Jones v Ma

[*1] Jones v Ma 2016 NY Slip Op 51838(U) Decided on December 7, 2016 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 7, 2016
Supreme Court, Queens County

Bertha Jones, CORENE CHRISTIAN, SUSIE THOMPSON and DAISY WADLINGTON, Plaintiffs,

against

Rogluo Ma, ALBERT MACK, JR. and SOUTHERN BAPTIST CHURCH, INC. d/b/a SOUTHERN BAPTIST CHURCH, Defendants.



14409/2014
Robert J. McDonald, J.

The following papers numbered 1 to 13 read on this motion by defendant ROGLUO MA for an order pursuant to CPLR 3212, granting defendant summary judgment and dismissing the complaint of plaintiffs BERTHA JONES and DAISY WADLINGTON on the ground that said plaintiffs fail to meet the serious injury threshold requirement of Insurance Law § 5102(d); and on this cross-motion by defendants ALBERT MACK, JR. and SOUTHERN BAPTIST CHURCH, INC. d/b/a SOUTHERN BAPTIST CHURCH for same:

Papers/Numbered

Notice of Motion-Affirmation-Exhibits...................1 - 4

Notice of Cross-Motion-Affirmation-Exhibits.............5 - 8

Affirmation in Opposition-Exhibits......................9 - 11

Reply Affirmation......................................12 - 13

This is a personal injury action in which plaintiffs seek to recover damages for injuries they each allegedly sustained in a motor vehicle accident that occurred on May 22, 2014 on 34th Avenue at or near its intersection with 108th Street, in Queens [*2]County, New York. Plaintiff Jones alleges that as a result of the accident she sustained serious injuries to her left shoulder, right knee, lumbar spine, and cervical spine. Plaintiff Wadlington alleges that as a result of the accident she sustained serious injuries to her right knee, pelvis, lumbar spine, and cervical spine.

Plaintiffs commenced this action by filing a summons and complaint on September 30, 2014. Defendants Albert Mack, Jr. and Southern Baptist Church, Inc. d/b/a Southern Baptist Church joined issue by service of an answer dated November 3, 2014. Defendant Rogluo Ma joined issue by service of an answer dated November 12, 2014. All defendants now move for an order pursuant to CPLR 3212, dismissing the complaint of plaintiffs Jones and Wadlington on the ground that the injuries claimed by each fail to satisfy the serious injury threshold requirement of Section 5102(d) of the Insurance Law.

In support of the motion, defendant Ma submits an affirmation from counsel, William B. Stock, Esq.; a copy of the pleadings; a copy of plaintiffs' verified bill of particulars; copies of the affirmed medical reports of Drs. Marianna Golden, Frank D. Oliveto, and Bert R. Heyligers; and copies of the transcripts of the examinations before trial of plaintiffs Jones and Wadlington taken on November 5, 2015. Co-defendants submit an affirmation from counsel, Claudia P. Lovas, Esq., adopting the arguments set forth in Mr. Stock's affirmation.

At her examination before trial, plaintiff Jones testified that she was taken by ambulance from the scene of the accident to NY Hospital. A hard collar/brace was put around her neck. She complained of left shoulder and right knee pain. Following the accident, she went to physical therapy three times a week for six months, and then two times a week for another six months. She still feels pain everyday. She cannot walk for more than three blocks at a time due to her knee pain. She has difficulty climbing stairs and walking. She cannot do her housework because of the pain. She takes Tylenol for her knee pain. Prior to the subject accident, she used a cane after she had knee replacement surgery. She stopped using a cane in April 2002. However, she did start using a cane again after the subject accident. She was not confined to bed or home following the subject accident.

Dr. Golden examined plaintiff Jones on December 9, 2015. Jones presented with pain in her neck, low back, left shoulder, and right knee, and headaches. Dr. Golden notes that Jones walks with a cane. Dr. Golden identifies the records she reviewed, and performed a neurologic examination. Dr. Golden concludes that there is no evidence of a neurologic disability, and Jones is [*3]able to perform activities of daily living without restrictions or limitations. She further opines that there is no evidence of permanency, radiculopathy, and Jones is neurologically intact with normal reflex, motor, and sensory examinations.

Dr. Oliveto performed an orthopedic evaluation on Jones on December 9, 2015. Jones reported complaints of headaches and pain in her neck, low back, left shoulder, and right knee. Dr. Oliveto identifies the records he reviewed, and performed range of motion testing with a goniometer. Dr. Oliveto found decreased ranges of motion in Jones' cervical spine and lumbar spine. He attributes the decreased ranges of motion to the fact that range of motion testing is considered subjective. Dr. Oliveto opines that Jones has normal sensation, reflexes, and muscle strength, and all other orthopedic testing was negative. He concludes that there are no positive objective physical findings to confirm any of Jones' subjective complaints, and there is no evidence of an orthopedic disability. Moreover, Dr. Oliveto states that Jones is able to perform activities of daily living without restrictions or limitations, and there is no evidence of permanency.

Dr. Heyligers performed an independent radiological review of the CT scan of Jones' cervical spine taken on June 13, 2014. Dr. Heyligers opines that there is no evidence of disc herniation, and the examination reviewed reveals degenerative changes.

At her examination before trial, Wadlington testified that she was taken to NY Hospital by ambulance from the scene of the accident. She complained of pain in her back and right knee. Following the accident, she went for physical therapy three times a week for four months, and then for two times a week for three to four more months. She was given three injections in her right knee. The orthopedic surgeon recommended surgery on her right knee. She did not get surgery because she thought it would not help. She feels pain in her back and right knee everyday. She does home exercises. She takes Tylenol and Advil for the pain everyday. Before the accident, she used to walk about a mile for exercise. After the accident, she can only walk blocks before feeling pain in her right knee. She cannot lift or clean. She was not confined to bed or home following the subject accident.

