Thompson v Abbasi

[*1] Thompson v Abbasi 2003 NY Slip Op 51761(U) [24 Misc 3d 1236(A)] Decided on July 1, 2003 Supreme Court, Bronx County Stinson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2003
Supreme Court, Bronx County

Samuel Thompson, Plaintiff,

against

Naimatullah Abbasi and N & A TAXI, Defendants.



20347/2001



Counsel for Plaintiff: Daniel Chavez, Esq.

Law Offices of Daniel Chavez

840 Grand Concourse, Suite 2AA

Bronx, New York 10451

(718) 292-4500

Counsel for Defendants: Thomas Tort, Esq., of counsel

Gerber & Gerber, LLP

26 Court Street, Suite 1100

P.O. Box 02 1393

Brooklyn, New York 11202-0032

(718) 834-4850

Betty Owen Stinson, J.

This motion by defendant N & A Taxi ("defendant") for summary judgment dismissing the complaint for plaintiff's failure to demonstrate a serious injury is granted.

Plaintiff was allegedly injured in a motor vehicle accident with defendant's taxi on November 25, 1999. Plaintiff stated in his deposition that he briefly lost consciousness after the accident and was taken to an emergency room where he was examined and released with pain medication and a cervical collar. The following day, plaintiff visited a chiropractor and treated with him for approximately five months. Plaintiff stated that he could not get out of bed unassisted for a week after the accident and returned to work two weeks after the accident. Plaintiff commenced suit alleging injuries in his Bill of Particulars including herniated nucleus pulposus at C3-C4 and C6-C7, concussion, cervical radiculopathy, lumbar and thoracic strain and sprain with lumbar radiculopathy and traumatic synovitis of the left wrist. After discovery was completed, defendant made the instant motion for summary judgment.

Summary judgment is appropriate when there is no genuine issue of fact to be resolved at [*2]trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]).

In order to recover for pain and suffering resulting from an automobile accident under New York's "No-Fault" statute, Insurance Law § 5104, the plaintiff must establish, as a threshold matter, that the injury suffered was a "serious injury" within the meaning of the statute.

"Serious injury" is defined by Insurance Law § 5102(d) to include, among other things not relevant here, a "permanent consequential limitation of use of a body organ or member", a "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 person 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."

To make out a prima facie case of serious injury, a plaintiff must produce competent medical evidence that injuries are either "permanent" or involve a "significant" limitation of use (Kordana v. Pomelito, 121 AD2d 783 [3rd Dep't 1986]). A finding of "significant limitation" requires more than a mild, minor or slight limitation of use (Broderick v. Spaeth, 241 AD2d 898, lv denied, 91 NY2d 805; Gaddy v. Eyler, 167 AD2d 67, aff'd, 79 NY2d 955). "Consequential" loss means an "important" or "significant" one (Dwyer v. Tracey, 105 AD2d 476 [3rd Dep't 1984]). Strictly subjective complaints of a plaintiff unsupported by credible medical evidence do not suffice to establish a serious injury (Scheer v. Koubek, 70 NY2d 677 [1987]). "Substantially all" standard "requires a showing that plaintiff's activities have been restricted to a great extent rather than some slight curtailment" (Berk v. Lopez, 278 AD2d 156 [1st Dep't 2000], lv denied, 96 NY2d 708).

An affidavit or affirmation by the person conducting a physical examination of the plaintiff is necessary to establish a serious injury (Grossman v. Wright, 268 AD2d 79 [3rd Dep't 2000]; see also Zoldas v. Louise Cab Co., 108 AD2d 378 [1st Dep't 1985]). The affidavit or affirmation must set forth the objective medical tests and quantitative results used to support the opinion of the expert (Grossman, 268 AD2d 79). "An expert's qualitative assessment of plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system (cite omitted)" (Toure v. Avis Rent A Car Systems, 98 NY2d 345 [2002]). A conclusory affidavit of the doctor does not constitute medical evidence (Zoldas, 108 AD2d 378).

