Thomas v Bryan

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Thomas v Bryan 2013 NY Slip Op 33784(U) July 24, 2013 Supreme Court, Bronx County Docket Number: 302424/2011 Judge: Mitchell J. Danziger 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 Jul 26 2013 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: PART IA-2 ---------------------------------------------------------------X COLLIE THOMAS, Plaintiff, DECISION and ORDER Index No. 302424/2011 -againstPresent: Hon. Mitchell Danziger AJSC BEVERLY BRYAN and DANE BRYAN, Defendants. --------------------------------------'-----------------------X Recitation, as required by CPLR §2219(a), of the papers -considered in reviewing the underlying motion for summary judgment: Notice of Motion and annexed Exhibits and Affirmation ................................................... 1 Affirmation in Opposition .................................................................................................. 2 Further Affirmation in Opposition ...................................................................................... 3 Plaintiff.Collie Thomas commenced this action alleging th:1t he sustained serious injuries as a result of an automobile accident caused by the defendants' negligence on December 3, 2010. Defendants, Beverly Bryan and Dane Bryan move for sumraary judgment pursuant to CPLR 3212 on the ground that the plaintiff, Collie Thomas did not sustain serious injuries within the meaning oflnsurance Law 5102(d). The defendants offer as proof of the absence of serious injury to plaintiff, Collie Thomas the medical affirmation of Dr. Robert Israel, an orthopedist. Dr. Israel conducted an orthopedic examination of the plaintiff 9n June 6, 2012. Dr. Israel's repcrt concluded that the plaintiffs examination showed "no disability as a result of the accident of record." The doctor's report contains the following medical history: "He alleges injuries to his n~ck, upper back, lower back, right [* 2] FILED Jul 26 2013 Bronx County Clerk shoulder and right ankle." Range of motlon testing of the cervical ~:pine, thoracic spine and lumbar spine and right shoulder and right foot/ankle revealed normal ranges of motion. Dr. Israel's impression was that the plaintiff sustained sprains to the aforesaid areas that were resolved. In opposition to the motion, the plaintiff, Collie Thomas submits an affidavit from Dr. Henry Hall who examined the plaintiff on December4, 2010. The plaintifl'complained as follows: "Severe pain in the right ankle, knee and shoulder and in the neck and back." Range of motion testing on December 4, 2010 of the cervical and lumbar spine revealed that he was "unable to perform" these tests due to plaintiffs complaints of"extreme pain." On December 17, 2010 range of motion studies revealed as follovrs: Cervical spine: Flexion 19 degrees (normal 50); Extension 20 d'egrees (normal 60); Left lateral flexion 10 degrees (norma. 45); right lateral flexion 13 degrees (normal 45). Lumbar spine: Flexion 37 degrees (normal 60); Exte11sion 6 degrees (normal 25); Left and right rotation 11 degrees (normal 30). The plaintiff received the following medical treatment: "The patient began a course of physical therapy and chiropractic treatments coming five times a week for approximately three months and continuing to date at lesser frequency." The plaintiff was re-examined on August 21, 2012 which revealed as follows: Cervical spine: Flexion 20 degrees (normal 60); Extension 20 degrees (normal 50); Left rotation 25 degrees (normal 80): right rotation 35 degrees (normal 80); left lateral flexion 10 degree:; (normal 40); right lateral flexion 15 degrees (normal 40). 2 [* 3] FILED Jul 26 2013 Bronx County Clerk Lumbar spine: Flexion 30 degrees (normal 90); Extension I 0 degrees (normal 30); left and right rotation I 0 degrees (normal 30); left and right lateral flexion 5 degrees (normal 20). Dr. Hall's Affidavit incorporates his narrative report date( August 31, 2012. Dr. Hall's report concluded as follows: "The patient, as a direct result of the accident on 12/3/10, sustained permanent injuries to his spine, muscular, and neurological systems." Dr. Hall opined that the plaintiff's injuries were causally related to the accident. Further, "the patient has reached maximum medical improvement." In opposition, plaintiff submits an affirmation from Dr. Ellen Ginsberg who examined the plaintiff for "pain management evaluation" on December 9, 2010. The doctor's report indicates the following medical treatments: "In December 20 I 0, the patient began a course of physical therapy, pain management and chiropractic treatments five times a week for approximately three months and continuing to date at lesser frequency." Range of motion testing on October 23, 2012 revealed as follows: Cervical spine: Flexion 30 degrees (normal 60); Extension 25·degrees (normal 50); Left and right rotation 40 degrees (n01 ma! 80); Left and right lateral flexion 20 degrees (normal 40). Lumbar spine: Flexion 45 degrees (normal 90); Extension 15 degrees (normal 30);Left and right rotation 15 degrees (n01 ma! 30); Left and right lateral flexion I 0 degrees (normal 20) .. Dr. Ginsberg's affirmed report incorporates her report dated October 24, 2012. Dr. Ginsberg's affirmed report concluded that plaintiff's injuries were causally related to the 3 [* 4] FILED Jul 26 2013 Bronx County Clerk accident. Further, "as a result of this accident, the patient has suffered