Dr. Golden performed an independent neurologic evaluation on Wadlington on December 9, 2015. Wadlington presented with current complaints of pain in her neck that radiates to her upper extremities, and pain in the lower back that radiates to her lower extremities. She also reported that she has pain in the right hip and right knee. Dr. Golden identifies the records she [*4]reviewed, and performed a neurologic examination. Dr. Golden concludes that there is no evidence of a neurologic disability, and Wadlington is able to perform activities of daily living without restrictions or limitations. She further opines that there is no evidence of permanency.

Dr. Oliveto performed an orthopedic evaluation on Wadlington on December 9, 2015. Wadlington reported complaints of pain in the neck that radiates to the upper extremities, pain in the lower back that radiates to the lower extremities, and pain in the right hip and right knee. Dr. Oliveto identifies the records he reviewed, and performed range of motion testing with a goniometer. Dr. Oliveto found decreased ranges of motion in Wadlington's cervical spine and lumbar spine. He attributes the decreased ranges of motion to the fact that range of motion testing is considered subjective. Dr. Oliveto opines that there are no positive objective physical findings to confirm any of Wadlington's subjective complaints, and there is no evidence of an orthopedic disability. Moreover, Dr. Oliveto states that Wadlington is able to perform activities of daily living without restrictions or limitations, and there is no evidence of permanency.

Dr. Heyligers performed an independent radiological review of the MRI of Wadlington's cervical spine taken on July 7, 2014. Dr. Heyligers opines that there is multilevel degenerative disc disease, reversal of the normal cervical lordosis, posterior disc bulging C3-4 through C6-7, and multilevel osteophytic ridging. He also reviewed the MRI of the lumbar spine taken on July 16, 2014. Dr. Heyligers opines that there is multilevel degenerative disc disease, and Schmorl's node at the superior endplate of L3, which he notes is chronic in nature.

Defendants contend that the evidence submitted is sufficient to establish, prima facie, that neither plaintiff has sustained an injury which resulted in a consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system. Defendants also contend that plaintiffs, who each testified that they were not confined to home or bed following the accident, did not sustain a medically determined injury or impairment of a nonpermanent nature which prevented them, for not less than 90 days during the immediate 180 days following the occurrence, from performing substantially all of their usual daily activities.

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action (Wadford v [*5]Gruz, 35 AD3d 258 [1st Dept. 2006]). "[A] defendant can establish that a plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the 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 [1st Dept. 2000]). Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230 [1982]).

Where the defendant's motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992]; Zuckerman v City of New York, 49 NY2d 557[1980]; Grossman v Wright, 268 AD2d 79 [2d Dept 2000]).

This Court finds that the conclusion that neither plaintiff had a disability or impairment was directly contradicted by Dr. Oliveto's recorded objectively-measured limitations in range of motion (see Ambroselli v Team Massapequa, Inc., 88 AD3d 927 [2d Dept. 2011]; Ballard v Cunneen, 76 AD3d 1037 [2d Dept. 2010]; Sainnoval v Sallick, 78 AD3d 922 [2d Dept. 2010]). Although Dr. Oliveto states that range of motion testing is subjective in nature, Dr. Oliveto used a goniometer, deduced the ranges of motion from objective analysis rather than from just the subjective complaints of the plaintiffs, and compared the recorded ranges of motion to the normal ranges of motion.

Based on the foregoing, defendants failed to make a prima facie showing of entitlement to judgment as a matter of law that plaintiffs did not each sustain a serious injury within the meaning of Insurance Law § 5102(d), tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Reynolds v Wai Sang Leung, 78 AD3d 919 [2d Dept. 2010]). Where a defendant fails to meet the defendant's prima facie burden, the court will deny the motion for summary judgment regardless of the sufficiency of the opposition papers (see Ayotte v Gervasio, 81 NY2d 1062 [1993]; Barrera v MTA Long Island Bus, 52 AD3d 446 [2d Dept. 2008]; David v Bryon, 56 AD3d 413 [2d Dept. 2008]).

In any event, plaintiffs raised triable issues of fact as to whether they each sustained a serious injury by submitting the affirmed medical reports of Drs. Ketan D. Vora and Lam Quan [*6]attesting to the fact that each plaintiff sustained injuries as a result of the subject accident, finding that each plaintiff had significant limitations in ranges of motion both contemporaneous to the accident and in recent examinations regarding Jones' cervical spine, lumbar spine, left shoulder, and right knee, and regarding Wadlington's cervical spine, lumbar spine, and bilateral knees, and concluding that the limitations are permanent and causally related to the accident (see Perl v Meher, 18 NY3d 208 [2011]; David v Caceres, 96 AD3d 990 [2d Dept. 2012]; Martin v Portexit Corp., 98 AD3d 63 [1st Dept. 2012]; Ortiz v Zorbas, 62 AD3d 770 [2d Dept. 2009]; Azor v Torado,59 AD2d 367 [2d Dept. 2009]).

Accordingly, for the reasons set forth above, it is hereby,

ORDERED, that the motion by defendant ROGLUO MA and the cross-motion by defendants ALBERT MACK, JR. and SOUTHERN BAPTIST CHURCH, INC. d/b/a SOUTHERN BAPTIST CHURCH for an order pursuant to CPLR 3212, granting defendants summary judgment and dismissing the complaint of plaintiffs BERTHA JONES and DAISY WADLINGTON are denied; and it is further

ORDERED, that this matter remains on the calendar of the Trial Scheduling Part for February 22, 2017.

Dated: December 7, 2016

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.