A defendant's motion for summary judgment, on the other hand, may be granted without an affidavit from the defendant's medical expert where there is lack of merit to the plaintiff's claim of serious injury (Wright v. Melendez, 140 AD2d 337 [2nd Dep't 1988]; Padron v. Hood, 124 AD2d 718 [2nd Dep't 1986]). In addition, a defendant may rely upon an unsworn report of plaintiff's physician or hospital records provided by plaintiff's counsel as uncontroverted facts in support of a summary judgment motion (Lowe v. Bennett, 122 AD2d 728 [1st Dep't 1986]).

Although a bulging or herniated disc may constitute a serious injury, the plaintiff must provide objective evidence of the extent or degree of alleged physical limitation resulting from [*3]the disc injury and its duration (Duldalao v. City of New York, 284 AD2d 296 [2nd Dep't 2001; see also Mcloyrd v. Pennypacker, 178 AD2d 227 [1st Dep't 1991, lv denied, 79 NY2d 754] [sprain and strain of cervical and lumbar spine with radiculitis and disc herniation, standing alone, not sufficient to support claim of serious injury]). A plaintiff's subjective complaints of pain are insufficient, without more, to establish that herniated discs constitute a serious injury (Pierre v. Nanton, 279 AD2d 621 [2nd Dep't 2001]).

In support of its motion for summary judgment, defendant offered the affirmed reports of Dr. Menachem Y. Epstein, orthopedist, and Dr. Naunihal S. Singh, neurologist. Dr. Epstein examined plaintiff on October 24, 2001. Dr. Epstein stated that plaintiff complained of headaches, neck and lower back pain. Dr. Epstein stated that he found full range of motion in plaintiff's cervical and lumbar spine, no evidence of the lumbar and thoracic sprain and strain or left wrist synovitis upon physical examination and no disability or functional impairment. No medical records or imaging studies were made available for Dr. Epstein's review.

Dr. Singh stated that plaintiff complained of headaches, neck and lower back pain at the time of his neurological examination on October 24, 2001. Dr. Singh stated that he found full range of motion of plaintiff's cervical and lumbar spine, no spasm or tenderness and no signs or symptoms of herniated nucleus pulposus at C3-C4 or C6-C7, concussion syndrome, cervical or lumbar radiculopathy. Only the Bill of Particulars was made available for Dr. Singh's review.

In opposition to the motion, plaintiff offered the affirmation of a neurologist, Dr. Hal S. Gutstein, unsworn MRI reports of plaintiff's cervical spine and left wrist, plaintiff's deposition testimony and plaintiff's affidavit.

Dr. Gutstein stated that he examined plaintiff on December 3, 1999, eight days after the subject accident. Dr. Gutstein stated that plaintiff complained of pain in his neck and shoulders, left wrist and bilateral back pain, weakness in his grip, dizziness, lightheadedness, difficulty concentrating and lapses in memory. Dr. Gutstein stated that he found spasm in plaintiff's cervical and lumbosacral spine, scoliosis and painful left wrist. Dr. Gutstein's impression at the time was concussion, cervical radiculopathy, lumbar thoracic strain and sprain, possible radiculopathy and left wrist injury. Dr. Gutstein referred plaintiff for MRI's of his wrist and cervical spine, reviewed the films himself and concluded that they confirmed his medical opinions. The MRI report of the wrist, dated January 28, 2000, showed "no abnormal fluid collections", "findings consistent with lunatal abuttment syndrome" and "findings suggestive of osteoarthritis about the base of the 5th metacarpal". The MRI report of the cervical spine, dated January 28, 2000, showed reversal of the normal lordotic curvature consistent with muscle spasm, and a left paracentral herniated nucleus pulposus at both C3-C4 and C6-C7, impinging on the thecal sac and cervical cord, respectively. Dr. Gutstein stated that he examined plaintiff again on July 5, 2002 two and one-half years later. Plaintiff complained at that time of pain and limitations of motion in the neck and upper back.

