Pineda v Ghadui
Annotate this CaseDecided on March 16, 2012
Supreme Court, Bronx County
Nancy Ordaz Pineda and Enrique Cid, Plaintiff,
against
Mustapha Ghadui, Walter M. Hernandez, Roberto C. Dominguez, Raza Azteca Tattoos, Inc., Defendants.
20696/2010E
Attorney for Moving Defendants Ghadui and Hernandez: William B. Stock, Esq., of Cheven, Keely & Hatzis, Esqs.
Alexander W. Hunter Jr., J.
The motion by defendants Mustapha Ghadui and Walter M. Hernandez, for summary judgment dismissing plaintiffs' complaint against them on the ground that plaintiffs have not sustained a serious injury as required by New York Insurance Law Section 5102(d), is granted on default.
The cause of action is for personal injuries alleged to have been sustained by the plaintiffs in a motor vehicle accident that occurred on may 18, 2009 at Steinway Street approximately 100 feet north of 25th Avenue in Queens County. Plaintiffs were passengers in the vehicle operated by defendant Roberto C. Dominguez.
Under the "no-fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained. See, Licari v. Elliott, 57 NY2d 230 (1982). "It is incumbent upon the court to decide in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute." Id. at 237. New York Insurance Law §5102(d), defines "serious injury" as, "...a personal injury which results in...permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured party from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
On a motion for summary judgment, a defendant has the burden of proving that the [*2]plaintiff's injuries were not serious. In order for a defendant to establish that the plaintiff failed to sustain a serious injury within the meaning of the statute, the defendant must submit, "...affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim." Grossman v. Wright, 268 AD2d 79 (2nd Dept. 2000). Once the defendant has sufficiently raised the issue of whether a serious injury has been sustained, the burden shifts to the plaintiff to, "...come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of Insurance Law." Id. at 84; Gaddy v. Eyler, 167 AD2d 67 (3rd Dept. 1991). Once the burden shifts, it is incumbent upon plaintiff to produce prima facie evidence in "admissible form" to support the claim of serious injury. Unsworn reports of plaintiff's examining doctor will not be sufficient to defeat a motion for summary judgment. Grasso v. Angerami, 79 NY2d 813 (1991).
Defendants assert that plaintiffs did not sustain a serious injury. With respect to plaintiff Pineda, defendants submit the affirmed report of Robert Israel, M.D., an orthopedic surgeon, who examined the plaintiff on April 29, 2011. Dr. Israel performed range of motion tests on plaintiff Pineda's cervical, thoracic and lumbar spine and found all to be within normal limits. Additionally, other tests such as the Soto Hall test, Valsalva test and Spurling test performed on the cervical spine, were negative. The straight leg raising test was negative bilaterally, there were no spasms or tenderness to palpation. Range of motion testing to the right and left shoulder were also within normal limits and other tests performed such as the "Speed...O'Brien and clunk tests" were all negative. (Exhibit D). Dr. Israel's impression was that the sprain of the cervical and thoracic spine were resolved and the sprain of the right and left shoulder were also resolved. He opined that plaintiff "has no disability as a result of the accident..." and that plaintiff "...is capable of work activities and ADLs without restrictions." (Exhibit D).
Defendants also submit the affirmed report of Ravi Tikoo, M.D., a neurologist who examined plaintiff Pineda on April 27, 2011. Dr. Tikoo noted "mild tenderness" of the cervical and lumbar spine but found that there was "No associated spasm" and "Straight leg raising was possible up to 90 degrees bilaterally in the sitting position..." (Exhibit E). Dr. Tikoo diagnosed plaintiff Pineda with the following: "(1) Subjective Complaints of Headaches, (2) History of Cervical Strain, (3) History of Lumbosacral Strain, and (4) History of Soft Tissue Injuries." (Exhibit E). Dr. Tikoo further opined that "Despite her subjective complaints, there were no objective findings to substantiate these complaints Nancy does not need any further treatment or diagnostic testing...It is my opinion that a permanent injury has not been sustained." (Exhibit E).
Based upon the foregoing, defendants argue that plaintiff has not suffered a permanent loss of use of a body, organ member function or system or a permanent consequential limitation of use of a body organ or member or a significant limitation of a body function or system. Defendants further argue that plaintiff has not sustained a serious injury under the 90/180 category as defined in Insurance Law §5102(d) in that plaintiff is not claiming any lost wages in her Verified Bill of Particulars. Moreover, she has not demonstrated that she suffered an injury or impairment that curtailed her usual and customary activities for 90 days during the first 180 [*3]days following the accident. Therefore, summary judgment should be granted as against her.
With respect to plaintiff Cid, defendants submit the affirmed report of Dr. Israel who examined plaintiff on April 29, 2011. Dr. Israel performed range of motion tests on plaintiff's cervical spine, thoracic spine and lumbar spine and found all to be within normal limits. There were no spasms or tenderness on palpation. Range of motion tests performed on his right and left shoulder were all within normal limits. All other tests were negative. Dr. Israel opined that sprains of the cervical, thoracic and lumbar spine were all resolved. (Exhibit F). Dr. Israel further opined that plaintiff has no disability as a result of the subject accident and no treatment is medically necessary. He also opined that plaintiff "...is capable of work activities and ADLs without restriction." (Exhibit F).
Defendants also submit the affirmed report of Dr. Tikoo who examined plaintiff Cid on April 27, 2011. Dr. Tikoo diagnosed plaintiff Cid with, "Subjective Complaints of Headaches, (2) History of Cervical Strain, (3) History of Thoracic Strain, and (4) History of Soft Tissue Injuries." (Exhibit G). He opined that the neurological examination of plaintiff Cid , "...did not reveal objective findings to substantiate his subjective complaints..." (Exhibit G). Dr. Tikoo further opined that plaintiff Cid "is not disabled" and that "a permanent injury has not been sustained." (Exhibit G).
Finally, defendants submit the affirmed report of Audrey Eisenstadt, M.D., a radiologist who examined the MRI taken of plaintiff's Cid cervical spine on June 2, 2009. Dr. Eisenstadt concluded that there is evidence of prior degenerative disc disease with disc bulging. However, she opines that the disc bulging, "is not traumatic in origin It is degeneratively induced, related to liagmentous laxity This pre-existing degenerative finding suggest that the C5-6 disc herniation has a degenerative etiology." (Exhibit H).
Additionally, plaintiff Cid has not demonstrated that he has sustained a serious injury under the 90/180 category defined in Insurance Law §5102(d).
As a result of the foregoing, defendants assert that plaintiff Cid did not sustain a serious injury and summary judgment should be granted in their favor.
This court finds that the evidence submitted by the defendants satisfied their initial burden of demonstrating that the plaintiffs did not sustain a serious injury. Plaintiffs failed to submit any papers in opposition to defendants' motion and, thus, have failed to refute defendants' contention that they did not sustain a serious injury.
Accordingly, defendants' motion for summary judgment is granted and plaintiffs' complaint is dismissed.
Defendants are directed to serve a copy of this order with notice of entry upon the plaintiffs and file proof thereof with the clerk's office. [*4]
This constitutes the decision and order of the court.
Dated: March 16, 2012
J.S.C.
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