lumbar spme and that all sprams and strains were resolved Plaintiff failed to submit any reports of recent exammattons performed on the plamttffto show that his mJur1es are pennanent m nature and to rebut defendants' experts findmgs of full ranges ofmot10n Shu Chi Lam v. Wan2 Don2, 84 A.D.3d 51S (1'1 Dept. 2011) ,. Ir Add1tionally, plamnfffa!led to show that he suffered a senous ITIJury under the 90/180 category of Insurance Law §5102(d) His Bill of Particulars and depos1t1on testunony reveal that he was confined to his home for approxunately two (2) weeks after the accident and could not return to work for only two (2) weeks after the accident Therefore, plamttffhas not demonstrated that he has sustained a serious mJury under the 90/180 category Perez v. Corr, 84 A.D.3d 646 (l" Dept. 2011) Accordmgly, smce plamt1ff has fatled to raise an issue of fact as to whether he has sustamed asenous tnJury under Insurance Law §Sl02(d) Defendants' motion for an order d1smissmg plaintiffs' complamt 1s granted Defendants are directed to serve a copy ofth1s order with notice of entry upon the plamt1ffs and file proof thereof with the clerk's office This constitutes the dec1S1on and order of this court Dated February 17. 2012 JS.C \ ALEXANDER W. HUNTER, JR. -...... J.S.C ¢ .- - .

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