Dr. Gutstein stated that, "on said date", he found spasm and tenderness in plaintiff's cervical spine and decreased range of motion of the cervical spine: 60 degrees out of a normal 75 degrees of flexion, 20 degrees out of a normal 30 degrees of extension, 30 degrees out of a normal 45 degrees of right rotation and 35 degrees out of a normal 45 degrees of left rotation. Dr. Gutstein stated that, within a reasonable degree of medical certainty, he found plaintiff to have suffered cervical spine derangement, herniations at C3-C4 and C6-C7, left wrist synovitis [*4]and concussion as a result of the subject accident. Dr. Gutstein concluded that, "[b]ased on the anatomical derangements noted on the exams", plaintiff sustained "permanent consequential damage to the cervical spine and adjacent muscolo-ligamentous tissues." Dr. Gutstein also concluded that plaintiff sustained a "significant limitation of his cervical spine", a "permanent consequential limitation of use of his cervical spine" and a "medically determined injury which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities, mainly his ability to interact with his patients at work and his family, during the 180 days, immediately following the occurrence."

At plaintiff's deposition on February 11, 2002, plaintiff complained that his "range of motion is less." Plaintiff stated that he had to modify everything he does: "[p]laying sports, running, jogging, just playing around with my kids" and he does not play much basketball anymore, because "[a]fter a little while, after a half of running like half the time my back starts hurting." Plaintiff stated that, after jogging a couple of times around a running track, approximately one-half mile, he feels pain in the "mid to lower region" of his back. Plaintiff testified that he is a member of a gym, going two times a week, and that he only uses the bicycle and "hit[s] the heavy bag a little bit". Plaintiff testified that he is limited in his job as a visiting nurse in that, before he would go to see seven people whereas now he will only go to see four.

Plaintiff stated in his affidavit, dated October 30, 2002, that he did not seek further medical treatment after five months of chiropractic treatment, even though he still had pain, because his condition had not improved despite numerous visits to the chiropractor. He stated that pain lessened with treatment, but that relief was only temporary. Plaintiff stated that he is unable to use his neck and back to the extent he did before the accident and he cannot "fully" use his wrist; "sleeping" or "doing dishes" causes pain. Plaintiff stated that his neck "stiffens" and his left wrist "locks". Plaintiff stated that he cannot sit for more than thirty minutes without "excruciating" pain to his neck, so that he cannot drive long distances, go to the movies or participate in social or recreational activities which require moving his neck "a lot." Plaintiff stated that "difficulty" using his back causes "limitations" on daily activities which involve bending, lifting, reading, walking, sitting and driving, that he can no longer help with cooking and cleaning as he did before and cannot move furniture or clean the bathtub. Plaintiff stated that he takes Tylenol or Motrin and uses hot showers and heating pads for pain two to three times a week.

Defendant has demonstrated its entitlement to summary judgment which plaintiff has not refuted with admissible evidence to create a genuine issue of fact for trial. Defendant offered the sworn reports of its examining doctors who found no injury, no disability and no functional impairment to any of the allegedly affected parts of plaintiff's anatomy, thus satisfying its burden to demonstrate plaintiff's inability to make a prima facie case of serious injury.

In opposition, plaintiff offered his deposition testimony, his affidavit drafted in response to this motion and the sworn statement of a neurologist who examined him eight days after the accident and then two and one-half years later. Although plaintiff continued to complain in his deposition testimony and affidavit that his lower back causes him pain and that his left wrist "locks", his own examining neurologist concluded that plaintiff had suffered permanent damage and significant limitation of use only to his cervical spine. Thus, plaintiff offered no objective medical evidence to create an issue of fact as to whether he suffered a serious injury either to his [*5]left wrist or to his lower back. Plaintiff's subjective complaints of pain to his lower back and "locking" of his wrist, unsupported by any medical evidence, are insufficient to create an issue of fact for trial (see Scheer, 70 NY2d 677).