a permanent loss of use of a body organ, member, a significant limitation of use of a body f Linction or system (cervical and lumbar spines) and that these injuries further rendered him unable to undertake substantially all of his usual and customary daily activities fclr not less than ninety (~10) days during the one hundred eighty [180] days immediately following the occurrence." In opposition to the motion the plaintiff submits an affirm:ition from Dr. Steve B. Losik, a radiologist with Excellent Medical Care Solution, P.C., (hereinaft" "Excellent"). The MRI of the cervical spine taken at Excellent on December 29, 2010 revealed as follows: "C4-5, C6-7 disc bulges compressing anterior thecal sac; CS-6 disc herniation compressin5 anterior thecal sac." The MRI of the right shoulder taken at Excellent on January· 18, 2011 showed as follows: "right shoulder MRI demonstrated conditions consistent with partial tear ... " The MF:! of the Lumbar spine taken at Excellent on January 4, 2011 revealed as follows: "L4-5 disc bulge with impingement. .. " In opposition to the motion the plaintiff submits an affirnation from Dr. Jacob Nir who performed alectromyography/nerve conduction testing on Januar:r 7, 2011. of the upper and lower extremities. The aforesaid tests showed "bilateral cervical radiculopathy of C5/C6 and right S 1 lumbar radiculopathy/right sciatica." DISCUSSION The proponent of a motion for summary judgment "musl. make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient eviience to demonstrate the absence 4 [* 5] FILED Jul 26 2013 Bronx County Clerk of any material issues of fact. Failure to make s~Ch prima facie :;howing requires a denial of the motion, regardless of the sufficiency of the opposing papers." (LfMD Holding Corp v Congress Financial Corporation, 4 NY 3d 373 [2005], quoting Alvarez v ?,•aspect Hospital, 68 NY 2d 320 [1986]; Lesane v Tejada, 15 AD 3d 358 [2"' Dept 2005].) In the present action, the burden rests on the defendants to establish, by the submission of evidentiary proof in admissible form, that the plaintiff did not suffer a serious injury as a result of the accident. The burden thereafter shifts to the ' plaintiff to demonstrate the existence ofa triable issue of fact. (Sefllinara v Grossman, 253 AD 2d 420 [2d Dept 1998].) The Court of Appeals emphasized in Pomme/ls v Perez tltat litigation can be commenced against a car owner or driver for damages caused by an accident only in the event of serious injury. (Pommelsv Perez, 4 NY 3d566 [2005]; Insurance Law §5104[a].) Insurance Law§ 5102(d) defines serious injury as: a personal injury which results in ........ permanenl lo:;s of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; signif cant limitation of use of a body function or system; or a medically de1ermined injury or impairment of a nonpermanent nature which prevt:nts the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the~ 80 days immediately following the occurrence of the injury or impairment. A claim of serious injury can be substantiated by an expert's designation of a numeric 5 [* 6] FILED Jul 26 2013 Bronx County Clerk percentage of a plaintiffs loss of range of motion. (Toure v Avis l'.ent A Car Systems, Inc., 98 NY 2d 345 [2002].) In the case of Lopez v Senatore (65 NY 2d 1017 [1985]), the Court held that where a treating physician, in an affidavit supported by exhibits, set forth the injuries and course of treatment, identified a limitation of movement of the neck of only 10 degrees to the right or left, and on that predicate expressed the opinion that there was a significant limitation of use of a described body function or system, such evidence was sufficient for the denial of summary judgment. A bulging or herniated disc may constitute serious injury if objective evidence exists as to the extent of the alleged physical limitation resulting from the disc injury and its duration. (Espinal v Galicia, 290 AD 2d 528 [2'd Dept 2002].) The medical reports are in conflict with respect to serious irljury. Dr. Israel, the defendants' orthopedist concluded that the plaintiffs. examination was nonnal. In contrast, Dr. Hall's report concluded that the plaintiff sustained pennanent injuries to l1is cervical and lumbar spines. In Pommels v Perez (4 NY 3d 566, supra), the Court of Appeals required a plaintiff who stops medical treatment to "offer some reasonable explanation for 11aving done so." This Court finds that the plaintiff has provided a reasonable explanation for his trt:atment gap. (See Brown v Achy, 9 AD 3d 30 [1" Dept 2004]; Turner-Brewster v Arce,17 AD 3d 189 [1" Dept 2005].) Viewing the objective medical evidence in a light most fa-torable to the plaintiff this Court finds that the plaintiffs limitations of motion of his cervical and lumbar spines both in the months following plaintiffs accident and thereafter describe a serious injury and raise a triable issue of fact. (Toure v Avis Rent A Car Systems, Inc., 98 NY 2d 345, supra; Brdwn v Achy, 9 AD 3d 30 [1 51 Dept 2004]; Vitale v Lev Express Cab Corp, 273 AD2d 225 [2'd Dept 2·JOO]; Dileo v Blumberg, 250 AD 6 [* 7] ' FILED Jul 26 2013 Bronx County Clerk ' 2d 364 [I" Dept 1998].) For the foregoing reasons, the motion by the defendants for summary judgment on threshold is denied with respect to the plaintiff, Collie Thomas. This constitutes the Decision and Order of this Court. Dated: July 24, 2013 So ordered, 7

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