Morris v Levitin

[*1] Morris v Levitin 2004 NY Slip Op 51905(U) [13 Misc 3d 1220(A)] Decided on October 10, 2004 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 10, 2004
Supreme Court, Richmond County

Orla A. Morris, Plaintiff,

against

Yulia Levitin and STEVEN TULOTTA, Defendants.



12646/04

Philip G. Minardo, J.

Upon the foregoing papers, defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff's injuries fail to meet the statutory threshold of "serious injury" as defined in Insurance Law §5102(d) is denied.

This matter arises out of a two vehicle accident which occurred on May 4, 2004, on Richmond Avenue near the intersection of Nome Avenue, Staten Island, New York. As a result, plaintiff claims to have sustained "serious" personal injuries, i.e., "a permanent injury, a disabling injury for a period in excess of 90 out of the first 180 days following this occurrence...a significant limitation of use of a bodily function or system;...significant disfigurement [and]...a permanent consequential limitation of use of a bodily organ and/or member" (Plaintiff's December 8, 2004 Verified Bill of Particulars, para 11 [ Defendants' Exhibit C]). More particularly, plaintiff claims to have sustained, inter alia, "cervical radiculopathy, cervical sprain/strain, lumbosacral radiculopathy, lumbar sprain/strain, depression, headaches, anxiety, fear and emotional upset and [*2]shock" (Id., para 3).[FN1]

In support of their motion to dismiss the complaint, defendants attach the October 27, 2005 affirmation of a neurologist, Dr. Naunihal Sachdev Singh, who examined and diagnosed plaintiff with "resolved lumbar spine sprain." The doctor concluded that "there is no neurological disability...and claimant is able to return to pre-loss activity levels, including occupational duties" (see Defendants' Exhibit F). Also attached in support of the motion is the November 17, 2005 affirmation of an orthopedist, Dr. Robert Israel, who examined and diagnosed plaintiff with "resolved cervical and lumbar spine sprains, and resolved right knee sprain." Dr. Israel concluded that "any allegations [by plaintiff] of continued injury are unsupported on careful examination. From an orthopedic point of view the claimant has no evidence of disability" ( see Defendants' Exhibit E).

In opposition, plaintiff argues that the injury to her spine is "serious" within the meaning of Insurance Law §5102(d), and attaches, inter alia, a July 24, 2006 Affidavit in which she sets forth her physical complaints and course of physical therapy, as well as an economic reason for the two-year gap in treatment (see Plaintiff's Exhibit A). In addition, plaintiff submits the July 20, 2006, and July 21, 2006 affirmed reports of a neurologist, Dr. Aric Hausknecht, who, in addition to conducting his own examination of plaintiff, personally reviewed and rendered an opinion on the cervical MRI films which were taken within one week of the occurrence (see Plaintiff's Exhibits C and D). According to Dr. Hausknecht, plaintiff's herniated discs at C3-4 and C4-5, and the disc bulges at C5-6 and C6-7 are causally related to the May 4, 2004 motor vehicle accident. Finally, plaintiff submits the certified medical records of Continental Medical, P.C., relating to plaintiff's treatment (see Plaintiff's Exhibit E).

CPLR 3043(b) provides in pertinent part as follows:

"A party may serve a Supplemental Bill of Particulars with respect to claims of continuing special damages and disability without leave of court at any time - but not less than 30 days prior to trial. Provided however that no new cause of action may be alleged or new injury claimed..."

Moreover, under CPLR 3043(c), the Court is given broad discretion to grant leave for the service of

"other, further or different particulars" as may be warranted in a proper case.

As a threshold matter, while plaintiff clearly should have alleged the herniated and bulging discs in her initial bill of particulars, the Court finds that defendants were placed on notice of those injuries through the availability of plaintiff's medical records, which were in fact reviewed by their medical experts. Accordingly, defendants will not be prejudiced by the service of a Supplemental Bill of Particulars which merely memorializes the information set forth in plaintiff's May 19, 2004 [*3]MRI.Turning to the motion for summary judgment, the supporting affirmations of Drs. Singh

and Israel constitute a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the May 4, 2004 accident (see Holmes v. Hanson, 286 AD2d 750 citing Duldulao v. City of New York, 284 AD2d 296; Villalta v. Schechter, 273 AD2d 299; Nisnewitz v. Renna, 273 AD2d 210; Guzman v. Michael Mgt., 266 AD2d 508; Kosto v. Bonelli, 255 AD2d 557). Consequently, it is plaintiff's burden to come forward with sufficient evidence demonstrating the existence of a triable issue of fact on serious injury in order to avoid summary judgment (see e.g. Gaddy v. Eyler, 79 NY2d 955).

In the opinion of this Court, the two affirmations from Dr. Hausknecht are sufficient to raise a triable issue of fact as to the seriousness of plaintiff's injuries. As applicable, Dr. Hausknecht's conclusions of, e.g., plaintiff's losses in flexion, are supported by objective medical evidence, including MRI films, protractor and goniometer readings, straight leg raising and range of motion testing, and have been stated numerically relative to established norms (see Toure v. Avis Rent A Car Sys., 98 NY2d 345). "It is well established that conflicting expert opinions may not be resolved on a motion for summary judgment" (Corbett v. County of Onondaga, 291 AD2d 886, 887, quoting Williams v. Lucianatelli, 259 AD2d 1003, 1003 [internal quotation marks omitted]). As a result, defendants' motion for summary judgment dismissing the complaint for failure to meet the statutory threshold of serious injury must be denied.

Accordingly, it is

ORDERED, that defendants' motion for summary judgment is denied, and it is further

ORDERED, that plaintiff is permitted to serve and file a Supplemental Bill of Particulars which informs the defendants of her MRI of May 19, 2004.

This shall constitute the decision and order of the court.

E N T E R

______________________________

J. S. C.

Dated: Oct. 10, 2004 Footnotes

Footnote 1:It appears undisputed that plaintiff's May 19, 2004 cervical MRI study performed at Continental Medical, P.C., reflects herniated discs at C3-C4 and C4-C5, as well as bulging discs at C5-C6 and C6-C7 (see Plaintiff's Exhibit B). Plaintiff failed to incorporate these claims into her Verified Bill of Particulars, and defendants have refused to accept plaintiff's attempted service of a post-Note of Issue Supplemental Verified Bill of Particulars recounting these cervical herniation(s) and bulges. Plaintiff claims that defendants' refusal is unwarranted. A Note of Issue was filed on April 7, 2006.