In addition, the sworn statement of plaintiff's examining neurologist, Dr. Gutstein, is insufficient to show that plaintiff suffered a "medically determined injury" preventing him from performing "substantially all of the material acts" constituting his usual and customary daily activities for 90 out of the 180 days immediately following the subject accident. The uncontested fact offered by plaintiff in his Bill of Particulars that he returned to work two weeks after the accident is enough by itself to eliminate recovery under that portion of the statute. Furthermore, Dr. Gutstein's statement that plaintiff was unable to perform his usual and customary activities "mainly in his ability to interact with his patients at work and his family" is not only vague and conclusory, but does not sufficiently assert that plaintiff's activities were "restricted to a great extent rather than some slight curtailment" (see Berk, 278 AD2d 156).

As far as plaintiff's claim of permanent consequential or significant limitation of use of his cervical spine, neither plaintiff's deposition testimony, his affidavit nor Dr. Gutstein's sworn statement are sufficient to create an issue of fact regarding whether plaintiff suffered an injury to his cervical spine that was either permanent or involved more than a mild, minor or slight limitation of use (see Kordana, 121 AD2d 783; Broderick, 241 AD2d 898). Dr. Gutstein's affirmation refers to two examinations separated by two and one-half years but does not sufficiently identify the visit at which he found spasm and tenderness and the cervical range of motion measurements were made. His affirmation does not refer to events or findings in chronological order so that it would be possible for this court to determine whether the reported measurements were made shortly after the accident or two and one-half years later. To compound matters, plaintiff did not offer Dr. Gutstein's reports or notes of the separate visits to ameliorate that confusion, nor did plaintiff offer any report or affidavit of his treating chiropractor. Furthermore, Dr. Gutstein did not specify which tests he used to detect spasm or limitation of motion, but merely characterized them generally as "objective". He described plaintiff's injuries as "permanent", yet stated that "future treatments would include therapy, medication, home care program and medical follow up". In the next paragraph, he stated that the "permanent nature of these injuries also eliminates any additional treatment as the injuries are permanent in nature." In sum, Dr. Gutstein's affirmation is vague, conclusory and merely repeats statutory language (see Lopez v. Senatore, 65 NY2d 1017 [1985] [conclusory assertions in an expert's affidavit tailored to meet statutory requirements of Insurance Law § 5102(d) insufficient to defeat summary judgment]).

Plaintiff's MRI report of the cervical spine is unsworn. Dr. Gutstein stated that he reviewed plaintiff's MRI films and that they confirmed Dr. Gutstein's "medical opinions of his condition." Dr. Gutstein did not specify whether those "opinions" represented plaintiff's condition shortly after the accident or two and one-half years later. Nevertheless, assuming the unsworn MRI report as true, that alone is not enough to show a serious injury (see Duldalao, 284 AD2d 296; McLoryd, 178 AD2d 227). As far as plaintiff's inability to play "much basketball anymore", run or jog or play around with his kids, the only activities plaintiff claimed as limited at the time of his deposition, plaintiff attributed those limitations entirely to lower back pain. Plaintiff testified he was still able to use the bicycle at the gym and "hit the heavy bag". The [*6]only complaint regarding his neck at the time of the deposition testimony was that his "range of motion" was limited. By contrast, the complaints attributed specifically to his neck in plaintiff's affidavit are that sitting for more than thirty minutes causes "excruciating pain", that pain in his neck keeps him from sleeping and helping with household chores as he did before, that he has "difficulty" moving his neck in "several directions" and that it "stiffens". Plaintiff has never sought medical treatment for this "excruciating pain" more than two years after discontinuing chiropractic care that gave him relief, albeit temporary. Nor has he been given prescription medication for this problem, but rather takes Tylenol or Motrin two to three times weekly "when the pain is worse". These subjective complaints in plaintiff's affidavit, unsupported by credible medical evidence, are insufficient to establish that the allegedly herniated cervical discs constitute a serious injury (see Pierre, 279 AD2d 621). Nor can plaintiff create his own issue of fact by a self-serving affidavit, drafted in response to a summary judgment motion, which contradicts earlier testimony. Therefore, plaintiff's complaint is dismissed.

Movant is directed to serve a copy of this order on the Clerk of Court who shall enter judgment dismissing the complaint.

This constitutes the decision and order of the court.

Dated: July, 2003

Bronx, New York

_______________________________

BETTY OWEN STINSON, J.S.C..